The main legal point established in the judgment is that a decree under Section 10(1) of the Hindu Marriage Act must be specifically filed by referring to the provisions of Section 13(1)(ia) in the case of the husband for judicial separation. The judgment also emphasizes the significance of the word 'instead' in Section 13A, indicating that the court may pass a decree for judicial separation instead of divorce if it considers it just to do so, having regard to the circumstances of the case.

JUDGMENT

Rakesh Kumar Jain, J. (Oral) - This appeal has arisen from the judgment and decree dated 31.01.2014 passed by the learned Additional District Judge, Jhajjar, vide which the decree for judicial separation under section 10(1) of the Hindu Marriage Act, 1955 (for short 'the Act') on the ground of cruelty has been passed.

2. In brief, the marriage of the parties was solemnized on 10.03.2008 at Village Palri, Tehsil Charkhi Dadri, District Bhiwani as per Hindu rites. They do not have any child out of the wedlock. The respondent-husband filed a petition under Section 13(1) (ia) of the Act for seeking a decree of divorce, inter alia, on the grounds of cruelty and desertion. On the pleadings of the parties as many as 4 issues were framed by the trial Court on 12.05.2011 in which issue No. 1 pertains to cruelty and issue No.2 to desertion. Both the issues have been decided by the learned trial court against the husband-respondent as he could neither prove the element of cruelty and desertion. However, while deciding issue No.4 pertaining to relief, the following finding has been recorded:-

"In view of my above discussion concluded in para 31, decree for divorce under section 13(1)(ia) of HMA is declined, however, decree for Judicial Separation under section 10(1) of HMA, on ground of cruelty is hereby allowed. Decreesheet be prepared accordingly and file be consigned to the record room."

3. Learned counsel for the appellant has vehemently argued that the issue of relief has wrongly been decided by learned trial court. It is submitted that no petition was filed under Section 10(1) of the Act. Therefore, the decree under Section 10(1) of the Act could not have been passed. It is further submitted that if the Court had the jurisdiction to pass a decree under Section 13A of the Act for judicial separation but for that also the Court has to come to the conclusion that it is not a fit case for passing a decree of divorce rather it would be expedient to pass a decree for judicial separation. Further he has referred to the provisions of Section 10(1) of the Act, which is reproduced as under:-

Section 10(1) of the Act, referred to above provides that either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented."

4. Section 13(1) (ia) and (ib) of the Act which has reference in Section 10(1) of the Act are also relevant and is thus reproduced as under:-

section 13(1) in The Hindu Marriage Act, 1955 (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

5. On the other hand, learned counsel for the respondent has submitted that there is no error in the judgment dated 31.01.2014 insofar as issue of relief is concerned because the Court had the jurisdiction to pass decree of judicial separation as well.

6. We have heard learned counsel for the parties and perused the available record with their able assistance.

7. Two issues are involved in this case namely (i)whether the decree of judicial separation under Section 10(1) of the Act can be passed without there being a foundation for the said decree as the petitioner has filed the petition under Section 13(1)(ia) of the Act? and (ii) whether the Court had