JUDGMENT :

SUJOY PAUL, J.

1. The common judgment dated 27th March, 2019 passed in RCS No. 1289A/2015 and RCS No. 516A/2017 is subject matter of challenge in these appeals. RCS No. 1289A/2015 was an application filed under Section 13 of Hindu Marriage Act, 1955 (H.M. Act) by the husband seeking decree of divorce on various grounds whereas other RCS was an application filed under Section 9 of H.M. Act by the wife for restitution of conjugal rights. The Court below by the impugned judgment dated 27th March, 2019 decided both the matters and while rejecting the RCS No. 516A /2017 passed judgment and decree in RCS No. 1289A/2015 and granted a decree of judicial separation in favour of the husband.

2. The parties are at logger heads on the validity of this common judgment dated 27th March, 2019. The grievance of appellant-husband is that as per the findings given by the Court below, a clear case was made out by the husband for grant of a decree of divorce. The Court below has committed an error in not granting the decree of Divorce and instead granted a decree of judicial separation.

3. The grievance of wife is that the finding given by the Court below shows that there was a possibility of reunion between the parties. The husband continued to help the wife in various aspects and in that event, when possibility of reunion was alive, the Court was not justified in rejecting the application for restitution of conjugal rights filed by the wife.

FA No. 1124 /2019.

4. This appeal is preferred by husband feeling aggrieved by the part of impugned judgment whereby instead of passing a decree of divorce, the Court below granted a decree of judicial separation.

5. Shri Ashish Shroti, learned counsel for the appellant submits that he is not aggrieved by the finding in the impugned judgment to the extent it relates to the ground of ‘desertion’. By taking this Court to various paragraphs of the impugned judgment, it is submitted that almost all the grounds relating to ‘cruelty’ were accepted by the Court below in the impugned judgment. In that event, it was not open to the Court below to pass a decree of judicial separation. The Court below in no uncertain terms gave a finding regarding ‘mental cruelty’ on the part of the wife. The reliance is placed on K. Srinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226 and Malathi Ravi, M.D. vs. B.V. Ravi, M.D. (2014) 7 SCC 640. Much emphasis is placed on Para-25 of this judgment of Malathi Ravi (Supra). It is contended that this Court can take into account the subsequent events. Shri Shroti, learned counsel for the appellant has taken pains to submit that admittedly the parties are not living together with effect from August, 2014. This fact itself is sufficient to establish that the marriage has not worked. Subsequent events can also be taken into account by this Court is another limb of submission of Shri Shroti. He placed reliance on the bonafides of the husband whereby he has helped the wife by giving Rs.50,000/- per month, taking care of travel of mother-in-law of the husband and also provided financial assistance to the wife for obtaining permanent residential visa for Australia. In this backdrop, the behaviour of wife is clearly egocentric and for this reason, no useful purpose would be served in affirming the decree of judicial separation. All efforts between the parties for reunion failed which can be seen from the mediation report dated 12.11.2022 which shows that mediation failed despite the reference made by this Court by order dated 28.10.2022.

6. Thus, by taking this Court to various paragraphs of impugned judgment, Shri Ashish Shroti, learned counsel for the husband urged that the impugned judgment may be interfered with to the extent Court below passed decree of judicial separation and it may be substituted by the decree of divorce. Shri Shroti initially argued that neither party prayed for decree of judicial separation and therefore, it was not proper for the Court below to pass such decree in a suit cla