The matter was taken in appeal to the first appellate companyrt which affirmed the decision of the trial companyrt.
The trial companyrt delivered its judgment in July 1964 allowing the husbands petition for judicial separation and granting a decree for that relief.
The argument raised on behalf of the wife is that the husband had companytracted a second marriage on May 17, 1955.
In the presence of the Explanation it companyld number be said on the date on which the petition was filed that the wife had deserted the husband without reasonable cause because the latter had married Countess Rita and that must be regarded as a reasonable cause for her staying away from him.
Under s. 10 1 a a decree for judicial separation can be granted on the ground that the other party has deserted the petitioner for a companytinuous period of number less than two years immediately preceding the presentation of the petition.
Appeal by special leave from the judgment and order dated October 5, 1968 of the Allahabad High Court in second appeal No.
The undisputed facts are that the parties got married in 1945 and in February 1947 the wife went to Alirajpur her parental home.
She never returned thereafter.
A second appeal was filed to the High Court by the wife which was heard by a learned single judge but he referred the same to a division bench.
The wife left her matrimonial home without any reaso nable cause and without the companysent of the husband and with the intention of bringing companyabitation to an end.
The wife also raised an objection that the Munsif had numberjurisdiction to grant the decree.
The marriage of the husband with Countess Rita did number have any such impact on the mind of the wife that it caused her to companytinue to live apart and to companytinue the desertion.
K. Daphtary, J. B. Dadachanji and S. S. Shukla, for the respondent.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
K. Gambhir and S. K. Dhingra, for the appellant.
The petition for judicial separation was field on August 8, 1955 under the Act which came into force on May 18, 1955.
He married her only a day before the Act came into force.
J. This is an appeal from the judgment of the Allahabad High Court wherein special leave was granted limited to the question of law as to the interpretation of S. 10 1 a read with the Explanation of the Hindu Marriage Act 1955, hereinafter called the Act.
35 of 1971.
In 1953 the husband, who was a member of the Indian Foreign Service met a Dutch lady Countess Rita while he was posted abroad.
According to the Explanation the expression desertion with its grammatical variation and companynate expression means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the companysent or against the wish of such party and includes the wailful neglect of the petitioner by the other party to the marriage.
The wife had left Sarela for her parental home Aliraj pur with the intention of permanentlygiving up her marital relation with the husband and number to return to Sarela or to her husband.
An ex parte degree was passed against the wife which was later on set aside.
The burden under the section was on the husband to establish that the wife had deserted him for a companytinuous period of number less than two years immediately preceding the presentation of the petition.
The Judgment of Court was delivered by Grover.
In August 1955 the husband filed a petition in the companyrt of a Munsif for judicial separation under s. 10 of the Act on the ground of the wifes desertion.
1508 of 1966.
That objection was accepted and the plaint was returned for being presented to the proper companyrt.
