P.C. Pathak, J.
1. The defendant wife has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter called the 'Act') against a decree of divorce under Section 13(1-A)(i) of the Act.
2. On 23-11-1979, the respondent filed petition for divorce on the allegations that their marriage was solemnised on 5-2-1976 at Khamgaon, District Buldhana, State of Maharashtra whereafter she came to reside with him at Raipur. She stayed with him hardly for 3-4 days. During the stay, she did not permit him to consummate the marriage. She confessed that she was infatuated to some boy-friend, and led the life of unchastity with him. After she was taken away by her parents, he learnt that she carried on adulterous relations with several boy friends and lastly that she had withdrawn herself from his society for reasons best known to her. He therefore prayed for dissolution of marriage by decree of divorce on grounds under Section 13(1A)(i) & (ii) of the Act. On 14-10-1981, the respondent amended the petition claiming divorce under Section 13(1A)(i) of the Act on the plea that there has been no resumption cohabitation between them for a period of one year after the passing of decree for judicial separation in H.M.P. No. 63/78, on 22-8-1980, by Civil Judge, Senior Division, Khamgaon.
3. The appellant denied all adverse allegations made against her in the petition. She alleged that the respondent sent her back to her parents for no fault of her and all attempts towards reconciliation proved futile. She denied having any relation with any boy friend or that she was leading an adulterous life. In 1978, she went to Raipur to resume matrimonial life, but had to return back. All these allegations were found to be false in the judgment rendered on her petition for judicial separation and therefore those grounds were not available to him. In reply to the ground based on decree for judicial separation she submitted that in second week of April, 1981, when she cams to Raipur for reconciliation, the respondent cohabitated with her. She also pleaded that the decree for judicial separation is void and a nullity since it was passed without any legal evidence.
4. The learned trial Court framed issues on pleadings of the parties and after recording evidence of both parties, held that the respondent failed to prove the grounds; namely the desertion and adultery. The Court decided issue No. 4 relating to ground under Section 13(1A)(i) of the Act in favour of the respondent and passed a decree in his favour. Hence this appeal by the wife.
5. The appeal is filed on the ground that the decree of the judicial separation passed by Khamgaon court is not confirmity with the Section 23 of the Act since the same is based on affidavits and not on any evidence. Reliance was placed on Smt. Hirakali v. Dr. Ram Asrey Awasthi (AIR 1971 All. 201). Another ground urged is that since there was resumption of cohabitation at Raipur in April 1981, the decree for judicial separation lost all the sanctity and the decree for divorce could not be granted on the basis of said decree.
6. Before examining the merits of this appeal I am constrained to observe that the counsel for appellant rendered little or no assistance. The Court posed a question whether the legality of the decree for judicial separation could be challenged in collateral proceeding namely the proceedings for divorce. No answer could be elicited till the end. Learned counsel for the appellant, instead of answering the question, became oblivious to it and expressed his desire to withdraw from the appeal. The Court informed him that orders will be passed during the course of day and proceeded to hear the counsel for the respondent. Counsel for the appellant was again called upon to reply. He reiterated that he had already withdrawn. This Court, passed an order on the same day rejecting his prayer for withdrawal from the appeal. In order to afford him further opportunity, the appeal was relisted after lunch break on 3-7-1990. Counsel for the respondent alone appeared but the counsel for the appellant did not appear. The appeal was again adjourned to 6-7-90 and thereafter 8-7-1990. On 9-7-1990 the office placed I.A. No. 4400/90 filed by the appellant's counsel for orders. Counsel for appellant came to the Court only to inform that he does not want to argue and the hearing of appeal be deferred to enable him to inform client and to engage another counsel. After due consideration the application was rejected. Counsel for respondent was thereafter heard and the appeal was closed for judgment.
7. The question for decision is whether the decree for judicial separation Ex. D. 1 is void since the judgment was rendered only on affidavits and not on any evidence. Reliance is made on Smt. Hira Kali's case (supra), it was urged that Section 23(1) of the act requires the Court to be satisfied as to the existence of grounds on the basis of which relief is sought for. The court failed to discharge this mandatory requirement. Since the satisfaction of the Court was not based on any legal evidence, the decree is void. The argument is devoid of any substance. In Dr. N.G. Dastane v. Mrs. S. Dastane (AIR 1975 SC 154), it was held that the word 'satisfied' in Section 23 must mean 'satisfied on a preponderance of probabilities' and not 'satisfied beyond a reasonable doubt'. Paras 6 and 7 of the judgment Ex. D. 1 show that the husband remained ex parte and, therefore, the wife filed affidavits in proof of her claim for judicial separation. The court held that the evidence through affidavit showed that the husband has deserted her without fault on her part and, therefore, she was entitled to a decree for judicial separation. In other words the court accepted the affidavits as evidence led by her.
8. The contention that affidavit Is no evidence exhibits ignorance of Order 19, Rule 1 of the Code of Civil Procedure, which empowers the court to order any point to be proved by affidavit. No copy of order sheet was filed to show that the Khamjaon court did not pass any order under the said rule. The presumption is that the affidavit must have been filed in pursuance of an order under Rule 1 of Order 19. This is further affirmed by the fact that the said court acted on the affidavit and passed the decree. If any of the parties was aggrieved, it was for him or her to assail the decree in appeal on the ground being urged today. That having not been done, it is not open to the appellant now, to assail the said decree on the ground that it was passed without any evidence. See Khandesh Spinning and Weaving Mills Co. Ltd. Jalgaon v. Rashtriya Girni Kamgar Sangh, Jalgaon, (AIR 1960 SC 571), ) and Shamsunder Rajkumar, a Firm dealing in Oil Cake etc. v. Bharat Oil Mills, Nagpur (AIR 1964 Bombay 38). If the opposite party did not contest the allegations in the affidavit, there will be no need to adduce any evidence. See Babulal Ramcharan and Ors. v. Chhotekhan Lal Khan (1976 MPLJ 843).
9. The decision of Allahabad High Court is distinguishable and is of no relevance in the present case. Section 23(1)(c) provides that the court before granting relief under the Act must be satisfied that there is no collusion between the parties. Therefore, the consent decrees were held to be invalid on the ground that it is an outcome of collusion. The judgment in Allahabad's case (supra) is also one of these cases where the decree for judicial separation was passed by consent of parties and, therefore, the court declined to grant a decree for divorce on the basis of the said decree. In the present case, the decree for judicial separation was not passed on consent of the party and, therefore, the objection cannot be entertained. In Smt. Saroj Rani v. Sudarshan Kumar Chadha (AIR 1984 SC 1562), the wife filed a petition for restitution of conjugal rights, the court passed a decree on consent of both the parties. During the following period of one year, after the decree; since there was no cohabitation, the husband filed a petition for divorce. The wife pleaded that after the decree was passed there was cohabitation for 2 days and thereafter the husband turned her out. Her defence story was disbelieved. However, the trial court did not grant relief on the ground that consent decree was collusive. The High Court set aside the dismissal and instead granted a decree for divorce. Before the Supreme Court the wife assailed the decree on the ground that the consent decree must be taken as collusive and that the husband was guilty of avoiding cohabitation and, therefore, he could not take advantage on his own wrong. Rejecting the submission the Supreme Court held that there was no collusion between the parties. In answer to the petition for restitution filed by the wife, the husband replied that he was willing to take wife back. A decree on that basis was passed. The Supreme Court held that no collusion can be inferred from the willingness of the husband. The Supreme Court also took notice of the legislative intend under Section 13B that divorce by mutual consent is no longer foreign to Indian law of divorce but of course this is a subsequent amendment and was not applicable in that case. In the present case, the husband contested the petition for judicial separation but remained ex parte. No inference of collusion can be drawn from the facts that the ex parte decree was passed in that petition.
10. The next question for decision is whether a decree for divorce could be passed in favour of the husband under Section 13(1A)(i) namely there has been no resumption of cohabitation as between the parties for a period of one year or upwards after passing a decree for judicial separation in a proceeding to Which they were parties. Admittedly this ground was not in existence on 23-11-1979 when the petition for divorce was filed. It is also not in dispute that the petition under Section 10 of the Act filed by the wife on 2-12-1978, was decreed by the Khamgaon Court on 22-8-1980. In other words, the decree for judicial separation was passed during the pendency of divorce petition. The husband amended the petition relying on the aforesaid ground based on decree for judicial separation. This amendment was allowed, on/or about 14-10-1981. The trial Court passed the decree for divorce solely on the finding that there was no cohabitation for a period of one year after the passing of the decree for judicial separation.
11. The question for divorce is whether the husband is entitled to a decree for divorce relying on the decree for judicial separation and expiry of one year during the pendency of divorce proceeding. In my opinion, the language of Section 13(1A)(i) of the Act is very clear. Before a decree for divorce can be granted, there must first be a decree for judicial separation and thereafter a period of one year has elapsed during which the parties have not resumed cohabitation. Before divorce can be sought on the ground for decreed judicial separation, the period of one year must have elapsed before the petition was filed. If the ground comes into existence during the pendency of divorce proceeding, the husband could not take advantage in the present petition. Therefore the amendment sought for by the husband should not have been allowed in this case.
12. Learned counsel for the respondent husband submitted that the ground is not urged in memo of appeal and was not advanced even during the course of the argument. Therefore, appellant is not entitled to relief on that ground. It is true that neither a ground is raised nor it was urged orally by the counsel for the appellant. However, the question is apparent on record and, therefore, the court put this question suo moto. Hearing of the appeal was adjourned from time to time. The respondent got fair opportunity to answer the question.
13. Learned counsel for the respondent submitted that relief can be granted on the basis of the events that have been taken place subsequent to the date of suit. He relied on Parihar (Priti) v. Parihar (Kailash Singh) (AIR 1978 Raj. 140). It is observed in this judgment that while moulding a relief even the appellant could take into account the facts that came into existence even after the decree. With utmost respect to the learned single Judge, I am unable to subscribe to the view taken by him. The view taken by him runs counter to the decision in Gindan and Ors. v. Barelal (AIR 1976 MP 83) in which a division bench of this Court held that under Section 10(b) of the Act as it stood then the word 'Cruelty' has reference to before riling of the petition for judicial separation and not subsequent thereto. On the lace of this decision, I am unable to prefer a single judge of Rajasthan High Court.
14. Learned counsel for the respondent also relied on Pasupuleti Venkateswarlu v. The Motor & General Traders (AIR 1975 SC 1409). This was a case under the Rent Control Act. The court held that the revisional court has power to take cognizance subsequent events. The decision is not applicable to the facts of the present case. Yet another decision relied on is Dharmendra Kumar v. Usha Kumar (AIR 1977 SC 2218). The question involved in that appeal was whether the refusal of the wife to reply to the letters written by the husband after passing of the decree of restitution of conjugal rights constituted 'wrong' and as such she was disentitled to relief on account of the bar contained in Section 23(1)(a) of the Act.
15. In Smt. Saroj Rani's case (supra) the question for consideration was whether the husband was disentitled to a decree for divorce since the parties had no cohabitation for one year after a decree for restitution of conjugal rights was passed. The High Court held that even if the husband has refused to resume cohabitation, he was not disentitled to get the decree. These decisions are distinguishable and are not relevant to decide the issue involved in the present appeal.
16. The respondent pleaded desertion and cruelty as grounds for divorce. Both these grounds were negatived by the trial Court. The evidence on record supports the conclusions reached by the trial Court. They do not call for any interference.
17. The appeal is allowed. The judgment and decree of divorce passed by the trial Court are hereby set aside and instead the suit is dismissed. There shall be no order as to costs.