B. Panigrahi, J.
1. This appeal is directed against an order passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 289 of 1994 under Section 13(1) of the Hindu. Marriage Act, 1955 directing a decree of divorce in favour of the appellant.
2. The incontrovertible facts stated in the order passed by the learned Judge, Family Court is as follows :
The marriage between the two spouses was solemnised on 10.2.1989 as per the Hindu rites and customs and thereafter both parties led their conjugal life for a period of 2 to 3 months. It is the case of the respondent that after few months of marriage the cordial relationship between both the spouses did not continue longer and there was frequent dissensions, discord and unhappiness developed from time to time as a result of which the appellant voluntarily left her place of work and, thereafter, did not return to the matrimonial house. It has been further narrated that the husband-respondent was always put to severe mental tension, shock and torture due to voluntary withdrawal of the appellant from the husband's company. The position further deteriorated on account of a criminal case being filed in G. R. Case No. 1910 of 1995 by the appellant under Section 406 of the Indian Penal Code read with Section 6(2) of the Dowry Prohibition Act. The said case is still pending final adjudication. The respondent-husband had therefore claimed to have suffered from severe mental set-back due to filing of the case by the appellant in the Criminal Court.
3. The appellant on the other hand stated in her written statement before the Family Court that the respondent-husband demanded more gold ornaments, colour T.V. set and other valuables to the tune of Rs. 70,000/- towards further dowry which was impossible for the appellant to comply with the said demand. Immediately after the lawful wed-lock between both spouses a female child was born to them on 26th May, 1990 at S.C.B. Medical College, Cuttack. The respondent did not take even the minimum care to visit the child once. Learned Judge, Family Court after hearing the parties was of the view that there was an irretrievable end of their, married life and in such a situation it would he fit case for granting a decree of divorce. The appellant being aggrieved by the decree of divorce under Section 13(1) of the Hindu Marriage Act, has filed this appeal.
4. Mr. Acharya, the learned counsel appearing for the appellant has strongly contended that the order passed by the learned Judge, Family Court has suffered from several legal as well as factual infirmities. It has been urged with strong intensity of conviction that the learned Judge, Family Court had not discussed even the grounds for granting a decree of divorce, particularly, when the appellant herself is agreeable to join the company of her husband. Therefore the decree of divorce in the aforesaid circumstance is not sustainable in law and it should be set aside. The judgment of the trial Court also appears to have suffered from a factual error inasmuch as the criminal case was filed after filing, of an application for divorce.
5. Mr. Mishra, the learned counsel appearing for the husband-respondent has taken an inexorable plea that in the instant case it is impossible to comprehend that both parties will reside together, even, the appellant is agreeable to join the company of her husband. The dissension, disharmony and discord between the parties has reached at such a stage that the respondent would not be in apposition to accept her. Since the relationship between both the spouses is incompatible and the appellant wife is not wiling to reside with the respondent, therefore, the learned Judge, Family Court had no other option but to grant a decree of divorce.
6. The 'cruelty' as alleged by the husband is to be understood in a liberal way. Since the husband is always under pressure and subjected to ill-treatment, he was also otherwise not in favour of continuing to stay with the appellant. Accordingly the order assailed before this Court cannot be found faulted with.
7. During the pendency of this appeal, this Court has also made a sincere attempt to bring both the parties together. From their submission it appears that although the appellant-wife is agreeable to join with the husband, yet the respondent is not willing to take the appellant-wife to his house. The reason for not joining together, we are not inclined to dilate, but as a matter of fact we gathered that it is incompatible for one party to stay with other. It may be stated here that both the parties failed to adjust with each other. Before filing an application for divorce, we found there was no opportunity given by the respondent to the appellant for joining with him. In this background, we are not in a position to arrive at a conclusion that the respondent suffered from severe mental setback for the reason the appellant failed to join him.
8. Thus it has to be considered whether in this background can the Court pass a decree of judicial separation oh an application for divorce under Section 13(1) of the Hindu Marriage Act ?
9. This Court has plenary power to grant a decree of judicial separation even on an application for a decree of divorce in case it feels that there are no sufficient ground for granting such relief.
Section 13(1) of the Hindu Marriage Act provides as follows:
'Any marriage solemnized, 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 solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petitioner; or
(ii) has caused to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the-respondent.'
10. The decree of divorce had not been sought by the respondent on the ground of Clauses (ii), (vi) and (vii) of Sub-Section (1) of Section 13. Therefore, there is no embargo for the Court to grant a decree of judicial separation on an application for divorce.
11. It may be stated here that although attempts have been taken at different times to bring both parties together, but there has been no positive evidence to establish that the marriage between both the spouses had come to an irretrievable end.
12. From the evidence placed before us by either party it was however not conclusive that the appellant-wife has withdrawn voluntarily from the society of the respondent. But as we have stated above, since the husband is unwilling to take the wife and keep in the matrimonial house, in such a situation no direction can be given against the husband to keep the appellant in her matrimonial house unless they mutually agree to remain under one roof.
13. The Hon'ble Supreme Court in the case of Hirachand Srinivas Managaonkar v. Sunanda reported in AIR 2001 Supreme Court 1285 held in the following manner :
'It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which of importance not only for the individuals or their children but also for the society. 'Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be top hazardous to lay down a general principle of universal application.'
12. Keeping the aforesaid principle in mind and after analysing the facts of the case, since there was no attempt from either side to lead a conjugal life before filing a case for divorce, we are inclined not to approve the decree of divorce granted against the appellant by the learned Judge, Family Court and the same is liable to be set aside.
13. In the aforesaid situation, after hearing both the parties, we are of the view that in the fitness of things a decree of judicial separation as envisaged under Section 10 of the Hindu Marriage Act be passed instead of a decree of divorce. If either party joins the company of other, it is open to him/her to file an application before the learned Judge, Family Court to revoke the order of judicial separation and lead a conjugal life. Undisputedly a female child was born to them. It is obligatory on the part of the respondent-husband to meet her maintenance and educational expenses. Accordingly, we direct the respondent-husband to pay @ Rs. 750/- (Rupees Seven hundred fifty) per month to the appellant on behalf of their minor daughter within 10th of each succeeding month by way of money order/bank draft/cheque.
14. With the above observation the appeal is allowed, the decree of divorce is set aside instead a decree of judicial separation is passed.
P.K. Misra, J.
15. I agree.