Mohammed, J.
1. This appeal Under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') is against the order of the Court below in H.M.O.P. No. 82 of 1987 dated 14-8-1989. The proceedings before the Court below arose on a petition under Section 13(1) of the Act. The petitioner-husband in the above petition is the appellant before us. The respondent herein is the wife, the respondent before the Court below.
2. The case of the appellant was that after the solemnization of marriage the respondent had treated the appellant with cruelty and had illicit voluntary sexual intercourse with another person. The respondent denied these allegations in the counter statement. The Court below examined the appellant as P.W. 1 and two other witnesses were also examined on his side. The respondent was examined as RW-1. Ultimately after the enquiry the above petition was dismissed on the ground that the appellant could not establish the allegations set out in the petition. It is against the said order of the court below the present appeal has been filed.
3. We have heard counsel on both sides and evaluated the evidence available in the case. The adultery and cruelty are not grounds which can easily be inferred from certain averments. For establishing them there shall be cogent materials constituting legal proof. The appreciation of evidence by the Court below in so far as the grounds for divorce cannot be said to be perverseor misdirected. On an anxious consideration, this Court finds it arduous to disagree with the findi ngs of the Court below. The appeal is, therefore, liable to be dismissed.
4. 'At this juncture counsel for the appellant submitted before us, inasmuch as the marriage between the spouses is irretrievably broken a decree may be passed by this Court for judicial separation under Section 13-A of the Act. This plea being just and reasonable in the facts of this case, we have asked the counsel for the respondent to find out whether such a course of action would be acceptable to his client. After receiving instructions the counsel submitted that the respondent is agreeable to such a course and a decree may be passed accordingly.
5. Section 13-A of the Act is as follows: '13-A. Alternate relief in divorce proceedings-
In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.'
What is provided under this provision is an alternate relief in divorce proceedings. It contemplates a proceeding under the Act on a petition for dissolution of marriage by a decree for divorce on the grounds mentioned in any one or more clauses (i) (ia)(ib) (iii) (v) of sub-section (1) of Section 13. While dealing with such a petition wide powers are conferred on Courts to pass decree for judicial separation instead of a decree for divorce on the ground mentioned in the petition. However, before passing such decree the Court having regard to the circumstances of the case shall consider it just so to do. In the present case the petition for divorce was filed under clauses (i) and (ia) of Section 13(1), that is to say, on the grounds of adultery and cruelty. Though these grounds are not established, both sides have admitted that the marriage between the appellant and the respondent has been irretrievably broken. In order to pass a decree for judicial separation Under Section 13A the grounds mentioned in the petition for divorce need not be established in all cases but there shall be circumstances justifying the passing of the decree for judicial separation. What is primarilyrequired is the existence of a petition for dissolution of marriage by a decree for divorce in any one or more grounds referred to above. Even if the grounds in the petition are established, the Court need not pass a decree for divorce but instead pass a decree for judicial separation provided the circumstances justify so to do.
6. In this context the observation of the Supreme Court in Chandrakala Trivedi v. Dr. S. P. Trivedi, 1991 (4) SCC 272, that if a marriage was dead and there was no chance of its being retrieved it was better to bring it to an end. In Romesh Chander v. Smt. Savitri, 1995 (1) JT (SC) 362: (AIR 1995 SC 851) the Supreme Court was considering a question whether a marriage which is otherwise dead emotionally and practically shall be continued for name-sake. While answering the question the Supreme Court said at page 832 of AIR :
'In this case the marriage is dead both emotionally and practically. Continuance of marital alliance for name-sake is prolonging the agony and affliction. It cannot be disputed that the husband has not been dutiful and conscious of his responsibilities either towards his wife or his son. He did not contribute anything towards upbringing of the child. Yet the marriage being dead, the continuance of it would be cruelty, specially when the child born out of the wedlock of the appellant and the respondent as far back as 1968 having now grown and being in service. The appellant has expressed remorse for his conduct and is willing to compensate for his past mistakes by transferring the only house in his name in favour of his wife.' However, the Supreme Court in the fuels and circumstances of that case, in exercise of power under Article 142 of the Constitution of India directed that the marriage between appellant and the respondent should stand dissolved subject to the appellant transferring the house in the name of his wife.
7. The question is whether a decree for judicial separation under Section 13-A can be sought at the appellate stage. Admittedly in this case, no such request was made at the trial stage. A decree for judicial separation under Section 13-A is authorised only on the ground of 'just' cause and not on the grounds raised in the petition for divorce. No doubt such a cause may arise at any stage of the proceeding not necessarily at the trialstage alone. If the appellate court considers such cause exists in the circumstances of the case, it can order judicial separation notwithstanding the fact that no such request was made at the trial stage. In this case, as pointed out earlier, bath sides appear to be uniform in their submission that the marriage between the spouses is irretrievably broken and it is emotionally and practically dead though the grounds of adultery and cruelty have not been convincingly established. What they now plead under Section 13-A is an alternate relief, no doubt, a lesser relief when compared to the relief claimed under Section 13(1) of the Act. It can be said, the factual situation in the case justifies the said plea at this stage. The marriage between the spouses took place somewhere in the year 1975 and they lived together till 1983. Thereafter they separated from their joint residence. The petition for divorce was filed in the year 1987 and the court below dismissed it in August, 1989. This appeal was pending before this Court from 1990. Thus for the last about fourteen years the spouses spent their precious life in the legal battle. This Court can definitely perceive the perpetual mental agony and despair in their family life and thus the marriage between them has emotionally and practically dead. Therefore, we are of the view that this Court can definitely exercise the power for passing a decree for judicial separation under Section 13-A. In this context the following observation of Ramaprasada Rao, J. in a Division Bench decision in Dr. H. T. Vira Reddi v. Kistamma, AIR 1969 Madras 235, is apposite.
'It may be noted that though originally the petition was founded on the ground of adultery and a divorce, was sought, the appellant pressed his claim at the appellate stage, though not at the trial.....stage, for judicial separation. That the petitioner can ask for the lesser relief of judicial separation, though in the first instance divorce was sought, is indisputable, and rightly therefore the learned Counsel for the respondent did not demur to the course adopted by the appellant both before Jagadisan, J. who heard the appeal and before us.'
We are, therefore, strongly convinced that the circumstances of this case justify a decree for judicial separation. Accordingly a decree for judicial separation under Section 13-A of the ActI is ordered in this case.
8. It is also brought to our notice that a similar view has been adopted by the Punjab and Haryana High Court in Angrez Kaur v. Baldev Singh, AIR 1980 P&H; 171 and Gujarat High Court in Ashok Govindram Hurra v. Rupa Ashok Hurra, 1996 (2) GLR 650.
9. However, counsel for the respondent has expressed his anxiety as to the effect of this judgment on the ground of maintenance which is being received from the appellant. In order to wipe out all apprehension in this regard, we make it clear that the award of maintenance existing in favour of the respondent will not in any way be adversely affected by the decree of judicial separation which we have now passed.
10. In view of the facts and circumstances of this case, we direct the appellant to pay a sum of Rs. 2,000/- towards expenses of the respondent in this litigation. The appeal is disposed of as above.