Home » Landmarks » M. Narasimha Reddy and Ors. vs M. Boosamma

Decided on February 27, 1975
M.BOOSAMMA …Respondents
Equivalent citations: AIR 1976 AP 77
Author: S Rao
Bench: S Rao, Raghuvir

Sambasiva Rao, Ag. C.J.

1. Though the judgment of Venkatrama Sastry J., which is sought to be appealed against, is an affirming one. Sri P. Rama Rao learned counsel for the appellants-defendants raises many points in support of the appeal.

2. Firstly, he argues that the plaintiff-respondent who filed the suit for partition as the heir of her husband, had lost the status of wife, and so, she could not claim a share. That is on the ground that on 28th day of July, 1962, a decree for judicial separation was passed at the instance of the husband against the respondent. She was provided maintenance at the rate of Rs.200 per month. In execution of this decree for maintenance, she even applied for the arrest of the husband. Without anything more happening, he died in the year 1967 and she filed the suit for partition in 1968. Sri Rama Rao maintains that all the requirements of sub-section (1-A) of Section 13 of the Hindu Marriage Act (1955) have existed in this case, since there was a decree for judicial separation and there is no evidence of resumption of cohabitation between the spouse for a period of two years or upwards after passing of the decree. So, it is contended that it must be deemed that a dissolution of marriage has occurred under Section 13. It is not possible to accept this contention because dissolution or divorce can be granted only under a decree of the court . Sub-section (1-A) provides only a ground for applying for the dissolution of marriage. If the circumstances enumerated in that sub-section existed, then either party to be marriage can apply for dissolution. There was no such application in this case, much less a decree. Therefore, it cannot be said that there was a dissolution of marriage, thereby the plaintiff-respondent losing the status as wife.

3. It is then submitted that even judicial separation has the effect of depriving the plaintiff-respondent of the status of wife. Once again, in our opinion, it is untenable agreement. If such were the intention of the legislature, there could not have been separate provisions for judicial separation and divorce. In fact, if sub-section (1-A) of Section 13 is read, it is quite manifest that the Act postulates resumption of marital relations between the spouse even after a decree for judicial separation has been passed. If a resumption has taken place, then the judicial separation comes to an end. If it does not, then it provides a ground for application by either party to a marriage for divorce. This clearly leads to the conclusion that judicial separation does not put an end to the marital status of the party, with the result, the plaintiff-respondent continues to enjoy the status of the wife.

4. The third contention is that the husband had left a will bequeathing all his properties to the defendants-appellants. On a thorough examination of the evidence, our learned brother agreed with the trial court in holding that the will was not proved. We have no reason to disagree with that conclusion.

5. The last submission is about the movables It complains that the learned Judge has not considered the question of movables. Obviously, it was not pressed before the learned Judge for the reason that a Commissioner was appointed to take an inventory of all the movables. He prepared an inventory, Ex. A-13 of the movables and only a share of such movables as mentioned in Ex. A-13 was given to the plaintiff-respondent by the trial court. In regard to the jewels, the Commissioner was prevented from making an inventor of the articles in the iron safe. So, the trial court drew an adverse inference that the jewels mentioned in the ‘C’ Schedule to the plaint were also existing. In view of the circumstances stated above, we think the defendants-appellants did not press their case in regard to movables.

6. Thus, we find no substance in any of the contentions raised by Mr. Rama Rao. The Letters Patent Appeal is dismissed.

7. Appeal dismissed.

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