AIR 2008 BOMBA 129 ::2008 (3) AIR Bom R 736 ::2008 (5) AKAR (NOC) 717 (BOM) ::2008 A I H C 2708

Bombay High Court

Hon'ble Judge(s): C. L. Pangarkar , J

Hindu Marriage Act (25 of 1955) , S.13A— Judicial separation - S.13A cannot be interpreted to mean that decree for judicial separation ought to be granted when Court cannot or does not grant decree for divorce - S.13A envisages that even where ground for divorce is made out Court may refuse decree for divorce and instead grant decree for judicial separation. Section 13A cannot be interpreted to mean that the Court can or ought to grant a decree for judicial separation where it cannot or does not grant decree for divorce. If the section is interpreted in the way as suggested, every petition may either end in a decree for divorce or judicial separation. There would be no occasion to dismiss the petition for divorce at all. The Legislature certainly did not intend to grant decree for judicial separation even where no ground for divorce was made out. Therefore, the section has to be interpreted differently. What section envisages is that even where ground for divorce is made out, the Court may refuse decree for divorce and instead grant a decree for judicial separation. Therefore, essentially the appellant must first make out a ground for divorce and then the Court may exercise its discretion to grant decree for judicial separation or a decree for divorce. When no ground is at all made out, there could be no occasion to use the discretion. In the instant case, t....