SUPREME COURT OF INDIA

Before:- B.N. Agrawal and H.K. Sema, JJ.

Civil Appeal NO. 5467 Of 2003. D/d. 7.4.2005.

Trupti Das - Appellants

Versus

Rabindranath Mohapatra - Respondents

Hindu Marriage Act, 1955, Sections 10, 13, 24 and 25 - Civil Procedure Code, 1908, Order 6 and 18, Rules 1 and 2 - Judicial separation and payment of maintenance - Family Court granted decree of divorce - There was neither any case filed for judicial separation nor any evidence was led by parties for judicial separation - High Court set aside the order of Family Court and suo motu granted a decree for judicial with direction for payment of maintenance clearly unjustified - Therefore, while upholding order of High Court dismissing claim for divorce, the decree for judicial separation and direction for grant of maintenance to be set aside.

[Para 2]

ORDER

B.N. Agrawal, J. - Heard learned counsel for the appellant.

2. The respondent-husband filed a petition for divorce before the Family Court, Cuttack on the ground of desertion and cruelty. The wife denied both the grounds. Parties led evidence in support of the respective cases. The trial Court granted decree for divorce on both the grounds. Against the said order, matter was taken by the wife to the High Court of Orissa in appeal. By the impugned order, the High Court set aside order passed by the Family Court whereby a decree for divorce was granted holding that the Family Court was not justified in granting the decree for divorce. It appears, even after recording this finding, the High Court in the concluding portion of the judgment, suo moto granted a decree for judicial separation as envisaged under Section 10 of the Hindu Marriage Act, though neither any case was filed for judicial separation nor it has recorded any finding that any evidence was led by the parties for judicial separation.While granting the decree for judicial separation, the Court also directed for payment of maintenance. In our view, when the claim for divorce was disallowed by the High Court, it was not justified in granting a decree for judicial separation and directing payment of maintenance.

3. Accordingly, the appeal is allowed in part and while upholding order of the High Court dismissing the claim for divorce, we set aside the decree for judicial separation as well as direction for grant of maintenance.

4. No costs.

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