JUDGMENT
Ramakrishnan, J.
1. This petition has come before us for confirmation of a decree nisi for dissolution of marriage passed by the learned District Judge, South Arcot, Cuddalore on O. P. 52 of 1966. The petitioner Mary Stella married the respondent Anantha Sakyanathan under the Christian Marriage Act on 8-4-1958. Both the parties are Indian Christians. They led a peaceful married life till May 1961. The respondent, a teacher, was transferred at that time to Panruti, while the petitioner who also appears to have been a teacher remained at Chidambaram. According to the allegations of the petitioner after the respondent left for Panruti he deserted her without reasonable excuse for more than five years and he also intimated through mediators that he would not return to his wife or take her to live with him on any account. On these allegations, she filed a petition before the learned District Judge, South Arcot, Cuddalore for a decree for dissolution of marriage under Section 10 of the Indian Divorce Act IV of 1869.
(2) In the lower court, the husband remained ex parte. The petitioner examined herself as P. W. 1. In the course of her evidence she repeated the same allegations as in her petition and the gist of it was that the respondent had deserted her ever since May 1961, and had steadfastly refused to take her back to live with him.
(3) On the above evidence the learned District Judge came to the conclusion that this is a fit and proper case for granting a decree nisi for dissolution of the marriage and he has referred the case to the High Court under Section 17 of the Act for confirmation.
(4) We regard to notice that the learned District Judge as well as the petitioner and the learned counsel who appeared for the petitioner in the lower court have failed to notice that on mere proof of desertion, a decree for dissolution of marriage cannot be obtained by the wife against the husband. Section 10 clearly lays down the conditions under which a wife may get a decree for dissolution of marriage with her husband, like change of religion followed by marriage with another woman, incestuous adultery, bigamy with adultery, marriage with another woman with adultery, and other grounds. So far as desertion without reasonable excuse for two years or upwards is concerned, that section is definite that it is only adultery coupled with desertion that would entitle the wife to obtain a dissolution of marriage. In this case the wife has failed to make out the ground of adultery against the husband, even though throughout she has successfully mentioned a case of desertion without reasonable excuse for two years or upwards.
(5) It is unfortunate that the learned district Judge had not borne this crucial distinction in mind and has decided to pass a decree nisi for divorce when he ought to have really passed a decree for the judicial separation, if on the finding arrived by him, there has been proof of desertion. Learned counsel appearing for the petition has fairly stated to us that he cannot support the present order on the facts of the case. It is clearly an erroneous order. We can only express our surprise that such a case should be sent before us for the confirmation of the decree nisi and also express our regret at the waste of judicial time what it has entailed as well as trouble to the parties.
(6) Therefore, the reference in the form in which it has been made must be clearly rejected.
(7) Before parting with the case, we may refer to a decision to which our attention was drawn namely Siluvaimani Ammal v. Thangiah, AIR 1956 Mad 421 (FB) where a Bench of this court after finding that the allegation about adultery has not been made out came to the conclusion that on the circumstances of that case a decree could be passed instead by this court for judicial separation even though adequate grounds had not been made out for confirmation of the decree nisi for dissolution of marriage. But the learned counsel appearing for the petitioner before us has not pleaded that he has received instructions from his client to urge before this court that in lieu of a decree for dissolution of marriage, a decree for judicial separation might be substituted. If a decree for judicial separation is to be substituted other consequential reliefs like alimony payable by the husband to the wife for her maintenance will come in for consideration and this may require adducing of further evidence directed to meet that situation. In view of this we hold that the present reference is not maintainable and we set aside the decree of the District Judge granting dissolution of the marriage and we set aside the decree of the District Judge granting dissolution of the marriage subject to confirmation by this court. We remit the case to the District Judge for fresh disposal. It would be open to the petitioner to apply to the District Judge for grant of a decree for judicial separation and consequential reliefs, if any, if so advised. The parties will also be entitled to adduce such further evidence as they might consider necessary.
(8) Order accordingly.