IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 289 of 2008 Reserved on: 10.08.2011 Decided on: 24.08.2011 Prem John …Appellant. Versus Nursey John …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellant: Mr. Vijay Pandit, Advocate. For the respondents: Mr. Suneet Goel, Advocate. Deepak Gupta, J. This appeal by the husband is directed against the judgment dated 22nd May, 2008, delivered by the Additional District Judge, Shimla, whereby he rejected the petition for grant of judicial separation filed by the husband under the Indian Divorce Act, 1869. 2. The undisputed facts are that the parties are Christians and were married at Chamba on 18.05.1983. Two daughters were born out of this wedlock. In the year 2002, i.e. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 19 years after the marriage, the husband filed a petition for grant of judicial separation on the grounds of cruelty and desertion. The wife contested the petition, which has been dismissed after protracted trial. Hence, the present appeal. 3. I have heard Mr. Vijay Pandit, learned counsel appearing for the appellant and Mr. Suneet Goel, learned counsel appearing for the respondent. I have also gone through the entire record. 4. The acts of cruelty and desertion are interlinked together and, therefore, both the issues have been discussed together. 5. According to the husband, soon after the marriage, the wife wanted that the husband should reside with her parents at Chamba, which he was not ready to do. Despite this, the wife's father got the husband transferred to Chamba, where he was assaulted and beaten up by the members of her family. The husband got himself transferred back to Shimla in the year 1989 and the wife joined his company in March 1990, but according to the husband, they never lived together, thereafter. The wife refused to perform her matrimonial obligations and though both of them lived under the same roof, the wife kept her bed and board separate. Other allegations have also been made, but there is no evidence to support them. 6. At the outset, it may be stated that the allegations related to the occurrence at Chamba cannot even be looked into -: 3 :- because it is more than apparent that the acts of cruelty, if any, were condoned by the husband because they lived together at Shimla, thereafter. The main allegation of the appellant- husband is that the wife, by keeping her bed and board separate and by threatening to kill the husband, has treated him with cruelty and his also deserted him. The case of the husband is that right from the year 1990, when he came back to Shimla, the wife did not cohabit with him and, therefore, is guilty of cruelty and desertion. This allegation is patently false. The evidence on record shows that a female child was born to the wife in the year 1991, which means that the conception took place sometime after March, 1990. Therefore, at that stage, there were sexual relations between the husband and wife. 7. The wife also stated in her examination in chief filed by way of affidavit that she again became pregnant in the year 1998, but the husband got her pregnancy terminated. She has not been subjected to any cross-examination on this aspect. In fact, when the husband stepped into the witness box and was confronted with these facts, he feigned ignorance and stated that he did not remember whether any child was born after the birth of the two daughters. It is unimaginable that a father would not know or remember that his wife had delivered any child or not. He later admitted that a child was born and submitted that he died 27-28 days later. There is no evidence to support other allegations made by the husband. -: 4 :- 8. Mr. Vijay Pandit, learned counsel for the appellant, has strenuously argued that the marriage between the parties is long dead and they should not be forced to remain as husband and wife. It may be true and, in fact, appears to be correct that the relations between the husband and wife are strained and the marriage between them has irretrievably broken down. However, this is not a ground for grant of judicial separation under the provisions of the Indian Divorce Act. This Court can only grant judicial separation on the grounds available under the Act, which are pleaded and proved. In the present case, none of the available grounds has been proved. 9. Therefore, I find no merit in the appeal, which is accordingly dismissed. (Deepak Gupta) Judge August 24, 2011 (rajni)