Report No. 59
2.19. Section 13(2)-living apart-order of maintenance.-
There is a proposal to add the following clause in section 13(2) of the Hindu Marriage Act, which deals with divorce at the instance of the wife:-
"(1) that an order has been passed against the husband by a Magistrate awarding separate maintenance to the petitioner, and the parties have not had marital intercourse for three years or more since such order."
2.20. It may be said that, in one sense, this proposal treats the order passed for awarding separate maintenance to the wife under the Cr. P.C.1 on the same basis as an order or a decree for judicial separation under section 10 of the Act; and, as such, it gives the wife a right to claim dissolution of the marriage by a decree of divorce on the ground that subsequent to the passing of the order under the Code of Criminal Procedure, the wife and the husband have not had marital intercourse for the stipulated period. It will be noticed that a claim for the dissolution of the marriage by a decree of divorce passed on this new proposed ground is similar to the claim which can be made either by the husband or the wife under clauses (i) and (ii) of the section 13(1A).2
1. Section 488 of the Cr. P.C., 1898; section 125 of the Cr. P.C., 1974.
2. Para. 2.18, supra.
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