(Case (disposed of on 20-2-1956) referred by the District Judge, Tirunelveli, for confirmation by the High Court under S. 10 of the Indian Divorce Act, IV of 1869, of the decree nisi dated 12-2-1954 in O.S. No. 1 of 1954 on his file.)

Rajamannar, CJ.

This is a wifes petition for divorce under S. 10 of the Indian Divorce Act. The parties are Indian Christians and were married according to Christian rites on the 18th June 1929, at Siluvaipuram, Tirunelveli District. The grounds on which dissolution of the marriage was sought were: (1) the husbands adultery coupled with such cruelty as without cruelty, would have entitled her to a divorce a menta et toro , and (2) adultery coupled with desertion without reasonable excuse for more than two years since 15th August 1953. The only material evidence tendered by the petitioner was oral. She examined herself and another witness. The allegations in the petition as regards adultery were extremely vague, viz., that the respondent had contracted intimacy with some women. The petitioners evidence on this point was confined to a mere statement that the respondent was keeping a woman. The testimony of the other witness does not carry us further, for be too only says that the respondent was keeping another woman. On this evidence, it is impossible to return a finding of adultery on the part of the respondent. There is no proof of desertion. There is, however, evidence of cruelty. We see no reason to reject the testimony of the petitioner herself and she is corroborated to a certain extent by the other witness. The learned District Judge accepted that evidence and so do we. On a finding of mere cruelty the petitioner will not be entitled to obtain a decree of dissolution of her marriage, as S. 10 requires in addition to cruelty either adultery or desertion. But under S. 22 of the Act the petitioner would be entitled to a decree of judicial separation on the ground of cruelty alone. We therefore set aside the decree nisi for divorce passed by the learned District Judge and, instead, pass a decree of judicial separation between the petitioner and the respondent.