A. M. BHATTACHARJEE, J.

( 1 ) A petition for divorce under the Hindu Marriage Act was filed by the respondent-husband on the ground of cruelty and desertion by the wife-appellant and also on the ground of non-restitution of conjugal rights for more than one year after the passing of a decree to that effect between the parties. The trial court has negatived the first two grounds but has decreed divorce on the third ground.

( 2 ) EVEN though the grounds of cruelty and desertion alleged by the respondent-husband have been decided against him, the petition for divorce filed by him having been decreed in his favour, the husband, even as a respondent, could, as provided in O. 41, R. 22 of the Code of Civil Procedure, have urged, and that without filing any cross-objection, that the petition for divorce ought to have been decreed on those two grounds also. But the learned counsel appearing for the respondent-husband not having done that, the only question that would require our consideration in this case is whether the trial Judge was right in decreeing divorce on the ground of non-restitution of conjugal rights between the parties for more than one year after a decree for such restitution was passed in favour of the wife-appellant against the husband-respondent.

( 3 ) THE legislative laws on the point are not in doubt; but, as is not unusual, the case-laws clustering round them are not that clear. The relevant legislative provisions of the Hindu Marriage Act may be reproduced hereinbelow :-"13.--------- (1a) Either party to a marriage, whether solemnized before or after the commencement of this act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground - (1) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of true year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 23.----------- (1) In any proceeding under this act, whether defended or not, if the court is satisfied that - (a) any of the grounds for granting relief exists and the petitioner. . . . . is not in any way taking advantage of his or her wrong or disability for the purpose of such relief, and. . . . . . (e) there is no other legal ground why relief should not be granted,

then, and in such case, but not otherwise, the court shall decree such relief accordingly,"

( 4 ) THEREFORE all that is necessary to justify a decree for divorce under these provisions are - (A) a decree for restitution of conjugal rights or for judicial separation between the petitioner and the respondent, whosoever might be the decree-holder; (b) non-resumption of conjugal relation between the parties for a period of one year or upwards; (c) the petitioner not in any way taking advantage of his or her wrong or disability; and (d) non-existence of any other legal ground warranting refusal of the relief prayed. 4a. The first question that has arisen in this case in that if one spouse has obtained a decree for restitution of conjugal rights against the other spouse, can the latter, against whom a decree is passed, without taking any steps to comply with the decree and to restore conjugal rights to the former, still invoke the provisions of S. 13 (1a) (ii) on the ground of such non-restitution for one year or more and be entitled to a decree for divorce under those provisions or would he or she be denied such relief on the ground that he or she has committed "wrong" within the meaning of S. 23 (1) (a) by not taking any steps towards the restitution of conjugal rights and, therefore, cannot be allowed to take advantage of such wrong?

( 5 ) S. 13 (1a) has been inserted by the Amendment Act of 1964 in repla

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