( 1 ) THE interesting point raised in this appeal pertains to whether an apostate of Hinduism can file a petition under the Hindu Marriage Act, 1955 seeking dissolution of a marriage solemnized under that Act, prior to his change of faith.

( 2 ) ON 17th June, 1973, Sunila, the respondent, was married to Vilayat Raj, the petitioner. The parties were both Hindus at the time. The marriage took place in Delhi an I was solemnized in accordance with Hindu rites and ceremonies. On 15th September, 1980, a child was born of this marriage. Subsequently, the parties spearated.

( 3 ) THEREAFTER, on 1st October, 1981, the petitioner filed a petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (to be referred to in short as "the Act" ). He sought dissolution of the above mentioned Hindu marriage on the ground of cruelty.

( 4 ) IN the said petition, the petitioner indicated his name as Vilayat Raj alias Vilayat Khan son of Krishan Lal. In the paragraph dealing with status, he set out his status as "hindu bachelor" before marriage and "mohammadan married" at the time of filing of the petition.

( 5 ) HIS case against the respondent is shown as limited to the allegations of cruelty. A number of averments, in this connection, are pleaded, with which we are, presently, not concerned. Relief is sought, only, on the ground of cruelty; the other necessary averments with regard to there being no collusion or condonation of the matrimonial offence are also pleaded. It is also asserted that there was no delay.

( 6 ) AFTER service was effected on Sunila, she filed an application under Sections 24 and 26 of the Act. The trial court ordered payment of litigation expenses and maintenance pendente lite. Sunila received the litigation expenses. The maintenance was duly paid till the disposal of the petition under Section 13 of the Act.

( 7 ) ON 16th March, 1982, the District Judge directed that the written statement be filed by 8th April, 1982. However, instead of filing the written statement on 8th April. 1982, Sunila moved an application, on that date, under Section 2 of the Act. In the said application she prayed that the petition under Section 13 of the Act be dismissed as not being maintainable. According to her, this was apparent from the fact that the petitioner was admittedly a Mohammadan on the date that the petition was filed, and as such, since, he had ceased to be a Hindu he had lost his right to move a petition under the Act.

( 8 ) ON 26th April, 1982, the petitioner filed a reply to the said application and averred therein, that as the marriage between the parties had been solemnized according to Hindu rites and customs and the parties were Hindu at the time of marriage, the court had jurisdiction to try the petition and the same was maintainable, as the change of religion had taken place only after the said marriage.

( 9 ) ON 14th May, 1982 the Additional District Judge after hearing the matter, opined, that patently the provisions of the Act did not apply and the petition was not maintainable as the petitioner was not a Hindu at the time of presentation of his petition. In the circumstances, he dismissed the petition as not maintainable.

( 10 ) HOWEVER, the judge observed that if the petitioning spouse were a Hindu and the respondent had changed his religion, then the Act would apply in view of the provisions of Section 13 (1) (ii) which specifically grants a spouse a right to seek a divorce on this ground. He also observed that if the Act were allowed to apply "in the present case it would amount to granting an advantage to the petitioner emanating from his own wrong which cannot be made permissible".

( 11 ) THIS order of the Additional District Judge is being challenged before me. Mr. C. B. Thanai, learned counsel, appearing on behalf of the appellant has submitted that the order is erroneous, in that the court has failed to appreciate that the only ground on which the petitioner was seeking relief was that he h