A party who has obtained a decree for judicial separation on the ground of adultery is not taking advantage of his or her own wrong by filing for divorce under Section 13 (1-A) (i) of the Hindu Marriage Act, 1955, as the matrimonial wrong of adultery has exhausted itself when the decree for judicial separation was granted.

N. M. Kasliwal, C. J.—The parties were married according to Hindu rites on 30-11-1975. After a short span of about three years, the relations between the parties became strained and the wife, Smt Banti Devi had to leave the house of her husband, Moti Ram. The wife then filed a petition under section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for restitution of conjugal rights. The husband did not contest the said petition and a decree for restitution of conjugal rights was given ex-parte on 10-5-1983. Even after the said decree, there was no restitution of conjugal rights, as such the wife filed a petition under section 10 of the Act for judicial separation on 6-8-1984. The wife in this petition also levelled an allegation that the husband had married another woman. This petition was also not contested by the husband and was allowed ex-parte by judgment dated 12-10-1984. After the said decree for judicial separation, the husband filed the present petition for divorce on 19-10-1987 on the ground that there was no resumption of cohabitation between the parties after the passing of the decree for judicial separation and as such the petitioner was entitled to a decree of divorce.

2. The above facts are almost admitted between the parties.

3. The wife contested the present petition for divorce on a legal ground to the effect that the petitioner husband cannot take benefit of his own wrong and get a decree for divorce It has been alleged by the wife that the husband had deserted her and now married another woman and as such he was not entitled to a decree for divorce as contemplated under section 23 (1) (a) of the Act.

4. Learned Addl. District Judge, Mandi, Kullu and Lahaul Spiti districts at Mandi, considered a number of authorities cited at the Bar and held that the petitioner husband was entitled to a decree for divorce Learned Addl. District Judge thus passed a decree for divorce and dissolved the marriage between the parties by his order dated 6-4-1988. The wife aggrieved against the above decree has filed the present appeal under section 28 of the Act:

5. In order to appreciate the controversy raised in the present appeal, it would be necessary to reproduce section 13 (1-A) (i) and section 23 (1) (a) of the Act: "13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (1-A) 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 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 "23. Decree in proceedings.—(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 (except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and........."

6. Mr. Chhabil Dass, learned Counsel appearing for the appellant-wife contended that the husband was living in adultery by keeping another woman during the subsistence of the marriage between the parties and such act of adultery being a continuous wrong, the husband was not entitled to any decree of divorce as contemplated under section 23 (1) (a) of the Act. It was contended that a decree for judicial separation had been granted in favour of the appellant on the ground of desertion and marrying another woman during the subsistence of the marriage between the parties. It was submitted that the