S. MURTAZA FAZL ALI J.:

This is an appeal by Sant Singh against a decree for divorce granted against him by the Sub-Judge. Mst. Makhan Kaur respondent had filed a petition for dissolution of marriage and a decree for divorce under S, 13 of the Jammu and Kashmir Hindu Marriage Act 1955.

(2) The applicant in the Court below had alleged that she was maltreated by the non-applicant and was driven out of the house and thereafter the non-applicant married a second wife with whom he was living.

(3) The application was resisted by the non-applicant on the ground that the applicant was not maltreated by him and that as he had no issue by the applicant it was at her instance and with her consent that the non-applicant had taken a second wife.

(4) The Court below on a consideration of the evidence led by both the parties has come to the conclusion that the non-applicant had married a second wife and that he had maltreated the applicant. The learned Judge has also found that the consent, if any, was obtained by the non-applicant under coercion. The learned Judge was also of the opinion that even if the applicant had consented to the second marriage which took place prior to the commencement of the Act, such a consent was given in ignorance of her rights under the Act and was, therefore, not binding on her.

(5) Mr. R. N. Bhalgotra, learned counsel for the appellant has contended that there is abundant sevidence in this case to show that the non-applicant had taken a second wife with the consent of the applicant and this being so, she was not entitled to a decree for divorce, in view of the provisions of S. 23 of the Act. It was not necessary for us to go into this question because there is a clear finding of the Court below that the consent given by the applicant was not a free consent. But as the contention has been raised I think it necessary to deal with it.

(6) Section 23(l)(a) runs as follows:

"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 own wrong or disability for the purpose of such relief then, and in such a case, but not otherwise, the Court shall decree such relief accordingly".

The contention is that since the applicant by giving consent to the marriage bad aided her husband in marrying again she could not be allowed to take advantage of her own wrong and, therefore, the Court should have taken this factor into consideration in granting a decree for divorce. The section itself does not use the word "consent but the words used are "taking advantage of his or her own wrong". In order to apply the section it must be shown by the non-applicant that the wife had committed some wrong.

It is admitted on all hands that the second marriage had taken place prior to the commencement of this Act. It is also clear that before the commencement of this Act a second marriage was permissible. It was only after the passing of this Act that second marriage was prohibited and the second marriage was made an offence punishable under the provisions of Ss. 494 and 495 of the I. P. C. In the circumstances even if the non-applicant had consented to the second marriage by the non-applicant it could not be said that she had committed any wrong. Moreover, she could not be conscious of her rights under the Act and the disability created by S. 23 because the Act was not in farce at that time. We have, therefore, to consider the circumstances as also the time when the consent was given. Having regard to these circumstances it cannot be said that S. 23(l)(a) can be called into aid in order to refuse a decree for divorce. Consent or connivance must be express and must amount to culpable acquiescence so as to indicate an act of mind which implies knowledge and acquiescence both. The doctrine embodied in section 23, clause (1} is based on the equitable maxim "volenti nonfit injuria". Mere ne

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