Petition by husband for divorce not allowed/granted.

JUDGEMENT :- This appeal is preferred against C.M.A. No. 69 of 1975 on the file of the District Judge, Tirunelveli, who disagreed with the order of dismissal made by the Subordinate Judge, Tirunelveli in O.P. 62 of 1972, which was a petition filed by the respondent herein under S.13(1-A) of the Hindu Marriage Act 25 of 1955. The appellant herein is the wife of the respondent.

2. It transpires that they were married on 17-7-1956 and they lived together till 30-10-1961. It is claimed by the appellant herein, that, because of cruelty an several other factors, she was driven out of the house by the respondent herein. She also refers to the respondent living in adultery with another woman O.P. 5 of 1962 was filed by the respondent for restitution of conjugal rights and it was ordered on 5-11-1962. Appellant filed O.P. 117 of 1963 for restitution of conjugal rights, but that petition was later on withdrawn. Appellant then filed O.P. 85 of 1967 in the Sub-Court, Tuticorin under Ss.10, 11, 24 and 27 of Act 25 of 1955 (hereinafter referred to as the Act) for declaring the marriage as null and void or in the alternative for judicial separation. In that petition, she impleaded one Tirunamakani as the second respondent, who according to the appellant herein, had gone through an illegal marriage ceremony with the respondent herein and therefore, in view of the adulterous nature of life led by the respondent herein, she was entitled to the reliefs prayed for therein.

3. Several points were framed for consideration therein and the court came the conclusion that the appellant had established that the respondent herein was living with another woman and a child had been born out of such adulterous and illegal relationship. That petition was allowed and a permanent alimony and maintenance at the rate of Rs. 25 per month was ordered and the respondent herein was to pay maintenance from the date of petition.

4. After the expiry of the statutory period of two years, respondent filed O.P. 62 of 1972 in the Sub-Court, Tirunelveli, seeking relief under Sec. 13(1-A) of the Hindu Marriage Act. Respondent herein had referred to the marriage with the appellant on 17-7-1956 and that they had no issues, and only till 1961, they were living together. After referring to the earlier proceedings, he had pleaded that subsequent to the order in O.P. No. 85 of 1967, ordering judicial separation, there being no cohabitation between them, and the period of two years having elapsed, he is entitled to a decree for divorce.

5. The appellant herein opposed this petition on ground that the respondent cannot take advantage of his own 'wrong'. He had, with a wicked intention, married another woman and lives with her and the restitution of conjugal rights asked for by him in O.P. 5 of 1962 was a pretence and a farce. It is only the respondent who made it impossible for her to lead a marital life, and he being in the wrong, he cannot allege his own wrong and wickedness in living with another woman, as the basis for securing relief in this petition. Furthermore, he had not paid any maintenance amounts so far. She had also raised other objections and referred to the difficult circumstances in which she had to live, because of the adulterous life led by the respondent.

6. The Sub-Court came to the conclusion that the respondent cannot take advantage of his own mistake for getting a decree of divorce and in spite of the existence of a lawful marriage between the appellant and the respondent, he had living in adultery with another woman, and this has prevented the appellant from rejoining her husband, and therefore, dismissed the petition.

7. The appellate Court dealing with this only point held, that no new ground has been alleged by the appellant to resist the petition for divorce, which has to be ordered as a matter of course, as soon as the period is over, and that there is no scope for the applicability of Sec. 23(1)(a) of the Act, and whatever had been claimed as the bas