No party can take advantage of its own wrong, as per section 23(1)(a) of the Hindu Marriage Act.

Adarsh Kumar Goel, J. - This appeal has been preferred by the appellant-wife against the judgment and decree dated 7.5.1997 passed by Additional District Judge, Hoshiarpur accepting the divorce petition filed by the respondent- husband on the ground of desertion.

2. Marrige between the parties took place on 1.1.1983. No child was born out of the wedlock. The husband filed a divorce petition on 13.11.1992 alleging, inter alia, that the attitude of the wife was non-cooperative and indifferent and she forced him to go and live at the place of her parents and he was insulted and humiliated there. She refused to live at the place of the husband and after leaving the matrimonial home in 1986, she refused to join the husband. The wife filed a petition for restitution of conjugal rights which was granted on 7.8.1991 but the parties did not resume cohabitation. The wife contested the petition and stated that the mother and other relations of the husband were living in England and it was for this reason that the husband lived with the wife at her parents place and after coming to Jalandhar, the husband did not respond to the wife and deserted her. She had to file a petition for restitution or conjugal rights which the husband did not contest.

3. Trial court after appreciating the evidence on record held that the husband was not able to prove desertion but had proved that no cohabitation was resumed for more than a year after the passing of the decree for restitution of conjugal rights.

4. The matter was referred to the Lok Adalat under section 20 of the Legal Services Act. But since none of the parties came present despite repeated adjournments, the Lok Adalat observed that there was no possibility of compromise between the parties. The matter was, therefore, sent back to this Court for decision on merits.

5. I have perused the record and considered the matter.

I agree with the finding of the trial court that the husband had not proved that the wife had deserted him. The wife had to apply for restitution of conjugal rights and a decree for restitution was granted in her favour and against the husband. No doubt, either party can seek divorce if cohabitation is not resumed for one year after the passing of the decree for restitution of conjugal rights, but in view of the provisions of section 23(1)(a) of the Hindu Marriage Act, no party can be allowed to take advantage of its own wrong, in view of the decision of the Supreme Court in T. Srinivasan v. T. Varalakshmi (Mrs.), Judgement Today 1998(4) S.C. 312. The husband cannot be allowed to take advantage of his own wrong by deserting the wife and then seek divorce even though it has been found that the husband himself was guilty of desertion.

6. In view of the above, I allow this appeal, set aside the judgment and decree of the trial court and dismiss the petition for divorce filed by the respondent-husband, there will be no order as to costs.

Appeal allowed.