( 1 ) THE defendant-appellant (husband) has come up in appeal from the judgment and decree of the learned Additional District Judge, Rajgarh, granting a divorce to the plaintiff-respondent (wife) in her suit under Section 13 of the Hindu Marriage act, 1956. The main reason for the divorce, which the appellant has admitted as a fact is that he has been living with another woman whom he has married as his wife, as the facts show, after the commencement of the Hindu Marriage Act, 1955. The plaintiff-respondent herself had been married to him several years before that date.

( 2 ) IN the judgment, which is somewhat brief possibly on account of the facts being admitted, it is not expressly made out whether the decree was being passed in accordance with the ground in Section 13 (2) (i) or that in Section 13 (1) (i) of the act. The argument here is that the "marriage" of the second "wife" having been solemnized after the commencement of the Act, she is really no wife at all in the eyes of the law and, therefore, the ground in Section 13 (2) (i) has not been made out and the judgment and decree of the trial Court should be set aside. Another ground raised is, that the plaintiff (wife) has not satisfied the Court in the manner required by Section 23 of the Act that she was not taking advantage of her own wrong, that being herself persuading the appellant (husband) to take another wife because she felt that she was incapable of giving birth to male children and he badly wanted such issue.

( 3 ) IT is necessary in the circumstances to examine these two grounds. The first one is based on a clear misunderstanding on the part of the husband-appellant. He is living continuously with a woman whom he calls his wife and with whom he has gone through a ceremony of marriage but after the commencement of the Hindu marriage Act, 1955; certainly, a divorce on this ground does not come under the ambit of Section 13 (2) (i): but it does come under one of the general provisions in section 13 (1) (i)--"is living in adultery"; Since there appears to be some misunderstanding in this regard and as the legislature has left undefined the phrase "living in adultery" in this regard, and I think intentionally so, it is useful to examine the problem at some length.

( 4 ) SECTION 13 has got two parts, the general one in Sub-section (1) which enables either party to a marriage to seek its dissolution by a decree of divorce on one or other of the nine grounds. Most petitions would naturally fall under this subsection at the same time, the legislature has taken account of the state of the hindu society before 1955. where, except possibly in certain parts of the country, it was not legally forbidden for a Hindu man to take a second wife while the first was living. When the Act came into force, the legislature left it to the choice of the wife of a polygamous husband either to remain with the husband or seek divorce on that ground. Accordingly, Subsection (2) (i) has been enacted under which only the wife can come There is another grievance contained in Sub-section (2) (ii) of the Act on which also it is the wife who could apply, but we are not concerned with it here.

( 5 ) THE point to note for our purposes is that very often the wife, who petitions under this sub-section, may not be in a position to satisfy the Court that the other woman is the legally married wife of her husband. She can only say that she is living "as a wife usually does". Whether the marriage itself is valid, she cannot be sure, it may be invalid for want of ceremony or on account of the simple fact that the marriage so called having been solemnigad after the Commencement of the act, is, in the eyes of law, no marriage at all. If, strictly speaking, the other woman is not this wife, then the only ground on which the marriage can be dissolved by a decree of divorce is one of the general provisions viz. . Section 13 (1) (1 ).

( 6 ) "living in adultery" has, in matrimonial cases, a diffe