JUDGMENT

Marten, J. - This judgment should be read in continuation of the Full Bench judgment dated 9-11-1945 in which all the facts of this case are set out in full, besides a comprehensive discussion of the law points involved. As will be seen from that judgment, the main points which were referred for evidence and which have now come for consideration were:

(1) Whether or not a marriage performed in accordance with the Arya Samaj rites, is legally recognised as a monogamous marriage. (2) Whether the parties in this case intended that the marriage should be monogamous and, if so, whether it can be dissolved in accordance with the provisions of the Indian Divorce Act under which the present petition was lodged.

2. The learned District Judge has duly taken the evidence and the case has again come before the Pull Bench to determine these points in accordance with law and on the evidence taken.

3. However, at the instance of the learned Advocate-General who was called upon to assist us in deciding the points involved, the petitioner has made a written statement which in my view, completely alters the case and considerably shortens our task. He has said "I had a wife at the time I married Mrs. Peggy Join. She is alive and residing with me as my wife. I have not divorced her." From this statement it becomes immediately apparent that the petitioner at the time of his second marriage, himself had no intention of entering into a monogamous marriage, though he may have deceived the unfortunate respondent into thinking that this was so. Further, if it be true that the law does recognise a marriage by the Arya Samajist rites as a monogamous marriage, then the petitioner could never in reality have been married by those rites and the marriage ceremony performed at the time was a mere farce. He has, in fact, committed bigamy.

4. What is before us at this stage is only the-question whether or not we should confirm a, decree under the Act, dissolving a marriage on grounds of adultery. Such a decree could only have been passed on the assumption that the marriage was legal and therefore, dissoluble. It follows that this Court cannot confirm a decree of dissolution which was passed on the erroneous conception that there was ever a legal marriage to dissolve. In the circumstances, therefore, we can only refuse to confirm it.

5. This is the short answer to the case. But, Mr. Sethi who appears for the petitioner wishes now to argue that we should hold that the second marriage is, in fact, valid as a polygamous marriage and that in these circumstances, it can be dissolved under the provisions of the Divorce Act. To entertain such an argument at this stage, would involve permitting the petitioner to reverse the whole of his case which hitherto, has been based on the assumption that he as an Arya Samajist, could only enter into a monogamous marriage. In my view, this cannot be allowed. But, even if for argument's sake, such a plea could now be entertained, learned Counsel is still faced with the legal difficulty adequately discussed in the previous Pull Bench judgment, that the marriage being polygamous, is not the sort of marriage which the Divorce Act was meant to cover; therefore, no relief can be given under this Act. Mr. Sethi wishes to utilize the proviso to Section 7 of the Act in support of this contention and he argues that in spite of the fact that this proviso prima facie, is self-restricted to cases where the parties to a marriage both profess the Christian religion at the time the cause of action arises, Section 2 as subsequently amended, extends its operation to cases in which only one such party was professing the Christian religion at the time of the cause of action, by virtue of the provision added to para. 1 of Section 2 to the effect that nothing thereinafter contained shall authorize any Court to grant any relief under this Act except where the petitioner or the respondent professes the Christian religion. This argument has already bee