judicial separation was passed against husband now he wants Divorce Decree

[debolina]

decree of judicial separation was passed on ground of Adultery against the Husband now he has applied for decree of divorce kindly advice

[tapsash]

Section 13(1A) of Hindu Marriage Act 1955 provides that "Either party to marriage whether solemnized
before or after the commencement of this Act may present petition for dissolution of marriage by decree
of divorce on the ground that there has been no resumption of cohabitation as between parties to marriage
for period of one year or upward after the passing of decree of judicial separation in proceeding to
which they were parties."

Provision of Section 13( I A) of the Act have been amended vide Marriage Law (Amendment) Act 1976.

Now position of Law is that if once a decree of Judicial separation has been passed and cohabitation
between parties has not been resumed, then either party to marriage can apply under Section 13(1A)(i) of
the Act for decree of divorce. But that does not mean, once the ground u/s 13(IA) (i) or (i) of Act is
proved to exist court will mechanically grant decree of divorce, without seeing Whether party seeking
relief was wrong doer or trying to defeat the provisions of law. Though there is no denial of the fact
that a party against whom decree of Judicial separation or Restitution of conjugal rights has been passed
can lawfully present petition under Section 13(1 A) of the Act. But court will not overlook the
provisions of Section 23 of the Act while granting any relief and will see the facts of each case. If the
ground for relief exist, but party seeking such relief himself is wrong doer and is trying to take
advantage of his or her own wrong then in such situation court may refuse to grant relief.

In the case in hand Decree of Judicial separation was passed on 5.2.1997, against husband 'H' on the
ground of adultery. Fact that Husband was living in adultery with other woman was the reason why wife
asked for Judicial separation and court passed the decree of judicial separation. Therefore, Husband
himself was wrong doer and he himself did not resume cohabitation and then file the petition for
dissolution of marriage by decree of divorce under Section 13( 1 A((i). He can not take advantage of his
own wrong as provided by Section 23 of Act.

In S.K Deshmukh v. Chitera Lekha 1998 Family Law Cases 537 Wife obtained decree for Judicial separation
on the ground that the husband was living in adultery. After passing of said decree, there was no
resumption of cohabitation between parties and the Husband filled petition for divorce under Section 13
(1A) (i) of the Act. It was held since decree of judicial separation was passe don the application of
wife on the ground that Husband is living in adultery with other woman during the life time of first
wife, the wrong was committed by him and he can not take advantage of such wrong and therefore in view of
provisions of Section 23(1) (a) of the act, he is not entitled to decree of divorce under Section 13( I
A) (i) of Act.

In view of the above discussion in the case in hand, decree of divorce can not be granted.