T. S. THAKUR, J. ( 1 ) THIS appeal arises out of a Judgment and Decree passed by the Addl. Civil Judge at Hubli whereby M. C. No. 32/1989 filed by the respondent-husband has been allowed and the marriage between the parties dissolved by a decree of divorce under S. 13 (1) (ia) of the Hindu Marriage Act, 1955. ( 2 ) THE parties were married to each other according to Hindu rites in the year 1977. They lived together for a year and a half but have remained separated ever since. M. C. No. 32/1989 was filed by the respondent-husband seeking a decree for restitution of conjugal rights or in the alternative, a decree for divorce under S. 13 on the ground of cruelty and desertion. The respondent's case as set out in the petition was that after having lived with him for a year and a half, the wife went away to her parental house at Karjagi never to return again. Efforts made to bring her back to resume cohabitation with him were alleged to have failed despite intervention of the elders. The petition went on to state that the wife had agreed to return to Hubli where the husband was during the relevant period working as a Clerk in the Hubli-Dharwad Municipal Corporation. She did come to Hubli but stayed in her maternal sister's house without so much as informing the husband about the same. The petition alleged that the wife had deserted the husband without lawful excuse in spite of the petitioner's repeated request asking her to return to her matrimonial home. The petition also referred to Crl. Misc. No. 144/1988 filed by the wife under S. 125 of the Cr. P. C. for grant of maintenance. It was alleged that the averments made in the petition seeking maintenance were false and that the same were appropriately answered by the husband. The Court had, however, awarded in favour of the wife a sum of Rs. 225/- per month towards maintenance. The petition on the above assertions prayed for a decree of restitution of conjugal rights. It also made an alternative prayer for dissolution of the marriage by a decree of divorce if the Court came to the conclusion that restitution of conjugal rights was not possible. 225/- per month towards maintenance. The petition on the above assertions prayed for a decree of restitution of conjugal rights. It also made an alternative prayer for dissolution of the marriage by a decree of divorce if the Court came to the conclusion that restitution of conjugal rights was not possible. ( 3 ) IN the objections filed on behalf of the wife, the allegations made by the husband were denied as being false. The objections also disputed the allegations that the wife had abused or threatened the paternal uncle of the husband or his wife. The objections went on to state that after the marriage, the husband took the wife to Village Adur in Hangal Taluk and kept her in the house of his uncle and aunt. The uncle and the aunt of the husband in turn started beating and abusing the wife without any reason whatsoever. They even threatened to kill her and instigated the husband by making false allegations against her. Even the husband started harassing and resorting to physical violence. The wife it was alleged continued to bear all the harassment and cruelty in the hope that the husband would mend his ways and start caring for her. This did not come true for the wife who was eventually dragged and thrown out of the house. Ever since the wife has been staying in a rented room at Hubli. The elders and other family members of the wife made efforts to persuade the petitioner husband to take her back, but the husband flatly refused to do so, and threatened the wife with injury to her life and limb. The objections prayed for dismissal of the petition on the ground that it was the husband who was responsible for desertion and cruelty and not vice-versa. The wife also expressed apprehensions about her safety in case she were to go back to the husband to live with him. ( 4 ) IN support of his case, the husband examined himself and Sri Mryuthyunjaya-P. W. 2. The wife also appeared as her own witness apart from examining Sri. Channabassaiah R. W. 2 and Sri. Nagappa R. W. 3 in support of her version. The Court below has upon appreciation of the material placed on record came to the conclusion that the husband had not made out a case for a decree of rest restitution conjugal rights. The wife also appeared as her own witness apart from examining Sri. Channabassaiah R. W. 2 and Sri. Nagappa R. W. 3 in support of her version. The Court below has upon appreciation of the material placed on record came to the conclusion that the husband had not made out a case for a decree of rest restitution conjugal rights. That is because the evidence on record according to the trial Court established that the husband had been guilty of ill treatment towards the wife not only in his own house but even in the house of his relatives. The Court has also come to the conclusion that the husband was interested in another woman of his village which he used to frequent often. It is on that basis concluded by the Trial Court that the wife had a reasonable ground to stay away from the petitioner-husband. The prayer for grant of decree for restitution of conjugal rights was accordingly declined. Having said so, the Court below has proceeded to pass a decree for divorce. The relevant portion of the impugned Judgment reads thus :"under these circumstances the fear expressed by the respondent that there is likelihood of her death, cannot be ruled out. It is also by way of evidence before this Court that the wife of the uncle of the petitioner was thrown in the river. This version naturally is bound to create a fear in the mind of the respondent. Coupled with this factor fortifies stand, there is also the evidence of respondent that she saw her husband with another woman in the house of the petitioner also makes her belief a concrete one. In addition to that, there is the independent evidence of a man of the age of 74 years, that he has seen the respondent being assaulted by the petitioner in his own presence, and being dragged by the other members of the petitioner's family. Therefore, I am of the view that the conditions of the case do not warrant restitution of conjugal rights, but a divorce on the ground of cruelty, and voluntary sexual intercourse with other person than the respondent, the circumstances, which cannot make the parties to live in peace. Hence, I allow the petition for divorce under S. 13 of the Hindu Marriage Act. " ( 5 ) APPEARING for the appellant-wife, Mr. Hence, I allow the petition for divorce under S. 13 of the Hindu Marriage Act. " ( 5 ) APPEARING for the appellant-wife, Mr. Mallikarjun argued that the Court below had fallen in serious error in granting a decree for divorce after recording a clear finding that it was the husband who was actually guilty of having treated the wife with cruelty and driven her out of the house. He urged that the view taken by the Trial Court that although the husband has not made out a case for a decree for restitution of conjugal rights on account of his own acts of cruelty, desertion and infidelity towards the wife,yet a decree for divorce could be granted in his favour under S. 13 was patently perverse and wholly unsustainable. He contended that the Court below had remained oblivious of the fact that the husband could not be allowed to take benefit of his own fault while seeking relief in proceedings under the Hindu Marriage Act, 1955 and which he would be doing if the decree passed by the Court below is upheld. ( 6 ) ON behalf of the respondent-husband, it was on the other hand argued that the alleged illicit relationship between the respondent-husband and the other woman was never set up by the appellant wife in the objections filed by her. He submitted that although the husband had made efforts to bring back the appellant-wife, he had failed to do so on account of her unrelenting attitude. He urged that the wife had pursuant to the efforts made by the husband come to Hubli, but instead of staying with him preferred to stay with one of her relatives about which fact he remained ignorant till such time the proceedings under S. 125 of the Cr. P. C. was initiated by him. These circumstances according to the Learned Counsel constituted a sufficient ground for the Court below to pass a decree for divorce on the ground of desertion and cruelty. ( 7 ) WE have given our anxious consideration to the submissions made at the Bar. We find it extremely difficult to subscribe to the view taken by the Court below. The trial Court has as seen from the portion of the Judgment extracted earlier,recorded a finding that the husband not made out a case for grant of a decree for restitution of conjugal rights. We find it extremely difficult to subscribe to the view taken by the Court below. The trial Court has as seen from the portion of the Judgment extracted earlier,recorded a finding that the husband not made out a case for grant of a decree for restitution of conjugal rights. The Court has while doing so accepted the version given by the wife that the conduct of the husband created a reasonable apprehension in her mind that it would be unsafe for her to stay with him. That part of the finding does not in our opinion call for any interference in appeal, as indeed, no effort was made even by Learned Counsel for the respondent to show that the view taken by the Court below was erroneous or against the weight of evidence available on record. We have therefore no difficulty in affirming the finding that the husband had not made out a case for grant of decree for restitution of conjugal rights having regard to the fact that it was he who was guilty of having caused physical and mental cruelty to her and forcing her out of the house to live separately. The Trial Court has also while declining restitution of conjugal rights given credence to the version of the appellant wife that the respondent-husband was having an illicit relationship with another woman. Suffice it to say that on the material placed before the Court the husband was not entitled to a decree for restitution of conjugal rights prayed for by him. So far, there is no difficulty. The difficulty arises when We come to the relief which the Trial Court has granted to the husband in the nature of a decree for dissolution of marriage. What the Trial Court appears to have done is to make the wrongful conduct of the husband a basis for grant of relief against the wife. Having stated that the facts and circumstances of the case did not warrant restitution of conjugal rights, the Court below held that a decree for divorce could nevertheless be granted on the ground of 'cruelty' and on the ground that 'the husband had voluntary sexual intercourse with a person other than the wife. ' The Court has not as noticed earlier recorded any finding to the effect that wife had treated the husband with cruelty. ' The Court has not as noticed earlier recorded any finding to the effect that wife had treated the husband with cruelty. It was in fact the husband's treatment towards the wife that was found fault with. So also the Court has neither found nor was there an allegation that the wife had voluntary sexual intercourse with any person other the husband. That was also a circumstance held against the husband who was found to be interested in some other woman living in his village. If that be so, it is difficult to appreciate how the Court below could make the wrongful conduct of the husband a basis for grant of relief against the wife. The order made by the Court amounts to placing a premium on the misconduct of the husband and his acts of cruelty towards the wife. Far from granting to the husband any relief on the basis of his own acts of omission and commission, the Court ought to have deprecated the same and dismissed the petition with costs. The Court has not obviously done so because it appears to be oblivious of even the elementary principles of law governing proceedings under the Hindu Marriage Act, 1955. A plain reading of S. 13 of the Act would show that a decree for dissolution can be passed only if one of the grounds set out thereunder is established by the party seeking that relief. For a decree on the ground of cruelty it was essential to prove that the spouse against whom the relief is sought had treated the petitioner with cruelty. Similarly on the ground of adultery also a decree could be passed only upon proof of the fact that the opposite party had after solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse. None of those two grounds had been established by the husband in the instant case. And yet the court below has granted a decree against the wife as if the wife could be made to suffer for the acts of cruelty of the husband or his adulterous conduct. It is significant to note that even after one of the grounds given in S. 13 are established, the Court is under S. 23 of the Hindu Marriage Act, 1955 required to examine whether the party seeking relief is taking advantage of his own fault. It is significant to note that even after one of the grounds given in S. 13 are established, the Court is under S. 23 of the Hindu Marriage Act, 1955 required to examine whether the party seeking relief is taking advantage of his own fault. It is only when the Court is satisfied that he or she is not taking any such advantage that a decree can be passed by it. The husband in the instant case was on the basis of the finding recorded by the Court below clearly trying to take advantage of his own wrong. Having treated the wife with cruelty, forced her out of her matrimonial home and having established an illicit liaison with another woman, the husband was trying to make those wrongs a basis for grant of relief against the wife. We have no manner of doubt that the husband could not have done so. We note with regret that the Trial Court has valid to notice this aspect while passing a decree of divorce in favour of the husband. Suffice it to say that the Judgment passed by the Trial Court is far from satisfactory not only in terms of its contents but also the Judicial approach which the Court below was required to adopt in such matters. We have therefore no hesitation in setting aside the same. ( 8 ) WE accordingly allow this appeal and set aside the Judgment and Decree passed by the Trial Court and dismiss the petition filed by the respondent-husband with costs throughout which we hereby assess at Rs. 5,000/ -. ( 9 ) WE further direct that a copy of the Judgment passed by the Trial Court and a copy of this Judgment shall be placed on the personal record of the officer concerned if he has not already retired from service. Another copy shall be placed before the Hon'ble Administrative Judge, incharge of the District where the Officer is working at present. Appeal allowed. --- *** --- .