JUDGMENT : J.B. PARDIWALA, J. This appeal under Section 19 of the Family Courts Act, 1984, is at the instance of a unsuccessful wife in a proceeding for divorce under the Hindu Marriage Act, and is directed against the judgment and order dated 1st May, 2004, passed by the Family Judge of Court No.2, Ahmedabad, in Family Suit No. 1511 of 2000, by which the learned trial Judge allowed the Suit filed by the plaintiff-husband for divorce and dissolved the marriage. The learned Judge also awarded a sum of Rs. 30,000/-in favour of the appellant herein by way of permanent alimony towards her maintenance. 2. The case made out by the respondent-husband in his application under Section 13 of the Hindu Marriage Act for dissolution of the marriage may be enumerated, rather in detail in order to appreciate the allegations of cruelty in proper perspective. 2.1 The parties were married according to the Hindu rites and rituals on 15th February, 1994, at Ahmedabad. After the marriage, the parties started residing together and for the first few initial days after the marriage, the relations of the parties with each other were quite normal, but thereafter, the wife started showing her true colour. The wife started behaving with the husband badly and her attitude towards the parents of the husband was also very bad. 2.2 Within seven days from the date of the marriage, according to the custom prevailing in the community, the wife was sent at the house of her parents, but thereafter, she refused to return to her matrimonial home. With the intervention of friends and relatives, the wife was persuaded to return to her matrimonial home, but even after returning to the matrimonial home, there was no change in her behaviour. 2.3 The wife informed the husband that her marriage was against her wishes and that she got married only due to the pressure of her parents. 2.4 The husband alleged that his wife was very short-tempered, independent-minded and she adopted a free lifestyle and liked to live on her own terms and due to such attitude, she used to walk out of the house at any time without informing any of the members of the family. 2.4 The husband alleged that his wife was very short-tempered, independent-minded and she adopted a free lifestyle and liked to live on her own terms and due to such attitude, she used to walk out of the house at any time without informing any of the members of the family. When the husband used to persuade the wife to behave in a proper manner, the wife used to give threats that she would file a false police complaint and see to it that all the family members at the matrimonial home would be behind the bars. 2.5 The wife had a lot of prejudice towards her husband. On 28th September, 2004, the wife had picked up a quarrel with the parents of her husband and threatened that she would commit suicide by setting herself ablaze. On the next day i.e. on 29th September, 1994, the husband called for the parents of his wife and appraised them about the behaviour of their daughter. At that point of time, the wife along with all her belongings like ornaments, clothes and other household articles walked out of her matrimonial home with her father. At that time, the father of the wife had informed that they would see to it that the daughter returned soon to her matrimonial home. 2.6 Even after a long period of time, the wife did not return to her matrimonial home and despite making all attempts to settle the dispute with the intervention of the parents of both the sides, including friends and relatives, the wife refused to return to her matrimonial home. 2.7 On 14th April, 1996, the father and the brother of the wife along with few other individuals came at the house of the husband at around 2' O Clock in the night and demanded a sum of Rs. 50,000/-for dissolution of the marriage. The father, the brother and the other individuals threatened the husband and his family members that if they would not pay a sum of Rs. 50,000/-, then they would not allow the husband and his parents to live in peace. At that point of time, the husband had informed the father and the brother of his wife that he was ready and willing to get his wife back and they would not pay a single penny. 2.8 Thereafter, the father of the wife requested the community people to intervene. At that point of time, the husband had informed the father and the brother of his wife that he was ready and willing to get his wife back and they would not pay a single penny. 2.8 Thereafter, the father of the wife requested the community people to intervene. During the meeting convened by the community people, the husband remained present and assured before the community people that he was ready and willing to get his wife back at his house; however, despite such assurance being given, the wife refused to return to her matrimonial home and thereby refused to discharge her marital obligations as a wife. 2.9 Thereafter, the husband got a notice dated 16th July, 1996, served on his wife through his Advocate, but there was no reply given by the wife to the said notice. The husband also addressed a letter to the Womens' Security Cell, requesting the President of the said Cell to intervene and persuade his wife to return to the matrimonial home, however, despite such efforts being made by the organization, the wife failed to return to her matrimonial home. 2.10 The husband, thereafter, preferred an application dated 16th September, 1999, before the community members at Odhav. The husband appeared before the community members and once again assured and expressed his desire to get his wife back home, but at that point of time, the father of the wife demanded a sum of Rs. 50,000/-and also threatened that if such amount was not being paid, they would carry the matter to the Court of law. 2.11 The husband alleged that his wife deserted him since 28th September, 1994, and despite all efforts for the reunion, the wife kept insisting on dissolution of the marriage and a sum of Rs. 50,000/-. 2.12 On 9th May, 2000, the husband once again preferred an application before the community people for settlement. On 4th June, 2000, the husband and few other individuals from his side remained present before the community panch, but the other side failed to turn up and conveyed a message that they would thrash out the matter in the Court of law. On 4th June, 2000, the husband and few other individuals from his side remained present before the community panch, but the other side failed to turn up and conveyed a message that they would thrash out the matter in the Court of law. In such circumstances, the husband was left with no other option, but to file a petition under Section 13 of the Hindu Marriage Act, for dissolution of marriage on the ground that the appellant-wife had deserted him more than six years from the date of the petition and also on the ground of mental cruelty and harassment. 3. The Suit was contested by the appellant-wife by filing a written statement at Exh.7 and the defence taken up by the appellant-wife may be summed up thus: 3.1 There was no cause of action for filing the Suit, which was a misconceived and harassing one and containing false, fabricated, perverse and manufactured story purposely designed with ulterior motive. The application filed by the husband for divorce suffer from the mischief of suppression of material facts and on such ground alone the application was liable to be rejected. According to the wife, at no point of time she had behaved indecently with her husband or with any of the family members of her husband. She denied that she used to tell her husband that her marriage was against her wishes and it was only due to the pressure of her parents that she got married with the respondent herein. 3.2 The wife also denied being a very short-tempered lady and fond of good things in life. According to the wife, the allegations that she used to leave the house at any time without informing the family members was nothing short of defamation and also amounted to pointing a finger towards her character. 3.3 She also denied the demand by her or through her parents and brother for divorce on payment of Rs. 50,000/-. The wife also denied about the meetings convened by the community panch at the instance of the husband for the purpose of settlement. According to the wife, it was the husband who was in fault, as at no point of time the husband made any efforts to make the marriage a success. The wife alleged that a substantial part of the salary was being spent by the husband for extraneous matters. According to the wife, it was the husband who was in fault, as at no point of time the husband made any efforts to make the marriage a success. The wife alleged that a substantial part of the salary was being spent by the husband for extraneous matters. The husband used to refuse to give any money for household maintenance and other basic requirements. The wife has specifically alleged that it appeared from the behaviour and attitude of the husband that he was having an extra-marital relation with some other lady and was inclined to get married with the said lady. The wife has also alleged that some time back a lady had come to meet her and had pressurised her to give divorce by accepting money. The wife has averred in her written statement that it was stated by the lady that unless and until she would not give divorce to her husband, the said lady would not be able to marry with her husband. The wife in such circumstances, prayed before the Family Court that the application for divorce filed by her husband deserved to be rejected. 4. The Family Court framed the following issues for determination vide Exh.15. 1. Whether the petitioner proves that after solemnization of the marriage the respondent treated the petitioner with cruelty as alleged in the petition? 2. Whether the petitioner proves that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the date of the presentation of this petition without any cause and without his consent? 3. Whether the petitioner is in any way taking advantage of his own wrong or disability for the purpose of relief as prayed for? 4. Whether the petitioner in any manner has condoned the cruelty? 5. Whether the petition is presented or prosecuted in collusion with the respondent? 6. Whether the petitioner is entitled to a decree of divorce? 7. If yes, whether the respondent is entitled to permanent alimony? If so, what amount? 8. What order and decree? 5. The learned trial Judge, on consideration of the materials on record, came to the conclusion that the plaintiff was successful in proving that his wife had deserted him for two years from the date of the application without any reasonable ground. If so, what amount? 8. What order and decree? 5. The learned trial Judge, on consideration of the materials on record, came to the conclusion that the plaintiff was successful in proving that his wife had deserted him for two years from the date of the application without any reasonable ground. The learned trial Judge also held that the wife was guilty of treating her husband with mental cruelty. The learned trial Judge also recorded a finding that the husband was in no manner taking advantage of his own wrong or any of the unlawful acts complained of by the wife. 6. It appears that the learned trial Judge came to the conclusion that the parties were residing separately past ten years and it was a case of irretrievable breakdown of marriage and there were no chances of any reconciliation. The learned trial Judge came to the conclusion that the wife was not at all interested in discharging her marital obligations and that she had voluntarily deserted her husband since, 1994. In such circumstances, in the final conclusion, the learned trial Judge held that it was in the interest of both the parties to dissolve the marriage, and accordingly passed a decree for dissolution of the marriage in favour of the husband. 7. Being dissatisfied, the wife has come up with this appeal. 8. Submissions on behalf of the appellant: 8.1 Mr. Jayesh A. Dave, the learned Advocate appearing for the appellant, vehemently submitted that the Family Court committed a serious error in allowing the suit filed by the husband praying for a decree of divorce on the ground of cruelty and desertion as enumerated in Section 13(1) of the Hindu Marriage Act, 1956. 8.2 Mr. Dave also submitted that the Court below failed to appreciate the evidence of the parties in its true perspective resulting in a failure of justice. Mr. Dave submitted that the irretrievable breakdown of marriage could not have been made a ground for dissolution of marriage. According to Mr. Dave, the finding recorded by the learned trial Judge that the wife was not interested in living a happy married life is a finding based on no evidence. None of the aspects highlighted by the wife have been considered by the Court below. 8.3 According to Mr. According to Mr. Dave, the finding recorded by the learned trial Judge that the wife was not interested in living a happy married life is a finding based on no evidence. None of the aspects highlighted by the wife have been considered by the Court below. 8.3 According to Mr. Dave, the Court below should have appreciated an important question of law that it was the husband who was trying to take undue advantage of his wrong and such being the position, the husband was not entitled for a decree of divorce. Mr. Dave drew our attention to the fact that the husband, during the pendency of proceeding before the Family Court, had already started living an adulterous life with a lady, as a result, a female child was born on 14th February, 2004, whereas the suit was decreed on 1st May, 2004. Mr. Dave submitted that this fact was not known to his client in the proceeding before the trial Court, as a result, the attention of the trial Court could not be drawn to such a fact. In such circumstances, we permitted Mr. Dave to file an appropriate application for taking note of such a subsequent event with relevant evidence. Mr. Dave thereafter filed an application under Order 41 Rule 27 of the Code of Civil Procedure for adducing additional evidence to prove the fact of a child being born to the husband during the adulterous relations with a lady much before the decree for divorce was passed by the Family Court. Mr. Dave by way of additional evidence, brought a birth certificate on record showing that a girl named "Yashasvi" was born on 14th February, 2004. In the birth certificate, the name of the husband figures as father and the name of the mother figures as "Harshaben". Mr. Dave very vehemently submitted that on the strength of such fact alone, the decree for dissolution of the marriage deserves to be set aside. 9. Submissions on behalf of the respondent-husband: 9.1 Mr. H. R. Prajapati, the learned Advocate appearing for the respondent submitted that no error, not to speak of any error of law, could be said to have been committed by the learned trial Judge in allowing the suit for dissolution of the marriage filed by his client. 9.2 Mr. 9. Submissions on behalf of the respondent-husband: 9.1 Mr. H. R. Prajapati, the learned Advocate appearing for the respondent submitted that no error, not to speak of any error of law, could be said to have been committed by the learned trial Judge in allowing the suit for dissolution of the marriage filed by his client. 9.2 Mr. Prajapati submitted that there is ample material on record to show that within seven days from the date of the marriage, the wife left the matrimonial home and despite all efforts made by the husband and his family members to bring her back, the wife failed to return to her matrimonial home and discharge her matrimonial obligations as a wife. According to Mr. Prajapati, such being the position, the Court below rightly came to the conclusion that it was a case of irretrievable breakdown of marriage and there were no chances of any reconciliation between the parties. 9.3 Mr. Prajapati, during the course of his submissions, however, admitted about the birth of the child named "Yashasvi" during the pendency of the Suit before the Family Court. According to Mr. Prajapati, his client developed intimacy with another lady only because of the fact that the appellant herein refused to perform her duties as a wife and deserted his client. Mr. Prajapati tried to convince us that we should not interfere in this appeal filed by the appellant-wife solely on the ground that his client has now remarried and is having two children. According to Mr. Prajapati, at this stage if the decree for divorce is set aside, not only the husband will be put to immense difficulty but the life of the another lady and her two children will also be jeopardized. The sum and substance of Mr. Prajapati's submission is that this appeal should fail only on the ground that during the pendency of the same, his client remarried and during the wedlock from the second marriage two children are born. Mr. Prajapati concedes to the fact that so far as the first child is concerned, the girl was born much before the decree came to be passed in favour of his client. Mr. Prajapati in such circumstances prayed that we should not interfere with the judgment and order passed by the Court below and the appeal be dismissed. 10. Mr. Prajapati concedes to the fact that so far as the first child is concerned, the girl was born much before the decree came to be passed in favour of his client. Mr. Prajapati in such circumstances prayed that we should not interfere with the judgment and order passed by the Court below and the appeal be dismissed. 10. Analysis: Before adverting to the rival submissions made by either side, we deem fit and proper to look into the oral evidence on record led by the parties. 10.1 The original plaintiff-husband examined himself vide Exh.17. In his oral evidence on affidavit, he reiterated almost the same case as pleaded in his application for dissolution of marriage under Section 13 of the Act. He has also deposed levelling allegations against the wife that only with a view to extort money, an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was filed by the wife, being HMP No. 67 of 1999 (New No. 638 of 2000). He has deposed that he appeared in those proceedings and he also filed his written statement. He has deposed that in those proceedings, he had shown his willingness to take back his wife. In those proceedings the wife also filed an application for maintenance under Section 24 of the Act, and the Court ordered that Rs. 1,000/-be paid every month to the wife towards the maintenance. He has deposed that as on the date of giving oral evidence on affidavit, he had paid a sum of Rs. 22,000/-to his wife. He has further deposed that his wife even before the Court had refused to return to her matrimonial home. In his cross-examination, he deposed in no uncertain terms that he was not ready and willing to keep his wife. He denied the suggestion that his wife, as on that day also, was ready and willing to stay with him. 10.2 The husband on his behalf examined one Shri Rasikbhai Makwana, vide Exh.45. This witness happens to be the cousin brother of the wife. In his evidence, he deposed that he was informed by Ashwin that his wife was not behaving properly and there was complete lack of compatibility between the spouses. He has also deposed that Ritaben used to go to her parental home quite frequently without seeking permission of anyone at her matrimonial home. In his evidence, he deposed that he was informed by Ashwin that his wife was not behaving properly and there was complete lack of compatibility between the spouses. He has also deposed that Ritaben used to go to her parental home quite frequently without seeking permission of anyone at her matrimonial home. He has deposed that he had enquired from Rita as to what was the problem and in reply Rita had informed him that she was not happy with the relations with her husband. 10.3 The wife gave her oral evidence on affidavit, vide Exh.47. In her evidence she has deposed that her husband used to address very nasty letters much prior to their marriage, which could be termed as perverse. She has deposed that from the contents of the letters, it could be believed that her husband was sexually perverse as he had demanded physical relations even before they were lawfully married. The wife produced letters vide Exhibits 39, 40, 41, 42 and 43. She led much emphasis on the contents of the letter Exh.42, in which the husband is said to have made demand for sex before marriage. She has deposed that despite all this she got married and tolerated the most indecent behaviour of her husband. She has further deposed that she was performing all her marital obligations which an ideal Hindu woman was expected to perform. She has deposed that the entire case put up by the husband that it was the wife who deserted him was false, but as a matter of fact, on 29th September, 1994, her parents were called by the husband and she was forced to leave the matrimonial home along with her parents. She has also deposed that after receiving two notices from her husband, Exhibits 26 and 32, she had made attempts two to three times to return to her matrimonial home, but the husband had refused to keep her. 10.4 She has further deposed that she had also filed an application under Section 9 of the Hindu Marriage Act, for restitution of the conjugal rights. 10.4 She has further deposed that she had also filed an application under Section 9 of the Hindu Marriage Act, for restitution of the conjugal rights. She deposed clarifying that when the proceedings under Section 9 of the Act reached the stage of leading evidence, her Advocate advised her that the proceedings should be withdrawn because in the event if a decree was passed and thereafter for a period of one year if the spouses were unable to live together, then a right would accrue in favour of the husband to pray for divorce. On such advice of her Advocate, she thought fit to withdraw the proceedings under Section 9 of the Act, being HMP No. 638 of 2000 by filing a pursis, being Exh.26. She denied in her evidence the allegations that her parents including her brother had gone to the house of her husband at 2' O Clock in the night and demanded Rs. 50,000/-for the purpose of settlement. In her cross-examination, she deposed that it was true that on 29th April, 1994, her parents had come at her matrimonial home and had taken her along with them. She has also deposed that it was true that before the community panch, she had not remained present. She denied all other suggestions which were put to her. She also deposed that it was true that since September 28, 1994, she was staying at her parental home. 10.5 The wife on her behalf examined one Shri Maganbhai Ranchhodbhai Kapadia, at Exh.48. This witness deposed that Ritaben was her cousin sister. He retired from service as a Telephone Supervisor on 31st August, 2000. He deposed that he knew Ritaben since her childhood and Rita was a very bright and obedient girl. He has further deposed that the wife of the elder brother of Ashwin was from the family of his father-in-law and she was also at her parental home as there was a social gathering at the house of Ashwin. He had gone to invite the wife of the elder brother of Ashwin, but she had refused to come and that was the reason why she had requested this witness to involve himself for the purpose of settlement. He had gone to invite the wife of the elder brother of Ashwin, but she had refused to come and that was the reason why she had requested this witness to involve himself for the purpose of settlement. He has further deposed that on his request, the wife of the elder brother of Ashwin came to the village Soneri, but no sooner the function was over, she was kicked out of the house. He has further deposed that he had made attempts for settlement between Rita and her husband, but during the talks of settlement, Ashwin had made it very clear without assigning any cogent reasons or grounds that he was not ready and willing to maintain relations with Rita. Even in the second meeting, Ashwin made it very clear without any cogent reason that he was not ready and willing to keep Rita and kept on insisting for separation. 11. Having heard the learned Counsel for the respective parties and having gone through the materials on record, in our opinion the following questions fall for our consideration:- 1. Whether the husband has been able to prove the allegations of cruelty as pleaded in the application for divorce? 2. Whether the husband could be said to be taking advantage of his own wrong and therefore, is not entitled to reap the benefit of the decree of divorce granted by the Court below; more particularly in the light of the fact that during the pendency of the proceedings before the Family Court, he had started living an adulterous life with a lady, as a result of which a female child was born on 14th February, 2004, who was named " x "? 3. Whether this appeal filed by the wife should fail only on the ground that the husband has remarried and is having two children born from the wedlock of the second marriage? 4. Whether the husband should be permitted to reap the benefit of the decree of divorce; more particularly when his act of getting remarried immediately after the decree of divorce was passed could be said to have frustrated the statutory obligation of this Court in terms of Section 23 (2) of the Act, requiring the Court in the first instance to make every endeavour to bring about a reconciliation between the parties? 12. 12. In the written statement filed by the wife, there is a very categorical averment that the behaviour of the husband was such which exhibited as if he had illicit relations with another lady. The wife, in her written statement also averred that a lady had come to meet her and told her that she should give divorce to her husband, so that he could remarry with the said lady. In the absence of any concrete material in this regard, the wife might not have thought fit to depose about the extramarital relations of the husband. However, the apprehension which was expressed by the wife in her written statement was not without any basis. During the pendency of the appeal, the wife was successful in procuring the necessary evidence of extramarital relations of the husband and such evidence was permitted to be adduced under the provisions of Order 41 Rule 27 of the Civil Procedure Code. The birth certificate produced by the wife evidencing that a female child was born on 14th February, 2004, is conclusive proof of the fact that the husband had another lady in his life and was living an adulterous life. In our opinion, the defence of the wife before the trial Court that her husband was living an adulterous life stands conclusively established. The husband filed a petition for divorce on the ground of desertion on the part of the wife. The wife, in reply, made allegations of adultery against the husband. The allegations of adulterous conduct of the husband have been found to be correct and the reasons assigned by the husband for his wife being not ready to live with him, in our opinion, could be said to be false. There has been no cause of grievance or any allegation of objectionable behaviour by any one except the feeble plea put forward by the husband that wife was dissatisfied with the living conditions of her husband's place and she wanted to live her own life , and such allegations are proved to be incorrect on adducing the additional evidence. 13. The defence of the wife for having a justified reason to live away from the husband, in our opinion, was correct. The behaviour of the husband certainly falls in the category of misconduct on his part. 13. The defence of the wife for having a justified reason to live away from the husband, in our opinion, was correct. The behaviour of the husband certainly falls in the category of misconduct on his part. In such circumstances, it is too much on the part of the husband to claim that he be given the advantage of his own wrong and be granted a decree of divorce on the ground of desertion on the part of his wife who was still prepared to live with him, provided he snapped his relationship with the other woman. In such circumstances, the provisions contained under Section 23 of the Hindu Marriage Act would be attracted and the husband would not be allowed to take advantage of his own wrong. 14. In the aforesaid context, we may quote with profit a decision of the Supreme Court in the case of Chetan Dass Vs. Kamla Devi, reported in AIR 2001 SC 1709 . In the said case, the husband filed a petition for divorce on the ground of desertion on the part of the wife. The wife, in reply, made allegations of adultery against the husband. The allegations of adulterous conduct of the husband was found to be correct and the Courts below recorded a finding to that effect. The reasons assigned by the husband for his wife being not ready to live with him, were also found to be false. The defence of the wife for having a justified reason to leave her matrimonial home was also found to be correct. In such circumstances, the Supreme Court took the view that the husband cannot take advantage of his own wrong and was not entitled to a decree of divorce on the ground of desertion on the part of his wife. While holding so, the Supreme Court made the following observations, which we deem fit to quote. "..... In such circumstances, the Supreme Court took the view that the husband cannot take advantage of his own wrong and was not entitled to a decree of divorce on the ground of desertion on the part of his wife. While holding so, the Supreme Court made the following observations, which we deem fit to quote. "..... Let the things be not misunderstood nor any permissiveness under law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrong-doer and walk away out of the matrimonial alliance on the ground that marriage has broken down. Lest the institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrong-doer who by heart, wished such an outcome by-passing on the burden of his wrongdoing to the other party alleging her to be the deserter leading to the breaking point." 15. Thus, we find it difficult to accept the case of the husband that the wife has been guilty of causing cruelty to him. On the other hand, this is a case where the problem in the marital relationship occurred on account of the conduct of the husband in having an extramarital relationship, as a result of which, his attitude and behaviour towards the wife became negative and totally averse to a cordial marital life. In the aforesaid context, we may quote below with profit Halsbury's Laws of England, Fourth Edition, paragraph 613:- "Adultery or other misconduct of deserted party after desertion. A spouse who deserts may repent during the statutory period of the intention to stay away, but may be prevented from returning because of the attitude or conduct of the other spouse, as where a husband who is deserted lives with another woman. If a spouse commits adultery after he or she has been deserted, or commits any other misconduct or neglect, the desertion is not terminated as a matter of law; the material question is whether the deserter knows of the adultery, or whether it has any influence on his or her conduct. If a spouse commits adultery after he or she has been deserted, or commits any other misconduct or neglect, the desertion is not terminated as a matter of law; the material question is whether the deserter knows of the adultery, or whether it has any influence on his or her conduct. In order to judge whether there has been any such influence, one must look not only at the conduct of the petitioner, but also at the conduct and declaration of the respondent. It is for the person committing the adultery to show that the adultery did not affect the deserting party's conduct at all, bearing in mind especially the impending of a possible reconciliation by reason of that adultery. If it is left in doubt whether the respondent knew of the adultery, or if known, whether his or her conduct was affected by it, the petitioner will fail to discharge the burden of proof. The question is one to be decided according to the circumstances of each case. A party who has been deserted but who thereafter commits adultery might be charged with an allegation that he or she has committed adultery and the petitioner finds it intolerable to live with him or her." 16. It is established beyond doubt that during the pendency of the proceedings before the trial Court itself, the husband had already started living an adulterous life, as a result, a female child was born on 14th February, 2004, whereas the Suit filed by the husband was decreed on 1st May, 2004. It also appears that the present appeal was ordered to be admitted on 3rd August, 2004, and on that very day, ad-interim relief staying the operation of the judgment and decree passed by the Family Court was also granted. It appears that thereafter, on 8th August, 2004, the respondent-husband solemnised the second marriage. At this stage, it may not be out of place to look into the provisions of Section 15 of the Hindu Marriage Act, 1955. It appears that thereafter, on 8th August, 2004, the respondent-husband solemnised the second marriage. At this stage, it may not be out of place to look into the provisions of Section 15 of the Hindu Marriage Act, 1955. Section 15 of the Act reads as under:- "Sec.15 -Divorced persons when may marry again.--When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time of appealing his expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again." 17. Thus, it is very clear that the respondent could not have remarried, during the pendency of the appeal filed by the wife. If a party after getting a divorce by a trial Court intends to remarry, it is the duty of such party to ascertain on the date of marriage whether any appeal has been preferred in the meantime by the other spouse. Regarding the position of second marriage during the pendency of an appeal against a decree for divorce, the law is now settled as pointed out by the Supreme Court in the case of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC pg 73, that by remarriage, the divorced person undertakes a risk by entering into such remarriage and its validity is entirely dependent on the outcome of the pending appeal [See Debjani Sinha Vs. Bikash Chandra Sinha, reported in 2006 (2) Cal. HN 235. 18. In the aforesaid context, we may quote with profit a decision of the Supreme Court in the case of Prakash Chand Sharma Vs. Vimlesh 1995 Supp. (4) SCC 642. In the said case, the appellant was the husband and the respondent was the wife. For about 15 months they lived together and thereafter, difference arose necessitating a separation. The husband filed a divorce petition seeking dissolution of the marriage on the counts of desertion, cruelty and unsoundness of mind. The trial Court granted decree for divorce on the first two counts rejecting the third count. The first appellate Court, however, affirmed the decree on the first count only, namely, cruelty, rejecting the second count of desertion. The husband filed a divorce petition seeking dissolution of the marriage on the counts of desertion, cruelty and unsoundness of mind. The trial Court granted decree for divorce on the first two counts rejecting the third count. The first appellate Court, however, affirmed the decree on the first count only, namely, cruelty, rejecting the second count of desertion. In the Second Appeal, the High Court reversed the decree holding that the husband had failed to prove cruelty. The husband, dissatisfied with such order passed by the High Court, preferred appeal before the Supreme Court. It appears from the facts of that case that after the first Appellate Court affirmed the decree of divorce on 29th August, 1988, and after the Second Appeal was preferred by the wife, the husband married again on 21st November, 1988 and a child was also born through that marriage. This was a feature which was highlighted before the Supreme Court in the course of the hearing. It was argued before the Supreme Court that having regard to the fact that both the parties had drifted from the married life, the marriage must be taken as irretrievably broken, more so because the husband had remarried and had a child through the second marriage. The Supreme Court rejected such a plea raised on behalf of the husband and observed as under:- "4. However, Mr. Pramod Swarup, the learned counsel for the appellant-husband, vehemently submitted that having regard to the fact that both the parties have drifted from married life the marriage must be taken as irretrievably broken, more so because the husband has remarried and has a child through the second marriage and therefore, this Court should grant a divorce. We do not think that in the facts and circumstances of the case such a view can be taken. From the very beginning the wife has been saying that she is ready and willing to live with the husband. It is the husband who is denying her access. If the husband remarried in hot haste after the institution of the second appeal which was delayed by only three days, we cannot see how that fact can come to his rescue. It is the husband who is denying her access. If the husband remarried in hot haste after the institution of the second appeal which was delayed by only three days, we cannot see how that fact can come to his rescue. That is clearly opposed to Section 15 of the Hindu Marriage Act which in terms states that when a marriage is dissolved by a decree of divorce and there is no right of appeal against the decree or where there is such a right, the time for filing an appeal has expired or an appeal has been presented and has been dismissed, it shall be lawful for either party to the marriage to remarry. In the instant case, no doubt the second appeal was delayed by three days but the fact is that it was instituted and was pending on the date of the second marriage. Therefore, the husband acted in disregard of Section 15 and cannot get the benefit of his own wrong." In our opinion, in the present case, there is a serious misconduct on the part of the respondent-husband not only before the passing of the decree, but also subsequent to the passing of the decree of divorce, by marrying even after filing of this appeal. By such wrongful misconduct, the husband, in our view should not be permitted to take advantage of his own wrong. 19. Section 23 of the Hindu Marriage Act, 1955 makes the position of law very clear. Section 23 of the Act reads as under:- "Sec.23. By such wrongful misconduct, the husband, in our view should not be permitted to take advantage of his own wrong. 19. Section 23 of the Hindu Marriage Act, 1955 makes the position of law very clear. Section 23 of the Act reads as under:- "Sec.23. -Decree in proceedings.--(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that -- (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or subclause (c) of clause (ii) of Section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified[***] in clause (i) of sub-clause (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and] (c) [the petition (not being a petition presented under Section 11)] is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of Section 13]. (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.] (4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]" 20. A plain reading of the provisions of Section 23 clause (1) of the Act makes it clear that if the husband, as in the present case, is found taking advantage of his own wrong, the Court would be justified in refusing to pass the decree of divorce in favour of such a husband. Sub-section (1) of Section 23 circumscribes the jurisdiction of the Court trying matrimonial cases under the Act. It imposes an obligation or duty on the Court to satisfy itself that the petition does not suffer from any of the impediments set out in clauses (a) to (e) of that subsection. This becomes clear from the words "if the Court is satisfied" employed in the opening lines of the sub-section. This is a mandatory duty or obligation cast by the statute on the Court whether or not the application is defended. The concluding words "in such a case, but not otherwise" clearly indicate that the sub-section is mandatory in nature and if the Court fails to follow the requirements of clauses (a) to (e) of sub-section (1) of Section 23, the consequent decree should be set aside. 21. If a decree is passed by a Court or confirmed in appeal by the appellate Court in ignorance of the provision of Section 23, clause (1) of the Act, such a decree would be a illegal. As held by the Supreme Court in Jagraj Singh Vs. 21. If a decree is passed by a Court or confirmed in appeal by the appellate Court in ignorance of the provision of Section 23, clause (1) of the Act, such a decree would be a illegal. As held by the Supreme Court in Jagraj Singh Vs. Birpal Kaur reported in AIR 2007 SC 2083 , the approach of a Court of law in matrimonial matters should be much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire. Matrimonial matters must be considered by the Courts with human angle and sensitivity. Delicate issues affecting conjugal relations have to be handled carefully and legal provisions should be construed and interpreted without being oblivious or unmindful of human weaknesses. 22. The Court is expected to make all attempts and endeavours for reconciliation. However, the act of the husband in getting remarried during the pendency of the appeal coupled with the fact that a child was already born during the relations with the second lady much before the second marriage, has made it impossible for us to discharge such a statutory obligation. This is nothing but an attempt on the part of the husband in taking undue advantage of his own wrong. 23. All through out the course of hearing of this appeal, Mr. Prajapati, the learned Advocate appearing for the husband, very laboriously tried to impress upon us that we should take a humane approach and resolve the controversy in light of the fact that his client is a happily married man and from the second marriage two children are also born. According to Mr. Prajapati, if we set aside the decree passed in favour of his client, then it will result in lot of hardship and difficulties not only to the husband, but to the second wife as well as the two children. Mr. Prajapati made all endeavours to convince us that in the light of the fact that the husband has remarried, this appeal should fail. We are not at all impressed by such submission of Mr. Prajapati that to save the second marriage of the husband, we should not interfere with the decree for divorce, and an innocent wife should not be penalised for no fault on her part, at the cost of the misdeed of the husband. We are not at all impressed by such submission of Mr. Prajapati that to save the second marriage of the husband, we should not interfere with the decree for divorce, and an innocent wife should not be penalised for no fault on her part, at the cost of the misdeed of the husband. In our view, only because the second marriage had taken place, the husband is not entitled to a decree for divorce. He cannot be allowed to take advantage of his own wrong. It is well settled that what cannot be granted directly cannot be achieved indirectly, as held by the Supreme Court in the case of Tejinder Kaur Vs. Gurmit Singh, AIR 1988 SC 839 and Lata d/o Shrikrishna Kamat Vs. Vilas Bhalchandra Udhoji ( AIR 1989 SC 1477 ). 24. We also do not approve the approach adopted by the learned trial Judge of the Family Court. The learned trial Judge completely misdirected itself by concentrating more on the fact that the case was one of a irretrievable breakdown of marriage, rather than appreciating the evidence on record, so as to come to the right conclusion as to whether the husband had been able to establish any case for a decree of divorce. As discussed earlier, from the oral evidence on record we do not find any cogent or convincing material on the basis of which the trial Court could have reached to the conclusion that the wife had deserted the husband and thereby was guilty of causing mental cruelty. It is now well settled that irretrievable breakdown of marriage in any circumstance cannot be made a ground of divorce. 25. We shall now deal with the two decisions of the Supreme Court, on which strong reliance has been placed by Mr. Prajapati, in support of his submissions. 25.1 In Rishikesh Sharma Vs. Saroj Sharma, reported in (2007) 2 SCC 263 , the appellant before the Supreme Court was the husband. Due to maladjustment in the marital life, the parties before the Supreme Court started living separately. The husband filed a petition for decree of dissolution of marriage on the ground of mental cruelty and desertion. The District Judge dismissed the petition filed by the husband for dissolution of the marriage. The husband thereafter, filed a First Appeal in the High Court. The High Court also dismissed the appeal of the appellant. The husband filed a petition for decree of dissolution of marriage on the ground of mental cruelty and desertion. The District Judge dismissed the petition filed by the husband for dissolution of the marriage. The husband thereafter, filed a First Appeal in the High Court. The High Court also dismissed the appeal of the appellant. Taking into consideration the peculiar facts of the case, more particularly that the parties had crossed 49 years and were living separately and working independently since 1981, the Supreme Court took the view that it was a case of irretrievable breakdown of marriage with no possibility of the parties living together again. The Supreme Court also took into consideration that there was a history of litigation with the wife repeatedly filing criminal cases against the husband, which could not be substantiated before the Court of law. The only child born in the wedlock in 1975 had already been given in marriage. In such circumstances, the Supreme Court took the view that the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully for the remaining part of the life. In such circumstances, the appeal filed by the husband was allowed and the decree of dissolution of marriage was passed by the Court in his favour. In our opinion, this judgment which has been relied upon by Mr. Prajapati would not help his client in any manner as it appears that the order passed by the Supreme Court was in exercise of powers under Section 142 of the Constitution of India. Besides the above, in the said case, there were no allegations of the husband living an adulterous life and thereby taking advantage of his own wrong. 25.2 In Sujata Uday Patil Vs. Uday Madhukar Patil (2006) 13 SCC 272 , the Supreme Court took the view that matrimonial disputes had to be decided by the Courts in a pragmatic manner keeping in view the ground realities. The Court should bear in mind a host of factors and the most important being whether the marriage could be saved and the husband and wife could live happily and maintain a proper atmosphere at home for the upbringing of their off-springs. The Court should bear in mind a host of factors and the most important being whether the marriage could be saved and the husband and wife could live happily and maintain a proper atmosphere at home for the upbringing of their off-springs. In the said case, the husband had remarried and had a child from the second wife. When the husband entered into the second wedlock, the period of limitation for filing appeal against the decree granted by the District Judge had expired and no order staying the decree had been obtained by the wife. In such circumstances, the Supreme Court took the view that even if the decree for divorce granted by the District Judge which had been affirmed by the High Court was set aside, no useful purpose would be served. The wife could not possibly live with the husband in such a scenario, nor in the opinion of the Supreme Court it would have been conducive to the upbringing of her son. In such circumstances, the Supreme Court affirmed the decree of divorce passed by the District Court. In our opinion, even this decision would not help Mr. Prajapati's client in any manner, as in the present case not only that the husband contracted second marriage while the stay was in operation and the appeal filed by the wife was pending, but much before the decree for dissolution of marriage came to be passed, he was living an adulterous life which has not been disputed in the present case. Thus, both the decisions which have been relied upon would not save the situation for the respondent husband in the present case. 26. In the overall view of the matter, we hold that the equities claimed by the husband should fail and the law should prevail. We are left with no other option but to set aside the decree of divorce passed by the Court below. 27. In the result, the appeal is allowed. The judgment and decree passed by the Family Court No.2, Ahmedabad, dated 1st May, 2004 in Family Suit No. 1511 of 2000 is hereby set aside. The Suit of the plaintiff-husband is hereby dismissed. 27. In the result, the appeal is allowed. The judgment and decree passed by the Family Court No.2, Ahmedabad, dated 1st May, 2004 in Family Suit No. 1511 of 2000 is hereby set aside. The Suit of the plaintiff-husband is hereby dismissed. FURTHER ORDER: After this order is passed, our attention has been drawn to the fact that pursuant to the decree for divorce and permanent alimony passed by the learned Family Court, the husband has deposited the sum of Rs.30,000/-in the Family Court, whereas the husband has failed to comply with the order of interim alimony passed in this Appeal. In such circumstances, we direct the Family Court to calculate the amount which is payable to the wife by virtue of the interim order passed by this Court and to adjust the same towards the sum of Rs.30,000/-deposited by the husband. Such exercise be done within a month from the date of communication of this order. Appeal allowed.