K.S. Venkataraman, J.
1. This appeal arises out of the petition (O.P. No. 112 of 1964) filed by the appellant in the Court of the Subordinate Judge of Chingleput, under Section 13 (1) (viii) of the Hindu Marriage Act, 1955, as it stood then, for a decree of divorce. Previously on 30th March, 1962 the Subordinate Judge's Court had passed an order in favour of the husband granting judicial separation on the ground of adultery of the wife. The husband alleged that for the space of two years or upwards after the passing of that decree they had not resumed cohabitation. Section 13 (1) (viii) of the Act as it stood enabled him to obtain a decree for divorce on that ground.
2. The wife resisted the petition on the ground that the previous order of 30th March, 1962 was not passed after due enquiry and was practically an order of consent and that it was consequently void (according to her) and should not be made the foundation of a decree : for divorce.
3. The learned Subordinate Judge who tried the petition held that the order passed by the previous Subordinate Judge granting judicial separation was a proper order and was not a nullity and in that view he granted a decree for divorce.
4. The wife preferred an appeal. The learned District Judge took the view that there was no enquiry by the learned Subordinate Judge on the prior occasion and that consequently that decree for judicial separation was a nullity and should not be made the foundation for a decree for divorce. He thought, under the circumstances, that the petition of the husband for divorce had to be dismissed without further more. Hence this further appeal,
5. Before proceeding further it is necessary to narrate the circumstances under which the prior order of 30th March, 1962 in O.P.No. 47 of 1960 came to be passed. The parties had been married in 1946, being previously cousins. A daughter was born to them. The husband's work took him away for camp, but he happened to return earlier than originally planned. That was on the night of 10th April, 1959 about 10 P.M. To his shock and shame, he found his wife in the act of sexual union with the servant, George. It was on that ground that the husband filed the prior petition praying for divorce or at least for judicial, separation. The wife resisted it. She denied the allegation. At the enquiry on 23rd March, 1962 the husband started his evidence and deposed as follows:
George was aged about seventeen years. My wife's aged aunt was in the house. She was aged eighty years.
At that stage the wife through her Counsel filed an affidavit to the following effect:
The respondent docs not want an investigation by the Court of the allegations made in the petition against the respondent. As it will not be possible hereafter for her and the petitioner to live together, there may be a decree for judicial separation. The question of custody of the minor daughter, whether it should be with her or with petitioner may be left open to be decided in separate proceedings.
The enquiry was stopped and the learned Subordinate Judge passed the following Order:
Petitioner agrees for judicial separation and both agree to have the question of custody of child left open for separate proceedings.'
' It is clear that parties cannot get on together hereafter. If the case goes on and divorce is granted it will permanently separate them. If judicial separation alone is passed, there is a chance of their getting together and the child will have the benefit of living with both parents. There are enough allegations to pass a decree for judicial separation. This is seen from both the petition and the reply statement. In the circumstances of this case, no further evidence is necessary. I find that there are enough grounds to pass a decree for judicial separation and a decree is accordingly passed.
6. The point made by the learned District Judge in the order under appeal is that under Section 23 of the Act, before the Court could grant the relief of judicial separation, it should be satisfied that grounds for granting the relief existed, that the husband-petitioner was not in any way taking advantage of his own wrong and was not colluding with the wife and had not condoned the act complained of and that there was no unnecessary delay. The learned District Judge points out that the mere fact that the wife did not want any further enquiry was not sufficient to afford satisfaction to the Court and that it was the duty of the Court to have made an independent enquiry to satisfy itself about the existence of the grounds for judicial separation. The learned District Judge thinks that there was no such independent enquiry and that consequently the decree for judicial separation was void. The learned District Judge quotes passages from the well-known work of Rayden on Divorce and also from Mulla's Hindu Law and Raghavachari's Hindu Law.
7. Now it is true that in view of Section 23 of the Act a decree for divorce or judicial separation should not belightly granted because it is a matter concerning the public also in the last resort. But this only means that the succeeding Judge before whom the petition for divorce comes up is entitled to demand that proof should be offered to his satisfaction of the adultery which was the ground for the decree for judicial separation, particularly in a case like the present where in the prior petition the contest was given up at the time of the trial. But this docs not mean that the petition for divorce should be dismissed without further more. What the succeeding Judge should do in such a case is to allow the husband an opportunity to prove the allegation of adultery on which judicial separation was prayed for and obtained and, of course, the wife would be entitled to defend herself in such an enquiry. The previous decree for judicial separation can on no account be considered a nullity. The Subordinate Judge who made that order had jurisdiction to enquire into the petition for judicial separation and to pass an order for judicial separation. It must be presumed that he was satisfied that an order for judicial separation could be made. Till that order was set aside, in appeal, it could not be considered as of no effect. The only consequence of Section 23 of the Act and the fact that now the Court is asked to put an end once for all to the matrimonial tie is that the Judge in the later petition for divorce can insist on proof to his satisfaction of the ground of adultery. But, if such proof is forthcoming, it will mean that in his opinion the original decree for judicial separation was also justified and could, therefore, be made the basis for the decree for divorce, I shall now refer to some of the numerous cases which have been cited before me. I may state at once that there seems to be no decided case directly in point covering the facts similar to the present case. But it seems to me that what I have stated above is what emerges as the correct course to be adopted as a result of the principles laid down in the decided cases. It need hardly be stated that there is nothing in the decided cases to invalidate the course which I have indicated.
8. It is enough to start with the statement of the law in Thompson v. Thompson (1957) 2 W.L.R. 138 : (1957) P. 19 : (1957) 1 All E.R. 161. There the wife had previously failed to obtain maintenance and in a later petition for divorce brought by the husband the question was whether she could once again traverse the same ground which she had unsuccessfully adduced before. Denning L.J. observed:
There is no doubt, to my mind, that if the doctrine of res judicata applies in its full force to the Divorce Division of the High Court, the wife is so estopped. The issue of cruelty has already been the subject of litigation by a Court of competent jurisdiction, to wit, the Court which tried the wife's claim for maintenance and the Court would not, according to the ordinary principles, permit her to open the same subject of litigation again : see Hoystead v. Commissioner of Taxation L.R. (1926) A.C. 155 : 42 T.L.R. 207. The question in this case is, however, whether those ordinary principles do apply to the Divorce Division. The answer is, I think, that they do apply, but subject to the important qualification that it is the statutory duty of the divorce Court to inquire into the truth of a petition and of any countercharge--which is properly before it, and no doctrine of estoppel by res judicata can abrogate that duty of the Court. The situation has been neatly summarised by saying that in the divorce Court estoppels bind the parties but do not bind the ' Court' : but this is perhaps a little too abbreviated. The full proposition is that, once an issue of a matrimonial offence has been litigated between the parties and decided by a competent Court, neither party can claim as of right to reopen the issue and litigate it all over again if the other party objects (that is what is meant, by saying that estoppels bind the parties) : but the divorce Court has the right, and indeed the duty in a proper case, to reopen the issue, or to allow either party to reopen it, despite the objection of the other party (that is what is meant by saying that estoppels do not bind the Court). Whether the divorce Court should reopen the issue depends on the circumstances. If the Court is satisfied that there has already been a full and proper inquiry in the previous litigation, it will often hold that it is not necessary to hold another inquiry all over again; but if the Court is not so satisfied, it has a right and a duty to inquire into it afresh. If the Court does decide to reopen the matter, then there is no longer any estoppel on either party. Each can go into the matter afresh.
9. The learned Judge then observes:
The cases fall into three categories. The first category consists of those cases where a charge of a matrimonial offence has been established in previous proceedings. One party has been found guilty. In such a case, as between the parties, the strict rules of res judicata would seem to apply : but the divorce Court, being bound by no estoppels, often allows a departure from them. The best illustration is where a party has obtained a decree of judicial separation on the ground of cruelty and follows it up with a petition for divorce on the same ground. In the subsequent divorce proceedings the Court may treat the prior decree as sufficient proof of the cruelty; but it is not bound to do so. The Court can, if it thinks fit, inquire into charge of cruelty all over again. It will admit the prior decision as evidence of the cruelty, but not as conclusive.
This passage applies to the present case. The observations made by Hodson, L.J., and Morrie, L.J., may, for our purposes, be considered to be similar.
10. The above decision was followed in Warren v. Warren (1962) 1 W.L.R. 1310 : (1962)3 All E.R. 1031, and also in Thody v. Thody (1964) P. 181 : (1964) 1 All E.R.341 : (1964)2 W.L.R. 371,
11. The matter is also discussed in Rayden on Divorce (Tenth edition, 1967) in Chapter Five, paragraphs 29 (Estoppel : cause of action estoppel : issue estoppel), 30 (Res judicata), and 31 (No estoppel binds the Court.)
12. As a result of the application of the above principles to this case, it must be held that no objection can be taken to the learned District Judge requiring to be satisfied himself about the truth of the allegation of adultery which was the basis for the decree for judicial separation, but he could not straightaway dismiss the petition on the ground that the previous order for judicial separation was a nullity.
13. Under the circumstances I set aside the order of the learned District Judge dismissing the petition of the husband, and remand the appeal to him for fresh disposal according to law and in the light of the observations contained in this judgment. It is open to the learned District Judge to make such enquiry as to satisfy himself that the adultery was true and that the original order for, judicial separation was rightly passed. The husband must be given an opportunity to prove the allegation and the wife must similarly be given an opportunity to defend herself. The parties will bear their own costs in this appeal. Leave granted.