A party's failure to comply with a condition imposed by the court in a decree for restitution of conjugal rights, if intentional and amounting to 'wrong' within the meaning of Section 23(i)(a) of the Hindu Marriage Act, 1955, can disentitle that party from obtaining relief of divorce or judicial separation.

JUDGMENT :

A.P. RAVANI, J.

1. The appellant-wife has filed this appeal against the judgment and decree passed by the City Civil Court, Court No. 13, Ahmedabad, in H.M.P. No. 272 of 1979. The trial court passed the decree for judicial separation in favour of the respondent-husband. It is this judgment which is under challenge.

2. It seems that the parties to this litigation have unfortunate history as far as marital life is concerned. The appellant-wife had lost her husband in her childhood. Respondent-husband had obtained divorce in part. The marriage between the parties to this litigation took place on July 1, 1971 and they lived together till January 1974. The reasons which led them to live separate are not much material for the purpose of determining the issues involved in the case. Hence it is not necessary to go into the details of the same. Respondent-husband filed H.M.P. No. 188 of 1977 on August 8, 1977 and prayed for decree of restitution of conjugal rights. In that petition the appellant-wife appeared and right from the stage of filing of written statement, expressed her willingness to stay together with the respondent-husband. In the deposition of the respondent-husband, it is recorded that the judgment and decree passed in that petition are produced on the record. However, from the record it is clear that only the decree passed in that petition is found at Exhibit 19. By consent of the parties I have taken on record the judgment delivered in H.M.P. No. 188 of 1977 also. The trial court passed decree for restitution of conjugal rights on April 15, 1978. Thereafter it is the case of the respondent-husband that the decree for restitution of conjugal rights has not been complied with by the appellant-wife and hence he filed a petition being H.M.P. No. 272 of 1979 and prayed for decree of dissolution of marriage. The trial court after recording evidence and after hearing the parties came to the conclusion that the respondent-husband was entitled to decree as prayed for by him but the trial court thought that is was not expedient that the marriage should be dissolved immediately and hence passed a decree for judicial separation in favour of the respondent-husband and against the appellant-wife.

3. The respondent-husband had based his case on the provisions of law contained in Section 13(IA)(ii) of the Hindu Marriage Act, 1955 ("the Act", for short). That is, according to him, there was no restitution of conjugal rights between the parties for a period of one year after the passing of the decree for restitution of conjugal rights in a proceeding to which both of them were parties. The trial court held that there was no restitution of conjugal rights between the parties after the passing of the decree for restitution of conjugal rights in H.M.P. No. 188 of 1977 and the respondent-husband had succeeded in proving that there was no restitution of conjugal rights between the parties for a period of one year or more after the passing of the aforesaid decree.

4. It may be noted that both, the appellant-wife and the respondent-husband, in this case are educated. Both of them are serving as teachers. The appellant-wife is serving as a teacher in a Primary School at Ahmedabad while the respondent-husband is serving as a teacher in a Primary School at Viramgham. In view of the facts and circumstances of the case in H.M.Y. No. 188 of 1977, the trial court observed as follows in paragraph 7 of its judgment:

"It appears that though the parties have led evidence on the issues in question since the opponent has admitted a particular position, I had tried to assess the willingness of the parties for cohabitation through their advocates apart from the merits of the present case and I am given to understand that both the parties sincerely desire to have a happy marital life. In the circumstances of the case, it may be stated that though the parties have led evidence, it would not be proper and desirable to have any finding on the issues raised e