The inaction of a party in not enforcing a decree for restitution of conjugal rights does not amount to a 'wrong' within the meaning of S.23 (1) (a) of the Hindu Marriage Act, and therefore, does not disentitle the party from obtaining a decree for divorce under S.13 (1A) (ii) of the Act.

1. The above M.F.A. is directed against the order passed by the District Court, Trivandrum in O.P. (H. M. A.) No. 63 of 1983, an application filed by the appellant herein under S.13 (1A) (ii) of the Hindu Marriage Act, 1955, (hereinafter referred to as 'the Act'). By order dated 16th August, 1982, the learned District Judge dismissed the application. The appellant-husband challenges the said order in this M. F. A.

2. A. S. No. 265 of 1986 is filed by the appellant (husband) against the judgment and decree of the Court of Subordinate Judge, Trivandrum in O.S. No. 5S2 of 1983, in so far as it related to maintenance awarded by the lower court to the respondent at the rate of Rs. 250/- per mensem. The appellant has not challenged the order of maintenance awarded to the children, the plaintiffs 2 and 3 in the suit at the rate of Rs. 250/- each per mensem

3. The parties are Hindus belonging to Nair community whose marriage was solemnised on 19-5-1967 in accordance with the customary rites and ceremonies applicable to their community, After the marriage the parties lived as husband and wife in the ancestral houses of the petitioner and the respondent alternatively and also at plot no. 11 in Padma Nagar within Trivandrum City. In 1977 the appellant and the respondent shifted to a house referred to as 'Binushma', which was purchased for their use and occupation. Two children, a boy and a girl were born out of their wedlock. The appellant was an Assistant Surgeon at the General Hospital, Trivandrum till he was relieved on 18-5-1978 on his transfer as the Medical Officer, Employees State Insurance Dispensary, Chathannoor, Quilon District. On 29-5-1979 the appellant entered on leave for a period of 120 days. According to him he did so with a view to make arrangements for the shifting of his family establishment from Trivandrum to Quilon and for putting the children at proper schools at Quilon. He further alleged that while the appellant was making such arrangements for shifting the family to Quilon, the respondent openly declared that she would not move out of Trivandrum. He also alleged that early in June, 1979 the respondent shifted her residence to plot No. 11, Padma Nagar in Trivandrum City. His further case is that the respondent refused to cohabit with the appellant in spite of the repeated requests for that purpose and therefore he was compelled to file O. P. (H. M A.) No. 278/1979 for restitution of conjugal rights. As per order dated 18-4-1980 the learned 1st Addl. District Judge allowed the O. P. and a decree was passed directing the respondent to cohabit with the appellant. On 19-7-1980 the appellant caused a notice to be served on the respondent reminding her of her obligation to resume cohabitation with him in terms of the decree passed in O. P. (H.M.A) 278/1979. The notice was served on the respondent but the respondent caused to sent a reply notice on 2-8-1980 refusing to resume cohabitation with the appellant. It was averred that in the circumstances he was entitled to get a decree for divorce under S.13(lA)(ii) of the Act.

4. The respondent resisted the petition and contended that while the appellant was working as a doctor at the Karamana Govt. Dispensary he was placed under suspension on 24-4-1980 and later was reinstated and was transferred to Chathannoor as Insurance Medical officer and that though the appellant took charge as doctor at Chathannoor he had no intention to live at Chathannoor or to continue in his job at Chathannoor. or at any other place except Trivandrum city, and it was under those circumstances that the appellant entered on leave. According to the respondent the appellant did not resume duty either at Chathannoor or at Thannithode but continued to reside at Binushma in Trivandrum City. The respondent also averred that the appellant had at no time any intention to shift his family to Quilon or to any other place, nor had he made any attempt to put the children at any of the schools at Quilon