C.T. Ravikumar, J.

The petitioner-husband in O.P. No.50 of 2001 on the file of the Family Court, Kozhikode is the appellant herein. The said Original Petition was filed under S.13(1A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for divorce. The admitted facts are as follows:

The marriage between the appellant and the respondent who belong to Hindu Ezhava community was solemnised on 25.1991. After the marriage, they lived together only for a very short period of two and a half months. A male child was born in the wedlock and he is residing with the respondent.

2. With respect to what had happened subsequent to the said period of two and a half months, there are conflicting versions by the appellant and the respondent. According to the appellant, he left Gulf after the said period and there after, the respondent was taken to her house for delivery in December 1991. When he returned from Gulf in December 1994, the parents of the respondent did riot permit her to stay with him. In the year 1995, the respondent herein had filed O.P. No.61 of 1995 before the Family Court, Kozhikode under S.9 of the Act for restitution of conjugal rights. The said Original Petition was allowed on 17.1997 with a direction to resume cohabitation within two months from the date of the judgment. In the year 1996: the respondent filed M.C. No. 109 of 1996 seeking maintenance for the child and that was also allowed on mutual consent. Subsequent to the passing of the decree in O.P. No. 61 of 1995, the respondent - wife did not resume cohabitation despite several attempts on the part of the appellant. The respondent had no genuine intention to resume cohabitation and they are residing separately for the last 91/2 years. It was with the aforesaid allegations that the appellant herein filed O.P. No.50 of 2001 for dissolution of their marriage by a decree of divorce.

3. The respondent contested the matter contending that it was the appellant who stood against the resumption of cohabitation pursuant to the decree in O.P. No.61 of 1995. In the counter affidavit, she had specifically expressed her willingness to live with the appellant-petitioner. She had also stated therein that after the appellant left for Gulf, she was subjected to mental torture by his parents during her stay at his house. Considering the aforesaid conflicting versions, the Family Court formulated the point as to whether the petitioner is entitled to get a decree of divorce for consideration.

4. The evidence in this case consists of the oral testimonies of PW.1 and R.W.1. Exts.A1 to A4 were marked on the side of the petitioner. The Family Court considered the entitlement of the appellant herein to get a decree of divorce under S.13(1A)(ii) of the Act in the light of S.23(1)(a) of the Act. In order to appreciate the contentions, it is necessary and profitable to refer to the aforesaid provisions of the Act and they read as follows:

"13(1A). Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground —

(i) xxx xxx xxx

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties."

"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-cl.(a), sub-cl.(b) or sub-cl.(c) of cl.(ii) of S.5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief."

5. Evidently, the Original Petition was filed after the stipulated period under S.13(1 A)(ii) of the Act. To sustain the ground for dissolution