ORDER 1. This appeal under section 28 of the Hindu Marriage Act, 1955 is by the husband against the decree, dated, 5-3-1964, passed by Shri J.N. Bajpai Second Additional District Judge, Dhar, in Civil Suit No. 11-A of 1962, refusing the appellant relief of judicial separation from the wife. 2. The parties were married some time in the year 1938. They lived together peacefully till 1946. They have also a son by name, Badri, who at the time of the suit was aged about 18 years. The respondent left her husband's house in the year 1946 and instituted proceedings under section 488, Criminal P.C. for maintenance in the year 1948. The Criminal Court fixed a maintenance allowance payable to her at the rate of Rs. 13 per month. As the same was not paid by the appellant, the respondent had to institute proceedings for recovering the same. During the pendency of those proceedings, the appellant filed Civil Suit No. 63 of 1949 for restitution on conjugal rights which was however, dismissed by the Munsif, Dhar on 28-7-1951. The appellant in the year 1954 married a second time; and since then he is living with the second wife. The present proceedings for judicial separation were instituted on 6-8-1962. 3. In this suit, the appellant wanted either judicial separation or in the alternative a divorce on the ground that the respondent had deserted him. It is alleged that she is hot tempered; and due to that, she left the husband's house to stay with her father where she sits at the shop of the father for carrying on business. 4. The respondent denied the plaintiff's allegations and alleged ill-treatment and beating. According to her, she had not deserted her husband, but he was refusing to allow her to stay with him. As the appellant avoided his responsibility for maintaining her, she had to institute proceedings for getting maintenance allowance. It was also alleged that the findings in the previous suit for restitution of conjugal rights would operate as res judicata. In her special pleading, she alleged that the present suit had been filed mala fide in order to nullify the effect of the order of maintenance and that the suit itself is belated. She also made an offer that if the appellant agreed to keep her in another house along with the children, she was willing to stay with him. In her special pleading, she alleged that the present suit had been filed mala fide in order to nullify the effect of the order of maintenance and that the suit itself is belated. She also made an offer that if the appellant agreed to keep her in another house along with the children, she was willing to stay with him. But she was not prepared to stay in the same house as her co-wife. 5. The learned Judge of the trial Court found that the respondent had not deserted the appellant. In that view, it was held that the husband was not entitled to seek judicial separation. Further it was held that the allegations relating to cruelty on the part of the husband were not material for the purposes of the present suit. As the suit was belated, it was liable to be dismissed on that ground also. As regards resjudicata and estoppel arising on account of the previous decisions and the conduct of the appellant, those issues were not pressed; and, therefore, they remained undecided. In conclusion the trial Judge dismissed the appellant's petition for judicial separation. 6. As regards the two issues on which the decision of this case turned in the trial Court, there could be no doubt that the petition for judicial separation was belated almost by six or seven years. The appellant having waited for some time and having made attempt to secure the respondent's presence in his house, ultimately married a second time in the year 1954. The second marriage by itself would provide a justification for the wife to stay away from the husband. Before the Hindu Marriage Act, 1955 came into force, the parties were busy with litigating proceedings for maintenance in a criminal Court and for restitution of conjugal rights in a civil Court. Even those proceedings had terminated in the year 1951. Thereafter the appellant kept silence till the middle of the year 1962; and now he has come forward with a request for judicial separation. There can be no doubt that the petition for judicial separation is belated and the same appears to be a counter move on the part of the appellant to off set the order for maintenance and the failure to secure restitution of conjugal rights. As such, the present suit clearly appears to have been instituted for an ulterior purpose. 7. There can be no doubt that the petition for judicial separation is belated and the same appears to be a counter move on the part of the appellant to off set the order for maintenance and the failure to secure restitution of conjugal rights. As such, the present suit clearly appears to have been instituted for an ulterior purpose. 7. As regards the other ground whether the respondent deserted the appellant voluntarily, it is to be noted that the evidence on record clearly indicates that the respondent did not voluntarily desert the appellant; but on the other hand, it was the appellant who drove out the respondent. The trial Judge was right in holding that there was no substance in the husband’s allegation that the wife had taken away ornaments and she was asked to return back to the husband's house along with the ornaments. We do not feel that the trial Judge was in error in refusing to rely on the appellant's own testimony as P.W. 1 and the testimony of the other two witnesses namely, Bherulal (P.W. 2) and Dhannalal (P.W. 3). It is significant to note that although the name of the appellant's mother was involved in this affair, she was not examined as a witness. On the other hand, Bherulal (P.W. 2) candidly admitted that about six months after the death of the wife of the respondent's brother when Radhakishan, uncle of the appellant took the respondent to the house of the appellant, the husband refused to take her in. This will clearly show that it was the appellant, who was reluctant to allow the wife to stay with him. Thus the appellant's own evidence clearly negatives the case of desertion on the part of the wife. 8. However, during arguments, the learned counsel for the appellant urged that in view of the offer made by the wife in the trial Court, the appellant would now make an offer agreeing to keep the wife with him. Therefore, in that behalf an application, dated, 18-10-1965 registered as I.A. No. 1183 of 1965 has been filed. The offer now is that the appellant is prepared to keep his wife in the first floor of the same house separately and independently of the second wife. Therefore, in that behalf an application, dated, 18-10-1965 registered as I.A. No. 1183 of 1965 has been filed. The offer now is that the appellant is prepared to keep his wife in the first floor of the same house separately and independently of the second wife. In reply to this application, the respondent's stand is that she is not prepared to stay in the same building, which might give rise to quarrels between the co-wives. However, it is stated that if the appellant makes arrangement for the respondent's stay in an independent house, she would 'be ready to live as the appellant's wife. In view of the strained relations between the parties and specially the conduct of the appellant uptil now, we do not think that we should allow the appellant to exercise that option. Moreover, there is no agreement between the parties about the residence to be provided to the wife. There is no doubt that if the two wives stay in the same building, although in separate apartments there are likely to be disputes resulting in illwill, rancour and further straining of relations. We do not see any chance of the parties coming to some amicable solution on account of this offer. Had we been convinced about that probability, we might have given them a chance to make their differences and live in peace. 9. However, the conduct of the appellant does not entitle him to judicial separation. We do not propose to decide whether the respondent is entitled to judicial separation as that matter is left 'open by the trial Judge. Under the circumstances, we would affirm the decree of the trial Judge and dismiss this appeal with costs. Counsel's fee Rs. 50, if certified. The respondent shall be entitled to her costs of the trial Court.