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). 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 especially as it is seen that there is a real desire on both the sides to have a complete re-union......" Before passing the final order the trial court observed in paragraph 10 of the judgment as follows : "I have heard the learned advocates of both the sides. At present the applicant is serving at Bhojva near Viramgam and in the circumstances, though it is not desirable to bind down the parties to any particular situation, it appears that the applicant and the opponent can stay happily if a house rented somewhere at Sanand so that it would also he convenient. For the opponent to come to Ahmedabad service and for the applicant to go to Bhojva near Viramgar. They can, however choose to have any other place of their convenience by mutual understanding and goodwill and they can even stay at any place they choose during the vacation or other holidays. Since bath the spouses were educated persons and since there appears a real desire on the part of both the spouses, it is unnecessary to put any further conditions......" After observing as above, the trial court passed a decree for restitution of conjugal rights in favour of the applicant-husband by its order dated April 15, 1978. It appears that the respondent-husband had fully understood the aforesaid observations made by the trial court. He gave notice, Exh. 24, dated May 2, 1978 through his advocate to the appellant-wife and informed her that he had hired a house at village Sanand and that she was required to come and stay with him. In the notice the address of the respondent- husband was also mentioned. The notice was replied to by the appellant-wife through her advocate and that reply is at Exh. 43 dated July 6, 1978. The envelope containing reply to the said notice returned back with an endorsement to the effect that on enquiry it was found that the addressee had left the house and had gone elsewhere and that now address was not available. The respondent-husband examined himself and the landlord of the house in question to support his case that he had as a matter of fact hired a house at village Sanand where parties could live together. The trial court after taking into consideration all the facts and circumstances pertaining to this issue observed in paragraph 31 of its judgment that although the petitioner- husband made a show of hiring a premises at Sanand, in fact, he did not d hire such premises. Thereafter the trial court further observed that the petitioner-husband himself did not act towards the direction of actual restitution of conjugal rights between himself and the respondent-wife. Thereafter the trial court further observed that the petitioner-husband himself did not act towards the direction of actual restitution of conjugal rights between himself and the respondent-wife. Even after holding as aforesaid, the trial court came to the conclusion that mere disinclination on the husband's part for not complying with the decree cannot be said to be "wrong" within the meaning of Section 23(i)(a) of the Act. The trial court placed reliance on the decision of this Court in the case of Bai Rani alias Chandramanj, daughter of Patel Babarbhai Narsingbhai v. Patel Jayantibhai Dahyabhai , reported in 21 GLR 66, and on the case of Dharmendra Kumar v. Usha Kanvar reported in AIR 1977 SC 2218 . From the judgment of the Supreme Court the trial court extracted the following lines : "In order to constitute a wrong within the meaning of Section 23 (i)(a) the misconduct must be serious enough to justify denial of the relief to which the alleged wrong doer is otherwise entitled to." "It would not be reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a "wrong" within the meaning of Section 23(i)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must he misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled." Relying on the aforesaid passage from the decision of the Supreme Court which has been followed by this Court in Bai Rani's case (supra), the trial court held that the petitioner-husband had shown a disinclination to comply with the decree and that cannot come in his way of obtaining relief of divorce as prayed for by him. 5. While determining this issue, the trial court failed to take into consideration one important aspect, namely, that while the decree for restitution of conjugal rights was passed in H.M.P. No. 188 of 1977, the trial court had also observed to the effect that the applicant and opponent-wife should hire a house somewhere at Sanand so that it would also be convenient for both the spouses to go to Ahmedabad and Bhojva near Viramgham for service. In the facts and circumstances of the case the court thought that either at Sanand or at some other convenient place which may be agreed upon by both the spouses, a house should be rented. This was the condition put by the trial court when the decree for restitution of conjugal rights was passed in H.M.P. No. 188 of 1977. This condition was required to be fulfilled by the petitioner-husband. Therefore in the instant case it is not only the case of the petitioner-husband's disinclination but also there is a positive failure to do something which he was required to do under the judgment and decree passed in his favour granting restitution of conjugal rights. Therefore the questions arise, has he complied with the condition imposed upon him by the court ? It not, is the failure intentional ? And if the failure is intentional, still would he be entitled to claim for relief of divorce as prayed for by him ? 6. In the above quoted decisions of the Supreme Court and this High Court, the situations were quite different. The principle laid down therein is that a party cannot be denied to take the advantage of the statutory right to obtain dissolution of marriage which is conferred on him by Section 130 (A) of the Act. The Supreme Court clearly observed that, in order to be a wrong within the meaning of Section 23(i)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be a misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to. In the instant case the evidence and other circumstances clearly disclose the following points : (1) That there was a positive obligation cast upon the petitioner-husband in the judgment delivered by the trial court in H. M. P.-No. 188 of 1977 and that he was required to hire a house either at Sanand or at some other place convenient to both the parties; (2) The trial court came to the conclusion that the petitioner-husband made a show of hiring a premise at Sanand and he in fact did not hire such a premise (paragraph 30 of the judgment); (3) The endorsement on the envelope, Exh 45, in which the reply to the notice was sent by the appellant-wife clearly shows that the petitioner-husband had left the house even before the reply to the notice could be sent and he had not left his address also; and (4) There is nothing on record to show that thereafter the petitioner-husband ever tried to give his correct address or hire a suitable accommodation either at Sanand or at some other place convenient to both the parties. From the aforesaid facts and circumstances of the case, it can safely be inferred that the conduct of the petitioner-husband is such that it is something more than a mere disinclination to comply with the decree passed in H.M.P. No. 188 of 1977. He has failed to fulfil the obligation cast upon him in the said judgment. Not only that he has even tried to create evidence in this connection which has been disbelieved by the trial court and in my opinion rightly. Thus he is a person who has not only failed to fulfil the obligation cast upon him by the court's order but he has also come forward with a case which could not be sustained. Under the judgment and decree, unless he fulfils the obligation, he could not have asked for the restitution of conjugal rights from the appellant-wife. Thus this failure on his part is something more than mere disinclination and in the facts and circumstances of the case, this failure alone should have been considered enough for not granting him the prayer of divorce and/or that of judicial separation. Thus this failure on his part is something more than mere disinclination and in the facts and circumstances of the case, this failure alone should have been considered enough for not granting him the prayer of divorce and/or that of judicial separation. In the peculiar facts and circumstances of the case, this failure is tantamount to 'wrong' within the meaning of' the provisions of Section 23(i)(a) of Act and hence the petitioner-husband is not entitled to the relief prayed for by him. 7. The case of the appellant-wife was that after the decree for restitution of conjugal rights was passed, on two to three occasions both husband and wife met together and there was conjugation of marriage. The appellant-wife in her deposition stated that on July 15, 1978 she and the respondent husband had gone to the house of one Babulal alias Bhanu- prasad Karsanlal Shrimali. In this connection the version of the respondent-husband is that, no such meeting whatsoever has taken place at the house of Babulal and the trial court did not believe the version of the appellant- wife on the ground that Babulal was not examined and no sufficient details were given in her statement in this connection. The second incident stated by the appellant-wife relates to their meeting at the house of one Rameshbhai Sankarbhai Parmar situated in Kanji Master's Chawl at Khanpur, Ahmedabad. The incident narrated by the appellant-wife is fully corroborated by Rameshbhai who has been examined at Exhibit 51. The evidence of Rameshbhai has been disbelieved by the trial court on the ground that the appellant-wife and the wife of Rameshbhai were friends and that there were some minor contradictions between the version given by the appellant- wife and that of Rameshbhai. The trial court also observed that it had come in evidence that the appellant-wife was maintaining a diary in which she used to note down day-to-day events and since that diary was not produced, the trial court thought that the best documentary evidence was kept back and hence did not believe the version given by the appellant wife. In this connection the trial court ought to have believed the explanation given by the appellant-wife that the diary was not available at the moment and therefore it could not be produced. There was no reason for the trial court not to believe this explanation given by the appellant-wife. In this connection the trial court ought to have believed the explanation given by the appellant-wife that the diary was not available at the moment and therefore it could not be produced. There was no reason for the trial court not to believe this explanation given by the appellant-wife. The trial court has in this connection observed as follows : " ...Although, it is probable that the petitioner might have had an occasion of going to Rameshbhai's house for the purpose of making an inquiry about his own sister's affairs with her husband and on such occasions probably the petitioner and the respondent might have had a meeting at the Rameshbhai's place. It is difficult to believe the respondent that she had a sexual intercourse with the petitioner on that occasion." In paragraph 38 of the judgment, the trial court has further observed as follows : "......The evidence merely consists of casual meetings between the petitioner and the respondent. Living together as husband and wife is quite different from two litigating spouses having had a few meeting for the purpose of reconciliation and even if the evidence adduced on behalf of the respondent is believed, it cannot be found that there had been restitution of conjugal right between the petitioner and the respondent after the passing of the decree for restitution of conjugal rights in favour of the petitioner against the respondent." The trial court further observed that casual stay of the two spouses at some place for the purpose of reconciliation would not amount to living together and would also not amount to actual restitution of conjugal rights between the husband and the wife. 8. With respect to the learned City Civil, Judge, it is difficult to follow the reasoning adopted by him. In the instant case, right from the beginning, it is the case of the appellant-wife and it is clearly stated in paragraph 9 of the written statement, that both of them did meet at the place of Babulal and they often met at the place of Rameshbhai, Exh. 51. In this case Rameshbhai has been examined and the story narrated by the appellant-wife in her deposition as well as in her written statement has been supported by the evidence of Rameshbhai, Exh. 51. 51. In this case Rameshbhai has been examined and the story narrated by the appellant-wife in her deposition as well as in her written statement has been supported by the evidence of Rameshbhai, Exh. 51. In spite of this evidence and in spite of the fact that the trial court believed that there may be meeting of both the spouses on two to three occasions, in this opinion, it cannot be said to be living together and cannot be said that there was restitution of conjugal rights between the husband and wife. Reasoning given by the learned trial judge is that the conjugation in the forth of sexual relations is quite different from the casual stay and even if there is sexual relations between the spouses on such casual stay, it does not amount to restitution of matrimonial home. It is difficult to accept this reasoning. In the instant case there is clear evidence of the appellant-wife that on each occasion when she met the respondent- husband, she requested him to take her with him. It is established by the evidence of the appellant-wife which is supported by the evidence of Rameshbhai that the appellant-wife and the respondent- husband lived together and had even sexual relations Simply because such type of meetings turned out to be casual, it cannot be said that there was no restitution of conjugal rights. It is unfortunate that despite such frequent attempts the matrimonial home could not be restored but from that fact, it cannot be said that there was no restitution of conjugal rights. Therefore on this point also the trial court has gone wrong and the finding arrived at by the trial court on this point also requires to be reversed and set aside. 9. In view of the foregoing reasons, it is held that there has been restitution of conjugal rights between the parties to the application during the period of one year after the passing of the decree for restitution of conjugal rights in H.M.P. No. 188 of 1977, i.e., within a period of one year from April 15, 1977. 9. In view of the foregoing reasons, it is held that there has been restitution of conjugal rights between the parties to the application during the period of one year after the passing of the decree for restitution of conjugal rights in H.M.P. No. 188 of 1977, i.e., within a period of one year from April 15, 1977. In above view of the matter the judgment and decree passed by the trial court requires to be reversed and set aside and the decree for judicial separation granted by the trial court in favour of the respondent-husband is set aside and H.M.Y. No. 272 of 1979 of the City Civil Court, Court No. 13, Ahmedabad, is ordered to be dismissed. In the result this appeal is allowed. In the peculiar facts and circumstances of the case, there shall be no order as to costs. Appeal allowed.