JUDGMENT S.K. Dubey, J. -- 1. The appellant-wife has preferred this appeal under S. 28 of the Hindu Marriage Act, 1955 (for short 'the Act') against judgment and decree dated 12.5.89 passed under S. 13, for judicial separation. 2. The facts leading to this appeal are that the appellant-wife and the respondent-husband were married on 23.5.1981 according to Hindu rites. The respondent-husband instituted a petition under S. 11, 12 and 13 of the Act for declaring marriage void, as at the time of marriage, the respondent was a minor, the marriage was solemnized in contravention of S. 5(iii) of the Act, and a decree of nullity of marriage was prayed under S. 12(1)(d) of the Act, a decree for divorce was also prayed under S. 13(1), (i)(ia) and (ib) of the Act. 3. The appellant-wife denied the allegations and contended that the respondent-husband and his family members were not allowing her to live in her matrimonial home, because her father, who is a poor teacher, could not fulfil the demand of dowry. The allegation of cruelty was denied, and it was contended that the appellant-husband always avoided her to take her in her matrimonial home. 4. The trial Court, after recording the evidence, dismissed the petition of the respondent under Ss. 11, 12 of the Act and instead of granting a decree for divorce, granted a decree for judicial separation under S. 10 of the Act, observing that both the parties belong to a respectable family, but because of some misunderstanding, they are passing their life by living separately since last five years, in the circumstances the possibility of restitution of marriage relations between them, cannot be ruled out. 5. The appellant-wife aggrieved by the decree has preferred this appeal. The respondent-husband did not prefer any appeal/but preferred cross-objections against dismissal of his petition under Ss. 11, 12 and 13(1) (i)(ia) of the Act for not granting a decree of divorce. 6. Shri R.A. Roman, learned counsel for the appellant and Shri R.K. Shinde, learned counsel for the respondent were heard and record of the case perused. After hearing learned counsel, I am of the opinion that the decree passed by the trial Court for judicial separation on the ground under S. 13(1)(i)(ib) of the Act cannot be sustained for the reasons hereinafter to follow. 7. Learned counsel for the respondent did not press the ground under Ss. After hearing learned counsel, I am of the opinion that the decree passed by the trial Court for judicial separation on the ground under S. 13(1)(i)(ib) of the Act cannot be sustained for the reasons hereinafter to follow. 7. Learned counsel for the respondent did not press the ground under Ss. 11 and 12 of the Act. Placing reliance on the provisions of order 41, rule 22 CPC he, not only supported the decree, but also criticised the findings recorded on the grounds under S. 13(1)(i)(ia) of the Act and contended that non-access of the respondent is proved by cogent and reliable evidence and that the appellant was not staying at Shivpuri and was working somewhere about 40 km. away from Shivpuri. The appellant has not produced any record to show that how she used to come from the place of her work which is far off and used to stay with her brother who was living at Shivpuri in a rented room for the purposes of pursuing of his studies. It was further contended that the story of meeting of the appellant with respondent is a concocted one. Learned counsel also pointed out that the appellant has not examined her brother to prove that the respondent used to come to meet his wife in his rented premises at Shivpuri. It was also submitted by the learned counsel that from other over-all evidence of the parties, non-access of the respondent-husband is proved by preponderance of evidence. Learned counsel pressed into service Dr. N.G. Dastane's case ( AIR 1975 SC 1534 ), Om Prakash's case (AIR 1985 Punjab & Haryana 364) and Hargovind Soni's case ( AIR 1986 MP 57 ). Placing reliance on Sanat Kumar Agarwal's case ( AIR 1990 SC 594 ), it is submitted by the learned counsel that both the parties have adjusted to their new mode of life for a long period, there is no possibility of their reunion, and, therefore, the decree passed by the trial Court be maintained. 8. Placing reliance on Sanat Kumar Agarwal's case ( AIR 1990 SC 594 ), it is submitted by the learned counsel that both the parties have adjusted to their new mode of life for a long period, there is no possibility of their reunion, and, therefore, the decree passed by the trial Court be maintained. 8. The contention of Shri R.A. Roman that the decree for judicial separation under S. 10 of the Act on the ground of desertion, cannot be maintained, has got force for the reason that when the Court held that a child was born out of the wedlock and co-habitation of the parties in the year 1986 while the petition seeking divorce was presented in the same year, there is no occasion to hold that the appellant deserted the respondent-husband for a continuous period of not less than two years, immediately preceding the presentation of the petition. In paragraph 17 there is a clear finding that the respondent has failed to prove by clear, cogent and reliable evidence that the appellant, after solemnisation of the marriage had voluntary sexual intercourse with any person other than her spouse and the wife has lost her character. The Court below held that no direct or indirect evidence has been produced to prove that the child was born from a sexual intercourse with other person than her spouse and, therefore, the trial Court raised a presumption under S. 112 of the Evidence Act that the child was born during subsistence of the marriage holding that the parties had access to each other. 9. The trial Court had reached these findings after appreciating the evidence adduced by the parties which are not liable to be interfered with as the appellate Court does not enjoy advantage which the trial Court had in having the witnesses before it and observing the manner in which they gave their testimony [see Madhusudan Dos's case ( AIR 1983 SC 114 )). On going through the evidence of the witnesses this Court could not find anything which escaped the notice of the trial Court or any improbability to disbelieve opinion of the trial Court on credibility of the witnesses. 10. On going through the evidence of the witnesses this Court could not find anything which escaped the notice of the trial Court or any improbability to disbelieve opinion of the trial Court on credibility of the witnesses. 10. A Division Bench of this Court in Nandkishore Shaligram's case ( 1979 MPLJ 105 ) while dealing with a case under S. 12(1) of the Act observed: "Imputing unchastity to a woman is a charge of a very serious nature. The charge if established may result in serious consequences. Not only that such a woman would be condemned in society and lowered in the eyes of relatives and associates, but may also suffer a child, if any, being called a bastard. It is, therefore, just to seek for a more cogent and convincing evidence in such cases than the one which may only be sufficient to create a doubt." 11. This Court in case of Rajaram v. Smt. Urmiladevi [1986(2) MPWN 245] took a view that S. 112 of the Evidence Act there is a presumption of legitimacy unless the contrary is known. The Court observed that the burden lay on the husband to prove by cogent and reliable evidence that he has no access to the wife. 12. In view of the settled view of this Court the evidence led by the respondent is not sufficient to pass any decree. It is clear from the evidence that the respondent used to come off and on to Shivpuri during holidays. While denying co-habitation the respondent has not stated where he used to stay at Shivpuri during holidays. On the other hand, the appellant in his statement has given categorical statement indicating the months and period of stay of the husband with her at Shivpuri in the house of her brother. Therefore, on the vague allegation of adultery, without giving any particulars in the pleadings or in the statement, the trial Court rightly held that leading of adulterous life is not proved. 13. Admittedly, the child was born to the appellant on 5.5.1986. Therefore, on the vague allegation of adultery, without giving any particulars in the pleadings or in the statement, the trial Court rightly held that leading of adulterous life is not proved. 13. Admittedly, the child was born to the appellant on 5.5.1986. In the circumstances, it is surprising how the Court below arrived at a finding of desertion by the appellant/wife for a continuous period of not less than two years immediately preceding to the presentation of the petition; as the condition of S. 13(1)(ib) was not fulfilled, the Court below was not right in granting a decree for judicial separation; hence, the decree is liable to be set aside and is hereby set aside. 14. The contention of Shri Shinde is that both husband and wife are living separately by giving a severe jolt to the matrimonial relations; they now cannot be happy, as both have adjusted to the new mode of life for a long period; hence, in view of the law laid down in Sanat Kumar's case (supra), there is no possibility of reunion between the parties, a decree for divorce be granted. In my opinion, Sanat Kumar's case is not applicable to the present facts and circumstances of the case. The respondent has come with most injurious allegations of the character of the appellant-wife, which he failed to prove, but even after such allegations, the appellant/wife, who is entitled to a decree for divorce on this ground alone, is ready and willing to live with her husband. Moreover, the husband has clearly admitted in his examination-in-chief that he has not made any effort to call and keep his wife in his matrimonial home. In the circumstances, decree for dissolution of marriage or even of judicial separation cannot be passed at the instance of the spouse who himself is responsible for desertion after co-habitation in the year 1985. 15. In the result, the appeal is allowed, the cross-objections are dismissed and the decree passed by the trial Court is set aside. Petition of the respondent is dismissed with costs. It is hoped that the appellant and the respondent will live together and will remove all misunderstandings between them to lead a happy married life. Counsel's fee Rs.300/- if already certified.