Gokal Chand Mital, J. - (1.)The parties were married way back on 4th Sept., 1974. It is the case of both sides that they lived together for six months. In the evidence it has been admitted by the respondent that to start with he filed a petition for divorce against the wife, which he withdrew. However, the wife's case is that after she filed her written statement, the husband did not appear and the divorce petition was dismissed in default. The divorce petition or court orders have not been placed on record. Thereafter on 26th Nov., 1979 (Exhibit R 2), the wife filed a petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). By order dated 22nd Oct., 1980, Exhibit R4, that application was allowed on the statement of the husband that he is ready to take her. Since the husband did not take her on 27th Oct., 1980 the wife filed an application for execution. The notices issued by the Executing Court were refused by the husband, and, therefore, order for attachment of the property of the husband was passed, vide Exhibit R5 dated 28th Feb., 1981. In spite of these efforts on the part of the wife, the husband did not take her. Thereafter, on 6th Aug., 1981 the husband filed a petition under section 13 of the Act for divorce on the ground of desertion for two years and also on the ground that he had converted himself to Christianity and he asked the wife also to get converted into Christianity but she refused. On 14th October, 1981 when the District Judge made endeavour to bring absolute conciliation, the wife expressed her willingness to go and reside with the husband and her statement was recorded. Thereafter, the statement of the husband was also recorded that in view of the statement of the wife, he did not want to pursue the divorce petition. Consequently, vide order Exhibit PH1 dated 14th Oct., 1981 the divorce petition was dismissed. It is the case of the wife that on 14th Oct., 1981 the husband did not take her and she moved an application forthwith bringing this fact to the notice of the court. On the contrary the husband's case is that the wife did not accompany him and he filed an application to bring this fact to the notice of the Court by filing an application. All the same, further case of the wife is that thereafter the District Judge persuaded the husband to take the wife and she went along with him and stayed with him till 31st Oct., 1981, during which period, they cohabited as husband and wife. However, this position taken by the wife is not accepted by the husband because he filed a divorce petition on 2nd Nov., 1981, wherein he has taken the stand that since the passing of decree for restitution of conjugal rights for a period of over one year, there has been no re-sumption of cohabitation between the parties. Accordingly, he sought divorce under section 13 of the Act. The wife contested the petition and pleaded that they lived together as husband and wife and cohabited as such from 14th Oct., 1981 till 31st Oct., 1981 besides denying other pleas taken by the husband.
(2.)On the contest of the parties, the following issues were framed :
1. Whether the respondent treated the petitioner with cruelty after the solemnisation of marriage ?

2. Whether the respondent has deserted the petitioner for a continuous period of two years preceding the presentation of the petition ?

3. Whether the parties have resumed cohabitation after the passing of the decree for restitution of conjugal rights on 22-10-80. If so, its effect ?

4. Relief.

The trial Court found issues Nos, 1 and 2 against the husband but decided issue No. 3 in favour of the husband and, consequently, by judgment and decree dated 10th March, 1983 passed a decree of divorce in favour of the husband. This is wife's appeal.

(3.)After hearing the learned counsel for the parties and on perusal of the record I am of the view that this appeal deserves to succeed. After going through the entire evidence on the record, I find that it is the husband who is to be blamed for the entire matter. The wife has, throughout, been willing to live with the husband, and to achieve that end, she filed an application for restitution of conjugal rights, which was decreed in her favour on the statement of the husband and when he did not keep her, she took out the execution and got attachment made. When the husband filed another petition for divorce, she again made a statement that she was prepared to live with him and on persuasion, the husband took her but kept her only for two weeks, and again turned her out. I am not in agreement with the Court below, that the statement of the wife that she lived from 14th Oct., 1981 to 31st Oct., 1981 with the husband and cohabited as such, does not inspire confidence. It is true that the wife also filed an application before the District Judge on 14th Oct., 1981 that the husband was not agreeable to take her, but the husband also lied similar application, and, therefore, there were counter allegations against each other. It is then the case of the wife that on persuation of the District Judge, the husband took her on 14th Oct., 1981 and they lived and cohabited till 31st Oct., 1981. I believe her statement and hold that they lived together during his period and consequently, the decree for restitution of conjugal rights stood complied with and the husband cannot base his case under section 13(1-A) (ii) of the Act.