K RAMASWAMY Vs. ESTHER JOHNEY

JUDGEMENT

(1.) THE unsuccessful husband before both the Courts below has preferred this appeal challenging the legality and correctness of the order of dismissal of the petition filed by him for a declaration that the marriage betwen him and the respondent was null and void and for divorce.

(2.) THE case of the appellant is that he is a Hindu, that the respondent is a Christian and that their marriage was solemnised under the Special Marriage Act, in the presence of the Marriage Registrar, Koilpatti, on 25.10,1972. THE said marriage was not a voluntary one, but it was done under the compulsion and coercion exercised by the parents and relations of the respondent. It is also alleged that the respondent had not come to the age of 18 and hence their marriage is not valid. Lastly it was alleged that even before their marriage, the respondent was having illicit intimacy with one Sankaralingam alias Durai Pandian, that the above fact was concealed by the respondent and her parents, that even after the marriage, she was having illicit intimacy with the said person and that the child born to the respondent was only through the said Sankaralingam.

(3.) LEARNED counsel for the appellant Mr.K.Ramaswami drew my attention to the decision of this Court in PAVUNAMBAL v. RAMASAMI, (1979)2 M.L.J. 273: 92 L.W. 558, wherein Balasubrahmanyan, j. had an occasion to consider the scope of Sec.23(1)(d) of the Hindu Marriage Act and consequently dealt with the epithet 'unnecessary or improper delay'. That was a case, where the marriage took place between the two Hindus in 1957. The wife moved the Court in 1974 to have it declared a nullity on the ground that her husband was already married. By that time, the husband was dead. The first wife also died in 1958. The Sub Judge recorded evidence and at the end of the enquiry entered the finding that the marriage was bigamous but dismissed the petition on the ground of delay. The same was confirmed by the District Judge. On appeal to the High Court, the learned Judge held: