PAVUNAMBAL Vs. RAMASWAMY AND ANR.

JUDGEMENT

(1.) THIS appeal raises a point about delay in the filing of proceedings for nullifying a marriage. The marriage took place a number of years ago, in 1957. The wife, wishing to have it declared a nullity, moved the Court in 1974 after 17 years had passed. By that time the husband had been dead for nearly 11 years. The ground taken by the petitioner was that at the time of her marriage the husband was already married. This other wife died in 1958, but she was alive when her husband had taken the petitioner in marriage.

(2.) THE learned Subordinate Judge, before whom the petition was filed, heard the petitioner and recorded her evidence. At the end of the inquiry he entered the finding that the marriage was bigamous. All the same, however, he dismissed the petition on the score that it was belated and it, had to be dismissed under the law on that ground. On appeal, the learned District Judge took precisely the same line. He characterized the delay as unconscionable and dismissed the petition.

(3.) THE matter falls to be decided under the provisions of the Hindu Marriage Act, 1955. Section 23 of that Act tells the Courts how and in what manner they should give a disposal to proceedings filed before them under the Act. Clause 1(d) in that section, inter alia, says that the Court may decree, the petition and grant relief "if there has not been any unnecessary or improper delay in instituting the proceedings". The Courts below had apparently invoked this cautionary provision When they proceeded to dismiss the wife's petition. Each in his own mind seemed quite definite that the delay in this case was unnecessary and improper. One of them even remarked that the petitioner had not come forward with any explanation for the delay. Even so, it seems to me that they have fallen into an error in making much of the delay. I do not mean to question their personal assessments of the time -lag. Whether 17 years, or 11 years would amount to unnecessary or improper delay is not, as I conceive it, the whole point of this appeal. For it is just possible to view a question of that kind as one of degree and therefore, as one of fact. But what has struck me rather as an altogether wrong approach in these proceedings, so far, is that the Courts below should have treated the aspect of delay as quite an overriding consideration for the disposal of the petition. It is plain to see what the result of this approach has been. It has been quite unfortunate for the petitioner, if the issue on merits were considered. On that issue there is on record, a finding which is entirely in the petitioner's favour. According to this finding, "it is clear that the petitioner married Anakarudu as his second wife, while the first Wife Arumbu was alive. As such, this marriage is null and void under Section 11 of the Hindu Marriage Act." If so much is granted, it certainly provokes one to ask why the Courts below should at all have felt compelled to dismiss the wife's petition on the ground of delay? My answer is that they had no call to do so.