KUPPU DAMAYANTHI Vs. C RAMA RAO

JUDGEMENT

(1.) The appellant (wife) and the respondent (husband) were married under the Special Marriage Act, 1872, on 24-2-1953. before the Registrar of Marriages at Visakhapatnam. They appear to have lived together as man and wife for some time prior to the marriage too. and the appellant had admittedly borne the respondent a son before the marriage. The marriage did not meet with the approval of the parents of the respondent. His father never got reconciled to the marriage and made persistent efforts to get the marriage dissolved by trying to induce the appellant to agree to a divorce but his efforts bore no fruit. Whether it was due to the strenuous efforts of the respondents father to separate husband and wife or due to the alleged waywardness of the parties the marriage itself was not a great success. The appellant and respondent do not appear to have lived together continuously for any considerable length of time at any stage but they undoubtedly lived together off and on at various places periodically. Though the marriage was not a success. the respondent even as late as in February 1958, appeared to have been quite keen that the appellant should come and live with him and that she should resist attempts by his father to induce her to agree to a divorce. This is evident from Ex. B. 11 (d) letter written by him to the appellant. Some time between the year 1958 and 1960 there was a definite break between the parties. After the break renewed and redoubled efforts were made by the respondents father to induce the appellant to agree to a divorce but again without any result. Finally on 12-6-1960 the respondent filed the petition giving rise to this appeal. under Section 24 of the Special Marriage Act of 1954 for a declaration that the marriage was null and void. He alleged and it is now undisputed. that he was born on 5-10-1932 and therefore below the age of twenty one years on the date of marriage i.e. 24-2-1953. AS the consent of his father had not been obtained as required by Section 2 (3) of the Special Marriage Act , 1872. he claimed that the marriage was a nullity. The learned District Judge of Visakhapatnam granted the declaration prayed for but on appeal Chandra Reddy. C. J. and Gopal Rao Ekbote, J., set aside the decree and remanded the petition for fresh disposal as they were of the view that the learned District Judge had not considered the question whether there has not been any unnecessary or improper delay in instituting the proceeding Under Section 34 (1) (e) of the Special Marriage Act. 1954. it is only where the Court is satisfied that there has been no unnecessary or improper delay that relief under Section 24 could be granted but not otherwise. After remand the learned District Judge holding that there was no unnecessary or improper delay in instituting the proceeding, once more granted the declaration prayed for . The wife has now appealed against the decree of the learned District Judge.

(2.) The Marriage, as we said, was solemnised on 24-2-1953 and the petition for a declaration that the marriage was null and void was filed on 12-6-1960. The explanation offered by the respondent for this long delay, which has been accepted by the learned District Judge is that almost from the date of marriage, he or those interested in him were trying to secure a divorce peacefully and that he was compelled to file the petition under Section 24 only after those efforts proved fruitless. But, in our opinion, this is no explanation at all. On the contrary, it implies a recognition by the parties of the existence and validity of the marriage which is not valid. We cannot help that the failure of a spouse to induce the other spouse to agree to a divorce is explanatory of the delay in suing for a declaration that a marriage is null and void. It may be said, as indeed it was said by the learned Counsel social conditions require that there should be no rigid insistence on the maintenance of a union which has utterly broken down. It may be so but we cannot ignore that status conferred by marriage and the consequences that flow from it, particularly, after years of cohabitation. The consequences with regard to the children of the marriage, are so serious and far reaching that it will be unjust and improper to give to individuals the choice of challenging the validity of a marriage when they like, As was observed by Hodson L. J. in Llewellyn v. Llewellyn, (1955) 2 All ER 110: "The Court is not to be used as a place to which people can come for redress just when it suits them." In the same case Denning. L. J. after observing that the petitioner cannot play fast and lose with marriage in that way extracted the following passage from Boulting v. Boulting, (1863) 164 ER 1302: "The Petitioner must feel and suffer under the wrong of which complaint is made, and the Court must be satisfied that the remedy is sought as a genuine relief from the pressure of that grievance. Such is the beaten track of the decisions. It is impossible to tread too faithfully in footsteps so wisely placed.

(3.) In the present case the grievance of the respondent, in truth, is not that the marriage is invalid, but that it is unhappy, the remedy which he wanted all these years was a dissolution of the marriage and not a declaration that it was null and void. Having failed in his attempts to induce the respondent to agree to a divorce he is now seeking to get rid of an unhappy marriage though for seven years he was content to recognise it as a valid marriage. We consider that it would be unfair and inequitable to the wife and the children of the marriage to permit him to do so after a lapse of so many years. WE further consider that it is impossible to hold that there has not been any unnecessary or improper delay instituting the proceeding. In fairness to Mr. Ramachandra Reddy, the learned Counsel for the respondent, it must be said that he did not attempt to support the finding of the learned District Judge that there was no unnecessary or improper delay. He urged that under the Special Marriage Act 1872 a marriage was null and void if one of the spouses was below the age of twenty one years and consent of the guardian had not been obtained, that delay or no delay, a party to such a marriage had an unfettered right to obtain a decree declaring a marriage as nullity that the Court had no discretion in the matter and was bound to grant a decree and that although the Special Marriage Act of 1872 was repealed the right to this remedy and such other similar rights were preserved by Section 51(3) of the Special Marriage Act of 1954. According to him Section 34 (1) (e) of the Special Marriage Act of 1954 does not apply to marriages solemnized under the Special Marriage Act of 1872 as it will have the effect of curtailing the vested right to the remedy of obtaining a declaration of nullity of marriage.