BANNUBAI Vs. RATANA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff-applicant for dissolution of marriage raising two main points in controverse; firstly, whether in a case of this nature the delay by itself disqualifies the plaintiff (wife) to the relief of dissolution she would have been otherwise entitled to; secondly whether the fact of her having lived in adultery is itself the result of the husband's domestic cruelty and as such not countable against her as her own wrong. All the other elements in this case are either common ground or have been found in favour of the plaintiff.

(2.) THE facts in brief are the following: THE wife-plaintiff and the respondent-husband had married according to Hindu rites many years before the initiation of these proceedings in 1963; it was at least 15 years earlier, possibly near 20 years. Soon after the marriage there were differences and the wife went away to her parent's house. At the first instance she did no other act that can be called improper; but the husband married another woman,-or at any rate began to keep the other woman named Ganga as his wife. He has by now got a few children by her. THE wife in her turn threw herself in the mercy of a fellow-villager called Bhura by whom she had got three children at the time of the application. Shortly before the application there were some allegations by the parties, in particular, one by the wife that the husband-respondent was trying to take her away by force. This, however, has not been proved. Similarly, the husband's earlier allegation that while going away some years ago the woman took ornaments which really belong to the husband had not been believed. What we have therefore is a separation by the woman at the first instance possibly under some domestic difference, a failure on the part of the husband for years together to give her maintenance or other assistance, the marriage with, or the keeping of a second woman in his house by the husband, and following it the wife's throwing herself on another man and living in adultery with him. For nearly seven years since it became possible for the wife to apply for dissolution or judicial separation, she did not go to Court with a petition.

(3.) TO try to lay down a single rule for all these kinds of delays is certainly dangerous. Before unsuiting any applicant under section 13 of the Hindu Marriage Act or as for that matter under the corresponding section of the Indian Divorce Act we should ascertain what exactly the delay was due to and where it is the result of several causes, what is the predominant one. We should also remember that delay even when it raises the presumption of acquiescence is liable to explanation and the explanation whatever it is worth should be given due consideration.