OM PRAKASH DHAWAN Vs. MEENA DHAWAN

JUDGEMENT

(1.) THIS is husband's letters patent appeal whose divorce petition was allowed by the Additional District Judge, Ferozepore, vide order dated 21st January, 1986, but was dismissed in appeal. The marriage between the parties was solemnised on 12th October, 1975, at Ferozepore, out of this wedlock a daughter named Sangeeta was born on 22nd January, 1977 who is residing with her mother. Before the marriage the wife was posted as a Teacher in Government School, Pirke Khangarh and the husband was posted at Fazilka. The husband filed the petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) in March, 1977, on the basis of desertion and cruelty on the part of his wife. Accordingly to the husband, the respondent-wife had herself withdrawn from the society since 5th March, 1977, and was residing at Ferozepore Cantt. away from the matrimonial home. Thus, according to the husband, she has deserted him, for a continuous period not less than two years immediately proceeding the presentation of the petition. He further stated in the petition that the wife has withdrawn from the society of the husband with an intention to bring cohabitation permanently to an end and without his consent. The efforts of the Panchayat and respectables to bring about reconciliation between the parties had since failed as the wife refused to join the society of the husband. In the written statement, the wife denied the allegations. She pleaded that the question of husband's taking Panchayat to the wife home did not arise rather she used to send the Panchayat and she herself went personally many a times to his house and tried her level best to rehabilitate her matrimonial life, but he refused to keep her with him as his wife. In para 9 of the written statement, she pleaded that there was improper delay in filing the petition for divorce. In the replication filed on behalf of the husband in reply to para 9 of the written statement it was stated that it was wrong that there was any improper delay in filing the petition. The allegation of cruelty under issue No. 1 was not pressed on behalf of the husband at the time of arguments. On the question of desertion, the learned Additional District Judge, found that the wife has not been able to prove any good ground by cogent, reliable and trustworthy evidence to justify her living separately from the husband. It was, therefore, held that the wife has deserted the husband since 5th March, 1977, i. e. , for a continuous period of more than two years immediately preceding the presentation of the petition. As a result of this finding a decree for divorce was passed, In appeal, the learned Single Judge reversed the said finding of the Trial Court on the question of desertion and came to the conclusion that "i am of the first view that the ground of desertion is not proved. It is clear from the record that she has been compelled to live away from the matrimonial home because of the husband's unwillingness to keep her. Thus, there is no intention on her part to bring the cohabitation to an end. It is, therefore, the respondent who is the erring spouse. It is, he, who wants to take advantage of his own wrong. 1, therefore, reverse the finding of the learned Trial Court on issue No. 2. " Apart from that, the learned Single Judge also found that there was unexplained delay of more than seven years in filing the present petition for divorce, which was liable to fail on this ground alone, in view of the provisions of Section 23 (1 ) (d) of the Act. As a result of this finding, the petition for divorce filed by the husband was dismissed.

(2.) ON the last date of hearing, arguments were heard, but, in order to find out any possibility of compromise, the parties were directed to be present in person in Court on 22nd October, 1990. Accordingly, the parties are present but it has been categorically stated on behalf of the husband that there was no scope of compromise and he was not willing to take her back as they have parted company for the last 13 years.

(3.) THE main arguments raised on behalf of the appellant was that there was no issue as regards the unnecessary and improper delay for instituting the proceedings and, therefore, in the absence of any such issue, the divorce petition could not be dismissed on this ground alone. After hearing the learned Counsel for the parties, we do not find any merit in this appeal. Even if, there was no crime to that effect, the plea was there in the written statement and in the replication filed on behalf of the husband, no explanation was given for this improper delay on the part of the husband. Section 23 of the Act provides that before a decree is passed in any proceedings for divorce under this Act, whether defended or not, the Court has to be satisfied that there has not been any unnecessary or improper delay in instituting the proceeding. Thus, a duty has been cast on the Court to see that there was no improper delay even if, the proceedings were not defended by the party. That being the provision there was nothing wrong on the part of the learned Single Judge to go into this aspect of the matter particularly when such a plea was available in the written statement and no cogent and satisfactory explanation was given in the replication filed on behalf of the husband.