PAWAN KUMAR Vs. SMT. BIMLA DEVI

JUDGEMENT

(1.) This appeal is directed against judgment and decree of Additional District Judge, Bhatinda, dated 27th April 1988 dismissing the appellant's petition under Sec. 13 of the Hindu Marriage Act. Pawan Kumar petitioner married Smt. Bimla Devi, respondent in Nov., 1968. No child was born to the couple. On account of differences, the parties started living separately from each other since November/December, 1974. On behalf of the wife, application under Sec. 125 Code Criminal Procedure for maintenance was instituted in 1976. During the pendency of those proceedings, the husband allegedly remarried one Usha Rani. The wife, therefore, instituted a complaint under Sec. 494 Indian Penal Code Ultimately, the said complaint was dismissed by the High Court. The present petition under Sec. 13 was instituted by the husband in 1987. The grounds for dissolution of marriage pleaded by the husband were cruelty and desertion. With regard to cruelty, it was pleaded that the respondent-wife was quarrelsome and missed no opportunity to hurt the petitioner and other close relations. She had been giving threats from time to time to commit suicide and she denied sex to the husband. With regard to other ground, it was stated that she had deserted the husband for more than two years.

(2.) The petition was contested by the respondent. Both the grounds for dissolution of marriage were controverted and the material allegations denied. It was further stated that, in fact, the husband was himself guilty of desertion. He had left her at the house of her brother at Dhuri in November/December 1974 and had not cared to look after her ever since. It was further pleaded that he had married a second time and in order to legitimise his second marriage, the present petition had been instituted. It was further stated that she was still ready and willing to live with the petitioner. It was also pleaded that the petition deserved to be dismissed as it was highly belated. The trial Court framed the following issues :

(3.) From the facts set out above, it is apparent that the only ground for dismissal of the petition was unncessary and improper delay mentioned in Clause (d) of Sec. 23 of the Hindu Marriage Act, 1955. It is settled law that what may amount to unnecessary or improper delay is a question of fact depending upon the facts and circumstances of each case. It is well known that there are several constraints for the parties to a marriage for rushing to the Court for the relief of dissolution of marriage. Admittedly, litigation had been going on between the parties mostly at the instance of the wife since 1976. In between took place the litigation on account of the husband having allegedly entered a second marriage. Ultimately, the wife failed to prove the case under Sec. 494 Indian Penal Code against the husband beyond reasonable doubt with the result that her complaint was dismissed by the High Court. The delay in the facts and circumstances of the case thus stood adequately explained and the trial Court clearly fell into a serious error in dismissing the petition on the ground of unnecessary and improper delay. For these reasons, the appeal succeeds. No serious effort was made to assail findings of the learned trial Court on issues relating to cruelty as well as desertion.