BALDEV KAUR Vs. AVTAR SINGH

JUDGEMENT

(1.) The marital tie between the parties was severed at the instance of the respondent husband by the trial Court on May 23, 1980, by a decree of divorce. It was granted on the ground that a decree for restitution of conjugal rights obtained by the appellant wife on December 1, 1972, remained unsatisfied. In reply to the petition filed by the husband under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 (for short 'the Act') the wife took inconsistent pleas that (i) following the decree of restitution of conjugal rights the parties resumed cohabitation and lived as husband and wife upto the year 1978 and (ii) the petitioner husband deserved to be non-suited on the ground that he could not take advantage of his own wrong. As a result of the trial that followed, the first Court, however, held that as a matter of fact the parties never resumed cohabitation and in the light of the Full Bench judgment of this Court in Smt. Bimla Devi v. Singh Rai, 1977 AIR(P&H) 167, the appellant could not be declined the relief on the ground that he was taking advantage of his own wrong in not resuming cohabitation. This decree granted in favour of the husband was sought to be assailed by the wife before the learned Single Judge primarily on the ground that the petitioner husband had been guilty of unnecessary or improper delay in instituting the present proceedings and thus in the light of the provisions of Section 23(1)(d) of the Act, he disentitled himself to the relief prayed of or. This aspect of the matter has been dealt with by the learned Single Judge in the following manner :-

(2.) No doubt it is true that the above noted provision of law indicates that the Court must be satisfied that there was no unnecessary or improper delay in the institution of the proceedings before it proceeds to grant the relief, but it is equally true that mere delay or long lapse of time in the launching of the proceedings is by itself not a bar to the grant of the relief under the Act. All that has been laid down in clause (d) of Sub-section (1) of Section 23 of the Act is that the delay must not be unnecessary or improper. In a nut shell, the delay by itself is not the absolute bar the relief asked for though it calls for some explanation on the part of the petitioner. Even in the case of gross delay, the Court has the discretion of course the judicial one to grant or not to grant the relief according to the circumstances of the case. The learned counsel for the appellant has not been able to putforth any facts or circumstances which impel us to disturb the judicial discretion exercised by the learned Single Judge. Besides all this the grant of the decree dated December 1, 1972, at the instance of the wife and its non-satisfaction all through clearly indicates it to be a case of 'broken marriage'.

(3.) For the reason recorded above, we decline to interfere with the decree granted by the lower Court and dismiss this appeal but with no order as to costs.