CHAN SINGH Vs. SHOLI

JUDGEMENT

(1.) Chand Singh has filed the present appeal against the judgment, dated December 24, 1977, passed by the Sub-Judge First Class, Nabha, whereby his petition against his wife Sholi under, section 9 of the Hindu Marriage Act for the restitution of conjugal rights was dismissed only on the ground of delay in seeking the relief.

(2.) The parties got married on September 29, 1965, and the petition was filed on March 7, 1973. It was mentioned therein that separation between the parties took place in the month of September, 1970. It was found by the trial Court that it was on the festival of Basant Panchami of the year 1971 that the petitioner came to know that the respondent had performed a second marriage with Karnail Singh. He then instituted a complaint under section 494 of the Indian Penal Code and the respondent was discharged in that complaint on March 6, 1973. The ground of discharge is said to be that the second marriage of the respondent did not stand proved. The petitioner then in all haste filed the petition for restitution of conjugal rights on the next day of the discharge of the respondent. Thus the point for determination in the present appeal is whether the pendency of other proceedings between the parties can be taken to be sufficient ground for delaying the filing of the petition for restitution of conjugal rights. The only thing the petitioner has to prove under section 23 of the Hindu Marriage Act is that there has not been any unnecessary of improper delay in the institution of the proceedings. Learned Sub Judge placed reliance on two authorities for holding that the delay stood unexplained. The first authority is Santosh Kaur V. Mehar Singh,1966 CuLJ 417. It is by some mistake that the learned Sub Judge quoted this authority, as the same has no bearing on the point to be decided in the present case. In the said reported case the petition for restitution of conjugal rights was instituted on August 24, 1964. It was held that an application under section 488 of the Old Code of Criminal Procedure had been filed by (he opposite party on August 4, 1964, and hence it was found that the petition for restitution of conjugal rights was a mere counter-blast to the appellant's application under section 488 of the Old Code of Criminal Procedure. The Second authority relied upon is Teja Singh Subedar Santa Singh V Sarjit Kaur, 1962 AIR(P&H) 195There was a delay of nine years in the filing of the application by the husband for restitution of conjugal rights and hence it was found that the application filed long after the wife had left the petitioner and had even obtained an order for maintenance under section 488 of the Old Code of Criminal Procedure should he dismissed on the ground of delay. In the present case the interval between the separation and the institution of the petition for restitution of conjugal rights is less than three years. There is also a cogent explanation because the appellant was engaged in criminal litigation with the respondent and wanted to see its result before initiating other proceedings against her.

(3.) Learned counsel for the respondent has been unable to cite any such authority where a period of three years or so may have been held to be sufficient for the dismissal of a petition for restitution of conjugal rights merely on the ground of delay. The present appeal is, therefore, accepted. A decree of restitution of conjugal rights is passed in favour of the petitioner and against the respondent. There shall be no order as to costs.