SMT. KUBJA Vs. MEENA AND ORS.

JUDGEMENT

(1.) This appeal is directed against the decision of the learned District Judge, Simla, in a case under Sec. 13 of the Hindu Marriage Act, 1955, whereby the petition of Smt. Kubja has been dismissed. It was alleged by Smt. Kubja the Petitioner that he was married with Meena Respondent No. 1 some 7 to 8 years before the date of the institution of the petition and started living with him as his wife. According to her, Meena was formerly married to her real sister Smt. Subhdha and despite that marriage she consented to marry Meena. However, some two to three years after her marriage with Meena the latter contracted another marriage with Kaunla Respondent No. 3, which marriage was a nullity and hence Respondent No. 1 Meena was living in adultery with Smt. Kaunla Respondent No. 3. She, therefore, filed the petition under Sec. 13 for a decree for divorce on the ground of adultery committed by Meena with Kaunla. The defence of Meena was that he never married Kaunla nor did he live in adultery with her. The learned District Judge held that the .marriage of Meena with Kaunla was not proved nor adultery was established. Besides that the learned District Judge also held that the petition is unnecessarily or improperly delayed within the meaning of Sec. 23(1)(d) of the Act. Accordingly the petition was dismissed and Smt. Kubja has filed the present appeal against that decision.

(2.) It was contended by the learned Counsel that even if the marriage of Meena with Kaunla was not proved his adultery with her was established. For this the learned Counsel referred to the evidence adduced by the respective parties. The learned District Judge has also referred to that evidence in detail. The Petitioner gave her own statement and produced three witnesses -Shri Kalmu "(P. W. 2), Shri Udey Ram (P. W. 3) and Shri Sunder Singh (P. W. 4). As regards Kalmu, he claimed to be the father of Smt. Kaunla but the latter (R. W. 3) denied that he was her father. Shri Udey Ram (P. W. 3) claimed to be the PANDIT for the marriage and Shri Sunder Singh (P. W.4) also claimed that he attended the marriage of Smt. Kaunla with Meena. As against these witnesses, Meena (R.W. 1) gave his own statement and produced witnesses -Smt. Subhdha (R.W. 2), Smt. Kamla (R.W. 3) and Shri Surat Ram (R.W. 4), The last witness claimed to have married Kubja although the learned District Judge did not place much reliance upon his statement. I have gone through the statements of these witnesses and for the reasons stated the learned District Judge rightly disbelieved the case regarding marriage. If that part of the case was dis -believed, it was also disbelieved that Kaunla ever lived with Meena as his wife. Thus adultery too was not proved. The appraisement of evidence made by the learned District Judge was correct and nothing could be pointed out as to why the Respondents' witnesses should not have been believed. The result is that the finding regarding marriage cannot be assailed. If marriage was disproved adultery was also disproved because no one stated without marriage Kaunla ever stayed with Meena and the latter committed adultery with her. The result is that the plea regarding marriage or adultery was not made out.

(3.) Regarding the question of delay it is the admitted case of Smt. Kubja that she filed the petition two to three years after the alleged marriage of Kaunla with Meena. It is significant that not a word is stated by her or her witnesses as to what for this delay was committed. She could have given some explanation or the other but she remarkably failed to give any reason for the delay. The Court is not to be used as a place to which people can come for redress just when it suits them and if the learned District Judge who tried the case came to the conclusion that unnecessary and improper delay was committed, the relief can be denied to the Appellant. The learned Counsel relied on two cases of Delhi High Court, regarding delay; These are: S. Appellant v/s. R. Respondent : A.I.R. 1968 Delhi 79, and Smt. Nirmoo v/s. Nikka Ram : A.I.R. 1968 Delhi 260. In both the cases the learned Judges held that while dealing with a question of delay one should not be oblivious of the background and tradition of Hindu Society and the instinctive reluctance amongst the women to come to Court and seek redress of their grievances against the husband. However, it was further held that each case has to be decided on its own facts. It is true that the background and tradition of Hindu Society have to be taken regard of but nevertheless it is for the Petitioner to say if due to that back ground and tradition she did not come to Court at an earlier date. In the instant case no reason whatsoever is disclosed by Smt. Kubja or her witnesses as to what prevented them from coming to Court at an earlier stage. The right of divorce presumably under the Hindu Marriage Act being obviously against the ancient tradition of Hindu society is required to be exercised within circumscribed limits. One of such limits is the promptitude expected from the husband or the wife to seek redress from the Court without unnecessary and improper delay. If they have not done so, the relief of divorce must not be readily granted. Therefore, in my opinion the learned District Judge was right in holding that there was unnecessary or improper delay in instituting the proceeding.