SHANTI DEVI Vs. RAMESH CHANDRA ROUKAR

JUDGEMENT

(1.) This appeal arises out of a proceeding under Section 9 of the Hindu Marriage Act, 1955 (25 of 1955), in which the husband made an application for restitution of conjugal rights on the ground that his wife who is appellant here, had without reasonable excuse withdrawn from his society. In defence the appellant alleged cruelty, desertion by and in vitality of the husband. The Court below on consideration of the evidence allowed a decree for restitution of conjugal rights in favour of the husband. The present appeal is directed against that

(2.) Apart from assailing the findings as given by the Court below, learned counsel urged two other points. He contended that according to the respondents' case the appellant had left his society in 1955 and lived since then with her parents. The proceeding under Section 9 was initiated by the husband in 1964. For a period of about ten years no step had been taken by the husband for restitution of conjugal rights. This aspect has not been taken into account by the court below and according to learned counsel the decree for restitution of conjugal rights, as passed, has been vitiated.

(3.) Section 23(1)(d) of the Hindu Marriage Act states "In any proceeding under this Act, whether defended or not, if the court is satisfied that there has not been any unnecessary or improper delay in instituting the proceeding, then, and in such a case, but not otherwise, the court shall decree such relief accordingly." It was thus incumbent upon the court below to be satisfied that the long delay of about ten years as suffered by the husband before coming to the court had been substantially explained or was otherwise justified. On a perusal of the entire judgment I do not see that this aspect of the case had at all come to the mind of the court. In the plaint itself the husband had stated that the wife had gone away at the instance of her parents in 1955 and under their influence she was staving with them all the time. This being the admitted position it was necessary for the husband to explain the inordinate delay before coming to the court for redress. In that view alone the judgment cannot be sustained.