Chennakesav Reddy, J.
1. In this appeal preferred under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') the wife is the appellant. Her husband, Midathada Jugannadham, filed an applicition under Sections 10 and 13 of the Act for dissolution of the marriage by a decree of divorce on the ground that his wife, Akkamma, has been living in adultery with Pailasuri Demudu, the second respondent in the application since October, 1958. The learned Additional Subordinate Judge allowed the application of the husband. The wife has now come up in appeal.
2. The events leading to the matrimonial dispute between the spouses may be shortly stated: Midathada Jagannadham married Akkamma, the daughter of his maternal uncle when she was a child of 10 years some time in 1928. Akkamma was a sickly woman and did not attain puberty. Jagannadham, married Demudamma in about 1938. It is the case Jagannadham that be married Demudamma after her marriage with her first husband was dissolved according to the custom of the community, while it is the case of Akkamma that Demudamma lived only as a concubine of Jagannadham and that the marriage with her first husband was not dissolved. Jagannadham has 5 sons and 3 daughters by his second wife Demudamma and 2 of his sons and one daughter are already married. Akkamma attained puberty at the age of 25 and lived with her husband along with Demudamma and her children. She stayed with her husband for 2 or 3 months and went away without informing him some time in October, 1958 for the parents' house. According to the husband, the never returned to her husband's home subsequently. According to him she came under the evil influence of the second respondent, Pailasuri Demudu, and developed illicit intimacy with him and has been leading adulterous life.
The second respondent, is the husband of her elder sister and lives as illatum son-in-law in her parents' house. As a result of the adulterous life a son was born to her 3 years after she left her husband's house. Therefore, the husband filed a petition for dissolution of marriage by a decree of divorce, Akkamma resisted the application. According to her, she joined her husband even in 1935 after she attained puberty and two years thereafter, her husband developed illicit intimacy with Demudamma and brought her to his house. Since then, it is the case of the wife that her husband neglected her and ill-treated her. According to her, she bore ill-treatment with the hope that her husband would change his attitude. Finding that there was no change in the attitude of her husband, she left the house towards the end of October, 1958. However, according to her, on the advice of the elders, she rejoined her husband and resumed conjugal society and as a result she gave birth to a son in November, 1959. She denied that she has been leading an adulterous life with the second respondent. The second respondent also denied that he had any intimacy with Akkamma, the first respondent.
The learned Subordinate Judge, on a consideration of the evidence adduced in the case found that Akkamma, the wife, was leading an adulterous life with the second respondent after she left the house of her husband in the month of October, 1958 and that as a result, a son was also born to her. Therefore, he granted a decree of divorce.
3. The first question that arises in this appeal is whether the first respondent-wife was living in adultery with the second respondent.
4. The first respondent is the daughter of the petitioner's maternal uncle. They are residents of the same village. They were married at a very young age. The petitioner was aged about 15 and the first respondent was aged about 10 years. It is in the evidence of the petitioner that the first respondent was a sickly person and had not attained puberty even by her 20th year. Therefore, he was advised by his maternal uncle and father of the first respondent to marry another lady. He married Demudamma 10 years after the marriage with first respondent It is common ground that some time in Oct., 1956, after the first respondent attained puberty she lived with the petitioner for about 2 months and thereafter she left the house without informing her husband. It is in the evidence of the petitioner as P. W. 1 that he has seen the first respondent sleeping with the second respondent in the Kallam as husband and wife. The second respondent is the husband of the first respondent's elder sister. The evidence of P. W. 1 that the first respondent has been leading an adulterous life with the second respondent is substantially supported by P. W. 2. P. W. 2 is closely related to the first respondent.
The grand-mother of the first respondent and P. W. 2's mother are sisters. According to this witness, the first respondent has been living away from her husband's house from the time she left her husband some time in 1956. The case of the first respondent that there was re-union again in November, 1958 is totally denied both by P. W. 1 and this witness. This witness categorically stated that be has seen respondents 1 and 2 sleeping together in the kallam during night times. P. W. 3 is no other than the paternal uncle of the first respondent. He has also deposed that the first respondent never returned to the house of the petitioner after she left her house some time in 1956. He also stated that he has seen respondents 1 and 2 sleeping at the Kallam during nights. The first respondent herself as R. W. 1 admitted that after P. W. 1 brought Demudamma she went away to her parents' house. She also admitted that Demudamma came to her house within 10 years after her marriage i. e., when she was about 20 years old. Her admission supports the case of her husband that since the first respondent is a sickly woman and did not attain puberty, he married Demudamma with the consent of the father of the first respondent. in view of the disinterested testimony of P. Ws. 1 to 3 the conclusion iS inescapable that the first respondent was leading an adulterous life with the second respondent and a son was born to her as a result of adulterous intercourse with the second respondent.
5. The learned counsel then submits that there has been unnecessary and improper delay of nearly 10 years in the institution of the proceedings by the husband and the bar for relief enacted in Section 23(d) of the Act, is therefore, attracted. Section 23 of the Act reads as follows:
'23. Decree in proceedings : (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that--
(a) Any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, on where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or pro-secuted in collusion with the respondent, and
(d) there has not been any unnecessary of improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.
2. Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.'
6. The words used in Clause (d) are 'unnecessary or improper delay'. That at once raised the conundrum -- What is that delay that can be called 'unecessary and improper'. Every delay is not unnecessary and improper and is not a ground for non-suiting the petitioner. The Court must be satisfied that the delay does not amount to condonation of the matrimonial misconduct. It may be justified in condoning the delay for various reasons, viz., the consideration of the honour and prestige of the family, the fear of scandal and desire to avoid a final break-up if possible, reasonable chances of reconciliation and general reluctance or apathy on the part of the spouses to resort to the Courts.
7. The Limitation Act prescribes no period of limitation for filing a petition for divorce. Lapse of time by itself is, therefore, no bar to relief under the Act. But Section 23(1)(d) enacts that the Court should satisfy itself before granting the relief that there has been no unreasonable delay in the initiation of the proceedings. The provision is obviously intended to ensure that there has been no want of sincerity, that there has been no collusion, acquiescence and connivance in the adultery of the wife and that the petitioner has not been insensible to his injury. The presumption of law is against the existence of connivance and acquiescence. In other words, the conduct should be found to be culpable. Generally there is an apathy that is inherent in Indian culture in the matter of resorting to Court for the remedy of matrimonial differences however acute they may be. It would not be proper to insist upon, the maintenance of the union which is utterly broken down when there is not even remote possibility or probability of reconciliation between the spouses. Therefore, the Court has got to look into the existence of any motive for the belated petition because the purpose of the discretionary bar to a decree under the Act enacted under Section 23(1)(d) is to encourage lawful wedlock and set its face against adultery.
8. Every matrimonial proceeding is a triangular contest; the Court being a party along with the two spouses, should guard itself against any fraud being played on it to secure a decree. If the Court finds there has been collusion or connivance or acquiescence of adultery by the wife, it must set its firm foot on it and refuse the relief asked for, however, well founded it may be. The Court is not a place where the spouses could come at their own liesure for relief. If the delay has been explained, the Court should consider the explanation and then decide whether the delay is a bar for granting a decree.
9. Let me first now refer to the texts on Hindu law on the question. N. R. Raghava-chariar's Hindu Law, Seventh Edition, Vol. II at page 1073 says:
'So far as India is concerned, a spouse especially amongst Hindus, be it the wife or the husband, is not expected to rush to the matrimonial Court for the relief immediately a matrimonial offence is discovered. Brought up in an atmosphere of general patience and forbearance, it is rarely that either spouse is provoked, to resort to the Court even under the stress of the worst matrimonial offence.'
10. Dr. H. S. Gour in his 'Hindu Law of Marriage and Divorce' at page 577 says:
'The question whether, in a given case, there had been unnecessary or improper delay in instituting the proceeding has to be decided on its own facts. No hard and fast rule can be applied in deciding that question. It is worth remembering that the Act has not prescribed any period of limitation for presenting an application under Section 12 of the Act.'
11. In the 'Principles of Hindu Law' by D. F. Mulla, 12th Edition the author at page 888 also says :
'The principle and the basis of the rule is that delay is a material factor because if unexplained it may lead to the inference that there was collusion between the parties, or acquiescence in the injury or indifference to the same or some wrong motive for seeking relief after slumbering over the matter in sufficient comfort for an inordinate period after the ground for relief had arisen. Whether the delay in instituting proceeding is unnecessary or improper would depend on the facts and circumstances of each case. A petitioner may not readily he charged with improper or unnecessary delay where any element of the nature indicated above is shown to have existed.
At the same time, the Court will not permit itself to be used as a place to which a party to a marriage can come for redress whenever it suits him or her to do so, having in the meantime held the weapon of redress over the head of the other party to the marriage. Delay in such a case would be highly improper.'
12. The observations in Halsbury's Laws of England, Third Edition, Volume 12 at page 231 are apposite:
'Delay, however long, in bringing a suit for nullity is not, apart from statutory provision to the contrary, in itself a bar, though it throws a special burden of proof upon the petitioner.'
13. Now let me refer to some of the decided cases cited at the Bar on the question.
14. In Harrison v. Harrison, (1864) 33 LJPM & A 44 20 years delay by the wife was condoned by the Court on her establishing that it was due to her proverty.
15. In Manchar Bapuji v. Chandrawati, AIR 1936 Nag 26 the, Nagpur High Court held that a delay of seven years in presenting a petition for divorce is, prima facie, unreasonable and raises a presumption of connivance or condonation and the burden is on the petitioner to explain the delay before he can be granted the decree he seeks. The case was remanded for further enquiry. So also in Ammanna v. Ammanna, AIR 1949 Mad 7 it was observed by the Madras High Court that the petitioner should have given evidence to explain the delay of 12 years intervening from the time when the wife left home until he presented his petition for dissolution of his marriage. The case was remanded.
16. In Becker v. Becker, (1966) 1 WLR 423, a delay of fifteen years after desertion in the institution of the proceedings was not considered as a bar when the parties lived far away and the marriage was as dead so could be. In Adelaide Mande Tobias v. William Albert Tobias, : AIR1968Cal133 the Cal-cutta High Court held that the delay of 26 years in the institution of proceedings by the wife after desertion was not a bar to the relief of divorce as the explanation of the wife that she did not consider it wise to have the divorce until the children were brought up educated and settled was worthy of acceptance.
17. In Clifford v. Clifford, (1948) p 187 the marriage was declared a nullity 27 years after the marriage. In this case, the ground on which the decree sought was impotency of the husband at the time of the marriage. The learned Judges observed:
'The fact that the appellant is impotent is well established. We fail to see how lack of sincerity on her part or the fact that she had earlier approbated the marriage assuming that those things are established can disentitle her to the relief to which he is entitled under the law. Lack of sincerity on her part or her appobation of the marriage cannot make the appellant potent. The want of sincerity on the part of a spouse or his or her approbation of the marriage may be elements which can be taken into consideration in deciding whether the complaint of impotency is true. We think that the rule of sincerity laid down by the House of Lords will have to be applied even in cases to which that rule applies, with great deal of caution.'
18. In Chinnaperumal Naicker v. Mari-yayee Ammal, AIR 1976 Mad 179 (Hn. Pt. B) the Madras High Court held that:
'It is from the circumstances of each case that the delay in filing the petition for restitution of conjugal rights has to be decided. While dealing with this question one should not be oblivious of the background and traditions of Hindu society and the instinct or reluctance among the women to come to the Court for seeking redress of their grievance against the husband. No general rule can be laid down as to in what circumstances delay should lead to the unsuiting of an application under the Act for the very simple reason that the delay may be the result of different causes in different cases. The Court should in this respect be guided to some extent by what may be called the humanitarian principle. The delay even when it raises the presumption of acquiescence is liable to explanation which whatever its worth, should be given due consideration. An opportunity should be given to the party to explain the delay and after considering the explanation the Court should decide whether the petitioner should be unsuited on account of the delay.'
19. The Delhi High Court in Vinod Chandra Dube v. Smt. Aruna Dube, : AIR1977Delhi24 held :
'Delay, however long in bringing a proceeding under the Hindu Marriage Act is not by itself a bar but is relevant when considering want of sincerity, that is, such conduct on the part of the petitioner as ought to estop him or her from the remedy.'
The learned Judge further observed (paras 41 and 44):
'It is true that the Court is not to be used as a place to which people can come for redress just when it suits them. But the question whether in a given case there had been unnecessary or improper delay in instituting the proceeding has to be decided on its own facts. No hard and fast rule can be laid down. But it is well to remember the one single principle that it is not so much the time factor between marriage and proceedings that matters as the conduct of the parties during that period and the explanation for that conduct.'
20. In Thimmappa Dasappa v. Thim-mayya Kom Thimmappa, AIR 1972 Mys 234 a decree for divorce was refused on the ground of unnecessary and improper delay in instituting the proceedings. In that case, the husband filed an application 4 or 5 years after he first came to know that the wife had committed adultery. The learned Judges in that case held that the husband failed to explain the inordinate delay in filing the petition for divorce on the ground of adultery.
21. The Madras High Court in M. Arone v. Kali, (1910) 8 Ind Cas 759 held on the facts of the case that the delay of 8 years in filing the application for divorce on the ground of alleged adultery was not satisfactorily explained.
22. The Supreme Court in Mahendra Manila Nanavati v. Sushila Mahendra Nana-vati. : 7SCR267 dealing with the scope of Section 23 of the Act held (at p. 371):
'Section 23 of the Act requires the Court to be satisfied on certain matters before it is to pass a decree. The satisfaction of the Court is to be on the matter on record as it is on that matter that it has to conclude whether a certain fact has been proved or not. The satisfaction can be based on the evidence, oral or documentary, led in the case. The evidence may be direct or circumstantial.'
23. Let us now apply the tests laid down by the Texts and precedents and see whether on the facts and circumstances of the case, there has been unreasonable delay in the petitioner approaching the Court for relief under the Act and if there is any unreason-able delay whether he has satisfactorily explained the said delay. Undoubtedly, the petitioner approached this Court for relief after delay of nearly 10 years, after he came to know that the first respondent was living in adultery with the second respondent. It is established that the first respondent has been living in adultery with the second respondent since 1958 and the marriage is irretrievably broken. The petitioner, as P. W. 1 stated that the first respondent has been living in her parents' house leading an adulterous life with the second respondent who is her maternal uncle. According to the witness, the second respondent also lives in the house of the first respondent's parents as ilia turn son-in-law He denied that since a son was born to the first respondent, he has come with this plea to deny a share to the son born to the 1st respondent in the properties of the petitioner. The petitioner has married Devudamma and he has 5 male children and 3 female children by her. It is thus clear that both the spouses had forgotten about their marriage. The petitioner has been living happily with Devudamma and the first respondent also has been living happily equally with the second respondent.
24. The Madras High Court in Kuppu-swami v. Alagammal, : AIR1961Mad391 considered the question whether the Courts functioning as matrimonial Courts are not merely to acquiesce in or to support a state of affairs in which the marriage is only in name and its true purpose of connubial living is permanently frustrated. Ananta-narayanan, J., observed:
'The difficulty is whether in the definite future also this state of things is to subsist between the parties without any possibility of beneficial modification. This is all the more urgent in that Courts, functioning as matrimonial Courts, are there to support and to encourage the state of matrimony by all means, and not merely to acquiesce in or to support a state of affairs in which the marriage is only in name, and its true purpose of connubial living is permanently frustrated.'
25. The parties to the marriage never lived together for the past 22 years. They could no more live together. So is it desirable to have the marriage subsisting We have no hesitation in answering that it is undesirable to keep a marriage which has broken down irretrievably to be allowed to be continued. It is a case where the parties buried the marriage long ago. It is too late in the day to revive it.
26. We, therefore, uphold the decree and judgment of the Court below and dismiss the appeal. There will, however, be no order as to costs.