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Promod Kumar Anand Vs. Daisy Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 30 of 1962
Judge
Reported inAIR1965MP151; 1965MPLJ254
ActsDivorce Act, 1869 - Sections 14
AppellantPromod Kumar Anand
RespondentDaisy Bai and anr.
Advocates:A.D. Deoras, Adv.
DispositionAppeal partly allowed
Cases ReferredAmmanna v. Ammanna
Excerpt:
- - it was held that although the husband bad been guilty of culpable delay, he had not been guilty of acquiescence in the wife's adultery. 5. when a petition is filed under section 10 of the indian divorce act and the court is satisfied on the evidence that the petitioner's case of adultery is proved and it does not find that the petitioner has been, in any manner, accessory to or conniving at the adultery or has condoned tbe adultery complained of, it shall pronounce a decree declaring such marriage to be dissolved. the purpose of the law in laying down discretionary bars to divorce like delay is to encourage lawful wedlock and to set its face against adultery......the husband bad been guilty of culpable delay, he had not been guilty of acquiescence in the wife's adultery.applying the principles laid down by viscount simon, l.c., in blunt v. blunt, 1943-2 all er 76 (78); and distinguishing lowe v. lowe, 1952-2 all er 671, a decree nisi was granted. the reasons assigned were that it was in the interest of the youngest child that the wife should be free to marry the co-respondent, and that there was no real prospect of reconciliation between the husband and the wife, and his interest and those of the woman named in the husband's discretion statement were identical, viz., that their position should be regularised by their being allowed to marry. in our opinion, 1956-3 all er 952 (supra) is not apposite to the present case. here, the first.....
Judgment:

Shiv Dayal, J.

1. This is an appeal under Section 55 of the Indian Divorce Act from a petition under Sections 10 and 34 of that Act, made by Promod Kumar Anand (appellant). The petition was dismissed by the District Judge, Raipur.

2. The parties are Christians. The petitioner stated that he was married to Daisy Bai on 11 June, 1945. After the marriage, they were together for about three months. Then the wife went to her village Jora, but thereafter did not return to the petitioner and deserted him without any just or reasonable cause. Later on, it was revealed that Daisy Bai had been living in adultery with Prema Pawar (respondent 2) and was pregnant. At the time of the petition she was living openly with him as his mistress. Both the respondents denied the allegations relating to adultery and pre-conception of a child. She stated that she gave birth to a child who was conceived from her husband, Promod Kumar, after the marriage. After filing the written statement, they did not take part in the proceedings which were ex parte.

3. The District Judge found that the petitioner and his wife were not living together since 1945. From the Register of Birth and Deaths of the Arang Police Station (Ex. P-1), it was found that she gave birth to a male child named Watson on 16 December, 1945. Both the respondents were living together for 10 years in village Jora. Daisy Bai was ex-communicated from the Christian Council as she had begotten two children from persons professing some faith other than the Christian faith. The District Judge dismissed tbe application holding that adultery was proved, but there was an inordinate delay in making the petition. The petitioner had come to know of tbe alleged adultery as far back as in September, 1945, but he filed this petition in 1961 after a delay of about 16 years

4. The only question in this appeal is whether on the ground of delay this petition has been rightly dismissed, other facts having been found in favour of the appellant. In Purton v. Purton, 1956-3 All ER 952, tbe facts were that the parties were married in 1927 and four children were born to them between 1927 to 1944. In May 1946, the wife left the matrimonial home, taking with her the two younger children and went to live with the co-respondent as his wife. The husband continued to provide a home for and look after me two elder children. He hoped that the wife would return to him, but in 1951 he gave up that hope. In 1955, the husband became desirous of marrying another woman who was free to marry him. In December 1955, be presented a petition for divorce on the ground of the wife's desertion and adultery. It was held that although the husband bad been guilty of culpable delay, he had not been guilty of acquiescence in the wife's adultery.

Applying the principles laid down by Viscount Simon, L.C., in Blunt v. Blunt, 1943-2 All ER 76 (78); and distinguishing Lowe v. Lowe, 1952-2 All ER 671, a decree nisi was granted. The reasons assigned were that it was in the interest of the youngest child that the wife should be free to marry the co-respondent, and that there was no real prospect of reconciliation between the husband and the wife, and his interest and those of the woman named in the husband's discretion statement were identical, viz., that their position should be regularised by their being allowed to marry. In our opinion, 1956-3 All ER 952 (supra) is not apposite to the present case. Here, the first consideration that prevailed there does not arise, although it is true that now there is no hope of reconciliation between the husband and tbe wife.

5. When a petition is filed under Section 10 of the Indian Divorce Act and the Court is satisfied on the evidence that the petitioner's case of adultery is proved and it does not find that the petitioner has been, in any manner, accessory to or conniving at the adultery or has condoned tbe adultery complained of, it shall pronounce a decree declaring such marriage to be dissolved. But the proviso to Section 14 enacts that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, in its opinion, been guilty of unreasonable delay in presenting or prosecuting such a petition. Although the Limitation Act has no application to divorce law and no period of limitation is prescribed for filing a petition for divorce, yet, the very first thing which the Courts look at is, whether there has been any delay. Lapse of time by itself is no bar to relief but an unreasonable delay should put the Court on guard to enquire into the motive for the belated petition, In Johnson v. Johnson, 1901 P. 193 Jeune, P. emphasised that the Courts must insist on steps being taken promptly, if at all. The purpose of the law in laying down discretionary bars to divorce like delay is to encourage lawful wedlock and to set its face against adultery. In Brougham v. Brougham, 1895 P. 288 a decree nisi was rescinded on the ground that a delay of two years was unreasonable when the husband had known about his wife's adultery

6. However, it is always open to the petitioner to explain the delay. In many cases, poverty has been accepted as sufficient explanation. In Harrison v. Harrison, (1864) 33 LJP 44, 20 years' delay by wife was condoned by the Court on her establishing that it was due to her poverty. In Geyer v. Geyer, ILR (1947) Lah 867: (AIR 1949 Lah 34) (FB), it was held that long delay owing to want of funds must be excused. It is otherwise a material matter which unexplained would lead to the inference of insincerity, acquiescence or condonation.

7. From what we have stated above, it seems, to us clear law that (1) The Court will be entitled to presume connivance, condonation or at least insincerity in tbe petitioner's complaint !f he chooses to slumber in sufficient comfort over his injury. (2) The Court should be strict on the question of delay, the reason being that it is a terrible thing that people should be going about the world, neither married nor non-married, possibly liable to contract illegal matrimony and certainly exposed to temptation to commit adultery. (3) Inordinate delay means acquiescence in adultery of the wife, where the husband took no steps originally to free himself and to let the respondent and the co-respondent contract a lawful union. (4) Delay which is not unreasonable, culpable or from which it would appear that the petitioner is insensible to his injury should, as a rule, be accepted; for instance, where delay is occasioned by an honest attempt to reclaim the guilty spouse from his evil ways, or where delay is occasioned by a bona fide mistake of law. (5) Poverty is sufficient explanation for delay, but it must be proved that the delay is really due to poverty.

8. In Arone v. Kali, 8 Ind Cas 759 (Mad) the Court refused to condone the delay of 8 years on the ground of want of means, because there was only the statement of the petitioner in support of his poverty. In Manohar Bapuji v. Chandrawati, AIR 1936 Nag 26 (SB) it was 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 (SB) it was observed 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.

9. Applying the above principles to the present case, we find that there is a delay of about 16 years in the presentation of the petition. This delay necessarily raises a presumption that the petitioner acquiesced in the adultery of his wife. He took no steps originally to free himself and let the respondent and the co-respondent contract a lawful union. But we also find that sufficient opportunity was not given to the petitioner to explain the delay. No issue was framed. The learned District Judge, in his final order, says:

'The ground of poverty put forward by the petitioner also does not appear to be on any justifiable basis.'

It seems to us that the question of delay attracted the attention of the learned District Judge when he was preparing his judgment but not earlier. We, therefore, think that ends of justice require a remand.

10. The appeal is partly allowed. The judgment and decree passed by the District Judge areset aside. The case shall go back to him for deciding the question of delay in the light of this judgment, after giving the petitioner an opportunity tolead evidence.


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