1. This appeal by Gurmel Singh is directed against the order and decree of the learned Additional District Judge, Sangrur whereby his petition under S. 13 Hindu Marriage Act, 1955 ('the Act' for short) has been dismissed.
2. Briefly stated, the facts of the case are that Gurmel Singh (hereinafter referred to as petitioner) filed a petition under S. 13 of the Act for dissolution of his marriage with Smt. Bharpur Kaur on the twin grounds of cruelty and desertion. He alleged that the parties were married in February, 1974. They lived and cohabited together for about 1 1/4 years of the marriage. Unfortunately, the marriage was not a success. The respondent-wife was a temperamental lady. She was given to quarrel and using abusive language towards him and other members of the family. She was the only daughter of his father and was too much attached to him. She returned to his house after a stay of about 2 months with her father in April, 1975. A few days thereafter she expressed a desire to visit her parents. Her father came to the petitioner's house and insisted on taking her to his village. The petitioner did not agree to this suggestion. Her father got annoyed and went away, threatening the petitioner. He thereafter obtained warrants under S.97 Criminal P. C. from Criminal Court at Malerkotla. In pursuance of these warrants the house of the petitioner was raided and the respondent was taken away by the Police and produced in a Court at Malerkotla. Thereafter the respondent has been living with her parents and she has not come back to reside which with him. She has deserted him without any rhyme or reason. She gave birth to a male child in August, 1975, but, unfortunately, it died. The petitioner was not informed about the birth and death of the child. The petitioner made various efforts to bring her back and in fact, reconciliation was made through relatives. He took panchayats, but with no results.
3. The respondent-wife appeared and resisted the petition for divorce and in her written statement, she denied the allegations made by the petitioner. She, rather, alleged that the petitioner had been maltreating her. He did not like her, because she was not beautiful and was an illiterate lady. The petitioner was not satisfied with the dowry given by her parents. He is a diploma-holder in Mechanical Engineering. He made unreasonable demands and gifts from her. She was even given beating by the petitioner at the instance of his mother. Her father tried to settled her. He made efforts at reconciliation by taking Panchayats, but in vain. The pleadings of the parties led to the framing of the following issues:-
1. Whether the respondent has deserted the petitioner for a continuous period of more than two years, prior to the presentation of the present petition?
2. Whether the petitioner was guilty of cruelty to the respondent as alleged in paras 4 and 7 of the written statement
3. Whether the petitioner is mala fide?
4. The learned trial Judge, after carefully considering the analysing the evidence of the parties, recorded his findings. He decided issued 1 and 2 against the respondent and in favour of the petitioner. He, however, dismissed the petition on the ground that it had been filed after an unexplained and inordinate delay of more than 6 years. Hence, the husband has filed this petition.
5. The learned trial Judge has given a finding on the basis of the evidence recorded that the petitioner had not been cruel to the respondent. In fact, there was no reason for that. The petitioner had seen the respondent before her marriage. He also knew that she was illiterate. The learned trial Judge also held that there was no cogent evidence to hold that the petitioner had ever demanded dowry from the respondent. The learned Judge came to the conclusion that the respondent had deserted the petitioner for a continuous period of more than 2 years prior to the presentation of the divorce petition. The findings are based on the evidence. the learned Judge has carefully considered and analysed the evidence of all the witnesses. Shri G. C. Gar, Advocate, learned counsel for the respondent, has not been able to point out any infirmity in the appreciation of the evidence by the learned trial Judge. The findings on issues 1 and 2 are affirmed.
6. The learned Judge has non-suited the petitioner on the ground of delay in filing the petition. This conclusion cannot be sustained. In cases relating to desertion the consideration about delay in in filing divorce petition on the grounds of cruelty and adultery is not applicable. In cases of divorce on the grounds of adultery and cruelty, delay in filing a divorce petition leads to irresistible inference that the same have been condoned, but inaction in presenting divorce petition promptly is not fatal when the ground of divorce is desertion. In such cases, the husband may be slow to take advantage of a right which accrued to him after lapse of two years of his desertion by the other spouse. In such cases, the petitioner should be asked to explain as to why he had delayed the filing of the petition. He should be given opportunity to explain this fact. If this is not done, then his petition cannot be thrown out on this score. Lord Denning M. R. with his usual felicity, observed in Becker v. Becker (1966)1 All ER 894, as under:-
'The husband was not asked why he had delayed for so long. He was not asked why at this stage he wished for a divorce. He was not given an opportunity of explaining. We are told now that the reason is because he wishes to marry his cousin who is in Germany
The Commissioner was much influenced by the passage in Raydon on Divorce (9th Edn.) o. 269 dealing with unreasonable delay. That, however, is dealing with cases of adultery or cruelty. Desertion is different. Our attention has been drawn to what Hodson, L. J., said in Crump v. Crump (1):--
'In dealing with the question of desertion it seems to me entirely different considerations apply and the fact that a person does not, immediately the three years lapse, take proceedings for divorce is not of itself a matter calling for adverse criticism at all. In fact one (1) (1957), unreported, would regard it rather from the opposite point of view. It would in many cases, and perhaps in most cases, be praiseworthy if a person who had been deserted by his spouse did not at the first possible moment when the law allowed it petition for divorce. One knows in a great many cases such spouses endure with patience hope for many years before taking advantage of the right which is now available to them'. So delay in desertion cases is not on the face of it to be regarded as a reason for refusing a decree. If it went on for a great number of years and was completely unexplained. It might be a ground for refusing divorce; but this is not such a case...........'
This exposition of law was approved and accepted by a Division Bench of the Karnataka High Court in Rukmini v. Srinivasa, 1984 Hindu LR 210: (AIR 1984 Kant 131). It was observed that in cases of divorce on the ground of desertion, a spouse filing a divorce petition without undue haste is to be congratulated for enduring patience and hoping to join each other rather than being condemned. It is all the more so in the spouses in Hindu Society, having regard to our traditions and customs. A contrary view has been taken by a learned Single Judge of the Rajasthan High Court in Sharda v. Nathmal, 1982 Hindu LR 576. But it seems that the observations of Lord Denning in Becker v. Becker ((1966)1 All ER 894) (supra) were not brought to the notice of the learned Single Judge and he has not been properly assisted. Shri Garg, learned counsel for the respondent-wife has also relied upon a decision of a learned Singhle Judge of this Court in Baldev Kaur v. Sohan Singh, decided on November 22, 1983. (First Appeal Order No. 178-M of 1982) whereby a divorce petition had been dismissed, because it had been filed after more than 21 years of the desertion. In the present case, the divorce petition was filed only after about 6 years of the departure of the wife from the matrimonial home. In the present case, no question was put to the petitioner-husband as to why he waited for all these years. In fact, he had led evidence that he took a Panchayat to his in-laws for the last time in 1980. To my mind, this evidence has been rejected by the learned trial Judge on untenable grounds. He has not found any intrinsic infirmity in the evidence of the witnesses to this effect. He has not relied upon this evidence. He has discarded this evidence only on general and vague grounds. The present petition was filed in the year 1981, within a few months of the last Panchayat taken by his in-laws. It cannot, therefore, be said that there was any delay in filing the divorce petition.
7. In the result, I allow this appeal; set aside the order and decree of the learned trial Judge and allow the petition and pass a decree for divorce. However, there will be no order as to costs.
8. Appeal allowed.