1. This is a husband's appeal from the order of the Additional District Judge dated January 31, 1974, refusing him a decree of nullity,
2. The appellant Vinod Chandra Dubey was married to the respondent Shrimati Aruna Dubey on February 17, 1964. They lived together for a brief period of a year or so. On February 2. 1965, the wife left the husband. Thereafter she never came back to him. There is no child of the marriage.
3. On July 16, 1973, the husband brought a petition. He claimed a decree of nullity on the ground of wife's impotency under S. 12(1)(a) of the Hindu Marriage Act, 1955 (the Act) and in the alternative a decree of judicial seperation on the ground of desertion and cruelty under S. 10 of the Act.
4. In his petition the husband said that within a month of the marriage he found that the wife did not have menses at all. She had a shrivelled womb and was thus incapable of producing a child. She was impotent and sexless. These were the allegations of the husband.
5. The wife did not appear to contest the case. She remained ex parte. In ex parte evidence the husband examined himself, his father and mother. The judge accepted their evidence. He came to the conclusion that the wife was impotent at the time of marriage.
6. But the Judge declined to grant a decree of nullity. He was of the view that there was, unreasonable and improper delay on the part of the husband in bringing the petition after 8 1/2 years. He held that as the husband had not explained the delay he was not entitled to a decree of nullity. He dismissed the petition solely on the ground of delay. Now the husband appeals to this court.
7. The sole issue in the appeal is whether in this case there has been such delay as would disentitle the husband from getting a decree of nullity? The wife in this court as in the court below did not appear to contest the case. 1, thereforee, entirely accept, the Judge's finding on the impotence of the wife. On the point of delay I, however, differ from him.
8. First the facts. The evidence shows that the wife lived with the husband up to February 1, 1965. During this period of a year or so it was discovered that the wife did not get menses. It was found that she was incapable of bearing a child. A lady doctor Shahi examined her. She came to the conclusion that the wife will never be able to procreate. The members of the family of the husband suggested to the wife that she should get herself treated. The husband's mother's sister Dr. Miss B. D. Dubey is a gynaecologist and obstetrician. She agreed to treat the wife free of charge. But the wife spurned the proferred aid. She left the matrimonial home in February 1965. For all purposes that was the end of married life.
9. Time rolled on. The husband brought the petition in 1973, that is, after more then 8 years. There is of course delay. But is it so unreasonable and improper that the court should say to the husband: 'We will not -annul your marriage even though you have proved your -case because you have not been able to explain the delay?'
10. Section 23 of the Act reads:
'Decree in proceedings -- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
...... ......... ......... .......... ............ ....... ......... .......... ........... .............. (d) there has not been any contracted or improper delay in instituting the proceedings, and , and in such a case, but not other wise, the court shall decree such relief ,
11. This Section says that the Judge has to be satisfied on a preponderence of probabilities of the matters set out in clauses (a) to (e) of that Section, This is clear from the words 'and in such a case, but not otherwise, the court shall decree such relief'. The Legislature has emphasised that if the court is satisfied of the grounds (a) to (e) then the relief may be granted. This applies to all cases whether defended or not Dastane v. Dastane, : 3SCR967 .
12. Delay, however long in bringing a proceeding under this 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 statute does not merely use the term 'delay'. It also says that the delay must be 'improper' and 'unreasonable'. These are the key words, Delay itself does not amount to approbation. But it is a significant fact. Delay however long, is not in itself a bar in a nullity suit; it is merely a factor in considering any insincerity. The reason for requiring delay to be explained to the satisfaction of the court is that prima facie the mere fact of delay upon a complaint of a matter so fundamental to marriage raises doubts as to the reliability of the evidence of the complainant in support of the complaint. Even though the ground of complaint may be well founded, delay indicates that sense of injury is wanting.
13. The leading case in England is G v. Int (1885) 10 Ac 171. Lord Selborne C. said:
'There may be conduct on the part of the person seeking this remedy which ought to estop that person from having it; as, for instance, any act from which the inference ought to be drawn that during the antecedent time the party has,with a knowledge of the facts and of the law, aprobated the marriage which he or she afterwards seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her, after having received them, to treat as if no such relation had ever existed.'
14. It will be obvious from this that delay in presenting a petition requires Explanationn, since the mere fact of delay suggests that the petitioner was willing to treat the marriage as valid; thereforee, the existence of delay and the Explanationn for it, are part of circumstances to be considered as deciding whether or not there has been approbation. As examples of delay in respect of which the court accepted the petitioner's Explanationn and of cases where delay proved fatal are the following representative decisions.
15. In Adelaide v. Williams, : AIR1968Cal133 the wife sued for divorce after 26 years of the husband's desertion. The reason for the delay was that the wife had to bring up two daughters and a son during those years. The court accepted the Explanationn. Delay was not held to be a bar.
16. In Nirmoo v. Nika Ram, 0043/1968 : AIR1968Delhi260 the wife sought for divorce eleven years after the coming into force of the Act. It was held that there had been no contracted or improper delay in the facts of the case.
17. In Lalithamma v. Kannan, Air 1966 Mys 178 the husband had contracted a second marriage in 1948. The wife brought the petition for nullity in March 1960. It was held that there is no such improper delay as to operate as a bar to the wife being granted the relief of divorce.
18. In Thimmappa v. Thimmaya, Air 1972 Mys 234 the husband first came to know that the wife had committed adultery 4 or 5 years prior to the filing of the petition. The decree of divorce was refused on the sole ground of unnecessary and improper delay.
19. In Becker v. Becker, 1966-1 Wlr 423 there was a delay of 15 years after desertion in the institution of proceedings. The parties lived far away and the marriage had completely broken down. Delay was held to be no bar.
20. It must be borne in mind that entirely different considerations apply with regard to unreasonable delay in cases of desertion than in cases of adultery or cruelty. Delay is less likely to be culpable in cases, of desertion.
21. In Devenport v. Devenport (1965) 1 Wlr 91 the court granted a decree notwithstanding fourteen years delay.
22. In Clifford v. Clifford (1948) 1 All Er 394 the husband delayed for twenty-seven years, for part of the time hoping to overcome the wife's aversion to sexual intercourse and for part of the time for financial reasons. The trial judge found that the non-consummation was due not to willful refusal by the wife but to her uncontrollable fear of childbirth which, causing a contraction of the muscles, made intercourse impossible. The Judge took into account the position of the wife who had enjoyed the status of wife since 1919 and had fulfillled the duties of a wife throughout the best years of her life. He held that it would be contrary to public policy and unjust to the wife to grant a decree to the husband.
23. On appeal Tucker L. J. pointed out that throughout this 'long period' of 17 years the husband was again and again endeavoring to overcome the difficulty of non-consummation and he was seeking to persuade and coax his wife into having 'closer intercourse'. It was not a case in which the husband was acquiescing in his wife's disability, and 'contentedly leading a married life until some incident arose', but was the case of , husband who throughout the 17 years of his married life showed himself dissatisfied with the state of affairs which had existed. Bucknill L. J. and Cohen L. J. agreed that there had been no insincerity. The husband's appeal was allowed.
24. The facts in the instant case are very much alike. The wife lived with the husband for a year or so. Thereafter she left. The appellant has been unable to obtain the ordinary satisfaction of a husband and unable to obtain what he wanted above all things a child. It is to be put in the scales on the husband's side that he did not immediately rush to court but waited and watched. A desire for an. issue or a desire to marry another are legitimate human desires. 'The wife had given him nothing. If the mere circumstance that there has been delay of eight years in this case is sufficient to defeat a decree on the ground of delay it seems to me that every petition based on a charge of nullity would be defeated for in our society husband and wife generally wait and take decisions of going to court when everything else has been tried and failed. It is only when the matrimonial lot becomes intolerable that a party resorts to Court unlike what obtains in the west.
25. In these cases it must not be forgotten that where a home is irretrievably broken and the marriage wrecked the suffering should not further be protracted by dismissing the petition on the ground of delay which would not serve the purpose of either party and cannot in any way help the par-ties to set up a future home of harmony and peace which they could not find in the company of each other in the original home.
26. In Blunt v. Blunt, (1943) 2 All Er 76 Viscount Simon L. C. said:
'To these four considerations I would add a fifth of a more general character which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage which to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the Court to exercise a favorable discretion in many instances where in. an earlier time a decree would certainly have been refused.'
27. These observations were relied upon by H. R. Khanna J. in A V. B, and in the Division Bench ruling by Chhangani J. in Leela v. R. A. Singh, .
28. The test, thereforee, is whether the delay is culpable or to put it strongly whether it is in the nature of a wrong. This is why the modern trend is to exercise a liberal discretion in cases where formerly a decree would have been refused on the ground of unnecessary delay and this change can be explained on account of the changing patterns of social behavior. Clifford v.Clifford 1948-1 All Er 394 (supra) is an example in England. In India Leela v. R. A. Singh (supra) takes very much the same view. The Rajasthan ruling was followed by H. R. Khanna J. in A v. B AIR 1967 Pun 1521 (supre). His decision was affirmed on appeal by a Division Bench of this court in S v. R, : AIR1968Delhi79 . In that case also there was a delay of 6 years. There also impotence age and the social considerations make it contrary to public policy of the husband was the ground. The wife was granted a decree of nullity. The Judges said:
'In considering whether there was contracted or unreasonable delay in seeking the relief, we cannot ignore the conditions of the society in which the parties lived and traditions of the family to which they belong. The Hindu society looked with disfavor dissolution of rnarriages. It was considered as something sinful. It requires courage to face the public odium. We can take judicial notice of the fact that even today considerable Sections of the Hindu society look with disfavor the idea of dissolving a marriage.
29. The Division Bench relied on Clifford v. Clifford, (1948) 1 All Er 394 and Leela v. R, A. Singh, (supra).
30. The courts have refused relief to a party where his conduct shows that be has approbated the marriage or has elected to be bound by the marriage. The usual terminology for this bar is 'insincerity' although it is a much criticised word in its context. 'Estoppel' is also used, as are the words 'unfair, in reference to the parties, 'unjustly', and 'unseemly' from a public point of view. Sometimes it is said that it is 'inequitable' to grant relief, in the sense that it is unjust as between the two parties to the suit'. 'Acquiescence, in the marriage is another phrase employed.
31. But where the main objection of the husband as in this case is to have a child it cannot be said that it is an ulterior motive for getting the marriage annulled. A desire to escape from an intolerable state of things is not an ulterior motive. There is nothing reprehensible in the human desire to have a child so that the line is not extinct.
32. it is true that delay had to be explained by the petitioner before he could be granted relief. The onus of proving that delay is inexcusable is on the respondent to the petition who seeks to get it dismissed, In cases where the respondent is ex parte the court may itself take the objection in obvious cases. But what seems to have happened in this case is that question of delay attracted the attention of the learned Judge when 'he was preparing the judgment and not earlier. He, thereforee, dismissed the petition.
33. Ordinarily I would have remanded the case in the ends of justice. But the facts of the case are such that a further delay will inflict more suffering on the husband who is already a man of 46 years of age. He has filed an affidavit in this court saying that he belongs to a conservative Hindu family and his parents did not favor the idea of going to court.
34. Has the husband disentitled himself by his conduct? That there was passivity on his part it is true. He wavered as to the action he would take to assert his rights after he came to know that the wife had a withered womb. But he is not guilty of any conduct on his part which con be described by any adjectives such as have been used in English cases-'unjust' or 'inequitable'. All that can be said is that he was not prompt, that he was indolent and inert. But it cannot be said that he is disentitled from obtaining relief from the courts.
35. Take the case of the wife. She left the husband in 1965. Thereafter she never came back. She refused to be medically treated in spite of the husband's efforts. He did everything to build a happy home. Must he now be condemned to live a life of celibacy for ever? The wife suffers from a disability and deformity. The husband never knew about it before marriage. After marriage he has done nothing to disentitle himself from getting relief. He made no promise with the wife that he will always live with her even if she has a shrivelled womb. He did not raise any hopes in her for which he can properly be blamed. There is nothing to show that the husband had accepted his lot and had decided not to make efforts to change it for the better. If he waited for some years he did no wrong to the wife of which she can justly complain to the court. This seems to me a case where throughout his married life the husband was complaining and showing himself dissatisfied with the state of affairs which existed. In his affidavit the husband has said that he did not go to court earlier than 1973 as nullity proceedings did not appeal to him and his parents. But from his conduct it cannot be said that he had approbated the marriage.
36. Suppose the wife were to be present in court. Could she say to the court with any show of reason: 'Pray do not grant relief to this man as that will be unjust to me'?
37. In 1973 the husband went to Court. He decided to sue for annulment. He was met with the defense of delay. it was an undefended case. The Judge himself raised the point. That he was entitled to do so is not in doubt. But he gave the husband no opportunity to explain.
38. The husband's Explanationn is that he did not approbate the marriage, There is nothing on the record to show that he recognised the existence and validity of the marriage as to render it most inequitable and contrary to public policy to make a decree of nullity (See G v. M (supra) per Lord Watson). The husband made no surrenders, His life, if anything, was a test of endurance, When it looked as though their lives would continue for ever in this manner the husband decided to take recourse to law, Till then he remained inactive. But there was no acquiescence, There was struggle within him. He was in the quagmire of indecision. His problem was the eternal human problem,
'To be, or not to be-that is the question. Whether 'tis nobler in the mind to suffer. The slings and arrows of outrageous fortune. Or to take arms against a sea of troubles, and by opposing end them?'
Act Iii Scene I.
39. Tradition of the family and custom of the country stood in his way. Many people in our country are afraid to go to law. They think that a law suit would create a local scandal. They suffer in silence. One knows in a great many cases spouses endure with patient hope for many years before taking advantage of the right which is now available to them. (Crump v. Crump, (1957) 107 Lj 377 per Hodson L. J.).
40. It cannot be said that the husband has not come to court with clean hands. A doctrine of unreasonable delay means that a man must come into court with clean hands, that he cannot take advantage of his own wrong, that he cannot rely upon that as a grievance which he has voluntarily accepted with his eyes open. Put briefly a party is not entitled to say to the court : 'give me a remedy for the grievance I have not felt'. (B v. B (1854) 23 Lt (OS) 99
41. As was observed by Hodson L. J. in Llewellyn v. Llewellyn, (1955) 2 All Er 110:
The Court is not to be used as a place to which people can come for redress just when it suits them.'
42. In the same case Denning L. J. after observing that the petitioner 'cannot play fast and lose with marriage in that way' extracted the following passage from Boulting v. Boulting. (1864) 164 Er 1302:
'The petitioner must feel and suffer under the wrong of which complaint is made, and the Court must be satisfied that the remedy is sought as a genuine relief from the pressure of that grievance, Such is the beaten track of the decisions. It is impossible to tread too faithfully in footsteps so wisely placed.'
Jackson has summed up the law in these words:
'The mere fact that a long time has elapsed between the date of the marriage and the date proceedings were commenced is significant but does not of itself constitute a bar. Delay may, however, make it difficult to prove that the non consummation is due to the physical defect or otherwise of the other spouse, the longer a petitioner puts off the bringing of the proceedings. the more inquisitive the Court will be, and the more the Court will require to be satisfied that he is presenting a true case; but, subject to this consideration, it is not so much the time factor between marriage and proceedings that matters as the conduct of the parties during that period end the Explanationns for that conduct. The petitioner must. it is said, evince impatience under a sense of wrong and a reasonable activity in complaint and redress.'
(The Formation and Annulment of Marriage (Second- Edition) page 343),
Section 23 of the Act is based on Section 4 of the English Matrimonial Causes Act, 1950. But the law in England has not stood still. It has marched with the times. In Section 13 (1) of the Matrimonial Causes Act 1973 the law has now been enacted as follows:
'13. (1) the Court shall not, in proceeding instituted after 31st July 1971, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the Court.
(a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
(b) that it would be unjust to the respondent to grant the decree.'
43. The above provision clearly brings out the reason of the rule. Though our Act is differently worded the rationale of the doctrine remains the same.
44. The question whether in a given case, there had been contracted 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 Explanationn for that conduct.'
45. In the circumstances of the case I would hold that there has been no contracted and improper delay. I would, thereforee, allow the appeal and grant a decree of nullity to the husband. As the wife has not appeared there will be no order as to costs.
46. Appeal allowed.