Leila Seth, J.
(1) This is a husband's appeal against the judgment and order, dated 17th February, 1982, passed by Mr. M.A. Khan, Additional District Judge, Delhi. By this order a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (to be referred to as 'the Act'), has been refused.
(2) Mr. Mohinder Pal Singh Randhawa, the appellant, was married to the respondent Gurcharan Kaur on 22nd February, 1959 at Delhi. The marriage was celebrated in accordance with Sikh rites. Thereafter, they lived together and had two children. The first was Mohinder Paul, a son, nicknamed Kukki, who was born on 17th February, 1961 at Delhi, and the second was a daughter named Shamin, nicknamed Sherry who was born on 11th April, 1967.
(3) On 27/28th July, 1981, the husband moved a petition for divorce on the grounds that his wife had committed adultery, had deserted him and was cruel. He asserted therein, inter alia, that Gurcharan Kaur had left the matrimonial home onllthJuly,1971. According to him, they were a normal married couple, when he went in September, 1970 to the United States for purposes of a business collaboration. However, when he returned to India after about ten months on 6th July, 1971, he discovered that she had contracted a relationship with one Mr. Vijay Kumar Prabhakar. This was a gentleman, in whose favor, the appellant had executed a power of attorney for the purposes of running his business, while he was away in the United States of America. On learning the facts, he prevailed upon his wife to mend her ways but she, instead, waked out of the house on 11 the July, 1971. This was without his knowledge and consent and was against his wishes. There are also some other allegations pertaining to her wanting him to leave the joint family; as also not co-operating with him and not accepting the religious sentiments of the Sikhs by insisting on getting her and her son's hair cut.
(4) It appears that after Gurcharan Kaur left the house on I 1th July, 1971, she filed a petition for judicial separation under Section 10 of the Act. However, she subsequently withdrew this petition on 12th October, 1972 as she left India on 10th August, 1972. Thereafter, she moved the Californian courts and obtained an interlocutory judgment dated 23rd April, 1973 dissolving the marriage. A final judgment of divorce was passed-by the court of California on 23rd October, 1973. In 1978, Gurcharan Kaur remarried in the United States of America and is presently living with her husband and Sherry, the daughter, she took away with her when she left the matrimonial home.
(5) Gurcharan Kaur did not appear, despite service. As such the matter was disposed of ex parte. On 11th February, 1982, the husband gave up the ground of adultery pleaded in his petition. With regard to cruelty, the learned Judge held that the cruelty, if any, had been condoned by the appellant and, thereforee, he was not entitled to a decree on that ground.
(6) However, the trial Judge held, that on the basis of oral as well as documentary evidence, the appellant had been able to prove desertion as it was established that the respondent had left the matrimonial home on 11th July, 1971 with the intention of bringing cohabitation to an end.
(7) Despite this, he did not grant a decree of dissolution, in view of Section 23 of the Act) as he felt that it could not be said that 'there has not been any unnecessary or improper delay in initiating the proceedings'.
(8) As such, the sole question in issue in this appeal is, whether there has been such delay as would defeat the rights of the appellant.
(9) The trial court held that the decree of divorce could not be granted as the delay of ten years had not been satisfactorily explained. It observed that, in paragraph 55 of the petition, all that has been stated is merely that the cause of action had accrued to the appellant about six months ago when he learnt that the respondent had re-married 'acting upon the divorce decree granted by the American court......'. The submission of counsel that the divorce petition had not been presented earlier because the appellant had been persuading the respondent to return was unsubstantiated.
(10) Section 23(d) of the Act provides that in a proceeding under the Act, whether defended or not, the Court must be satisfied that there has not been any unnecessary or improper delay in instituting the proceedings before granting relief. In Vinod Chundra Dube v. Smt.ArunaDube : AIR1977Delhi24 , Mr. Justice Avadh Behari Rohtagi has dealt with this aspect of the matter elaborately. He has referred to a catena of cases, bosh in India and abroad, and observed that delay, however long, is not in itself a bar but is merely a factor in considering 'want of sincerity', and often indicates that a 'sense of injury is wanting'. I I. In paragraph 32 of the said judgment he states :
'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'.
(12) It would appear to me, that this is what has happened in the present case also. The proceedings were ex parte. No objection with regard to delay was raised nor brought to the notice of the appellant, and the petition was dismissed on this ground. Normally, the best course in such a matter would be to remand the case, in the interest of justice, so that the appellant might have an opportunity to explain the situation. However, in view of the fact, that the marriage broke up more than twelve years ago and an affidavit has been filed in this court explaining the delay, it would appear to me unnecessary to further postpone the matter by sending it back to the trial court The appellant is 48 years of age and the parties have been living separately since July, 1971, as such) I feel there is no purpose in prolonging the suffering.
(13) The question to be examined, thereforee, is, is there improper or unreasonable delay Does the delay debar the remedy Is the delay in the nature of a wrong
(14) Let us look at the facts. The wife left the husband in July, 1971. She took their young daughter with her. She immediately filed a suit for judicial separation, on 10th August, 1971. She then left India. Thereafter, she withdrew the said petition. She next moved the California courts for granting her a decree dissolving the marriage. A final decree was granted on 23rd October, 1973. In 1978, she remarried in the United States of America. The appellant had been trying his best to get her and the child back by instituting various suits in this country. He tried to trace her out but was unsuccessful.
(15) In the affidavit filed in this Court, he has stated that he could not contest the divorce proceedings initiated in California by his wife, as it was financially not possible for him to do so and the Reserve Bank did not grant him the foreign exchange fur this purpose. However, he tried to contact the respondent subsequently but she could not be traced as she was moving from place to place. He knew the address of her sister, Mrs. Dhanwant Kaur Chahal and her brother, Mr. Sarwan S. Gill, who were living in California. As such, he tried during 1973 to 1977 to contact the respondent so that he could persuade her to return. But the said sister and brother refused to divulge any information as to the whereabouts of the respondent or Sherry. He also requested other relatives and friends in the United States of America, particularly in California, to locate the respondent and their daughter. In this connection he sought the assistance of the Indian Consul in San Francisco. The letters dated 11th September, 1975 and 29th January, 1976 from Mr. O.S. Dhawan, Consul and Head of Chancery at San Francisco have been annexed to the affidavit. A copy of a letter written by the respondent to the said Mr, Dhawan, in response to his letter, has also been annexed. The respondent clearly states therein that she does not wish to discuss anything pertaining to herself or her daughter as these are personal and family matters. She also asserts that she and her daughter are British subjects and she is legally divorced and has custody of her child.
(16) Various letters sent by the appellant's son to the respondent have also been placed on record. In these he requests his mother to return to the matrimonial home. The letters are available as a number of letters/cards came back undelivered because the respondent's address was not known.
(17) In 1977, with the help of the Commissioner of police of the County of the Albany City, California, the appellant was able to ascertain the address and whereabouts of his wife and daughter. He again tried to approach her through his relatives and friends. Mr. Nanihal Singh Dhillon, Mr. Amarjit Singh Randhawa and Mr. Balbir Singh Sandhu were contacted, among others, so that a reconciliation could be brought obout. But the respondent shifted house and the appellant could not reach her at the address he had obtained through the Chief of Police in 1977.
(18) In 1931, Mr. Dharam Pal Singh Dhillon, a resident of California and a friend of the appellant, informed the appellant telephonically that the respondent had married one Mr. Mohan S. Gill. Thereafter, the appellant received a letter dated 30th July, 1981 from one Mr. Naunihal Singh, his cousin, who resides in Union City, California, that the respondent re-married in April, 1978 and is Jiving in Los Angeles with her husband. Mr. Naunihal Singh's letter is on the record. It was only after the appellant came to know that the respondent had contracted a second married that he filed the petition for dissolution of the marriage, after ascertaining her address from her bankers. He verified the address as he was able to get some information from the school where his daughter was studying. This was because her name had been changed from Sharmim Randhawa to Sherry Gill and the step father's name was also indicated therein. This letter dated 17th September, 1981 and the annexure containing this information have also been filed.
(19) It further appears, that the appellant's son who is now studying medicines at Boston University also made some efforts to bring about a reconciliation between his parents but without success. He has filed an affidavit in this connection.
(20) In the circumstances, it would appear to me that there has been no unnecessary or improper delay in instituting the proceedings. The conduct of the parties as is borne out from the facts indicates that the appellant was all along anxious to get his wife and child back and was making all efforts to that end. The respondent on the other hand was avoiding him. She left the country clandestinely carrying their daughter Sherry with her and then moved from place to place without informing or disclosing her address to him. It was only when the appellant came to know that the respondent had remarried and there was no hope at all of any reconciliation that he filed the divorce proceedings.
(21) For the reasons outlined above, I allow the appeal and grant a decree of dissolution on the ground of desertion. As the matter is ex parte there will be no order as to costs.