V.P. Tyagi, J.
1. This appeal of Gurmej Singh is directed against the judgment of the learned District Judge, Shri Ganganagar dated 23rd August 1974 granting a decree for the restitution of conjugal rights in favour of the wife against her husband appellant.
2. Mst. Jasbir Kaur was married to the appellant Gurmej Singh on 6th January, 1969. She was taken after marriage the village Bhuttawali, where Gurmej Singh used to live, and where she stayed for night. It is said that according the customs prevalent among the parties, she was back to her father's house. According to the averment made by Mst. Jasbir she was again taken to Bhuttawali where she stayed for 3 months. During this brief stay she experienced that she was not welcomed by the parents of the appellant because they were of opinion that the adequate dowry was not brought by Mst. Jasbir Kaur. Gurmej Singh, it appears, in the beginning was willing to bring Mst. Jasbir Kaur from her father's house as apparent from the letter Ex. A. 1(C) written by Gurmej Singh to the brother of Mst. Jasbir Kaur but later on he also fell in line with his patents and withdrew himself from the company of his wife and refused to bring her to his house inspite of all the efforts made by or on behalf of Mst. Jasbir Kaur. She therefore, field an application under Section 9 of the Hindu Marriage Act praying for a decree for restitution of conjugal rights. The suit was filed on 19th August 1972.
3. Gurmej Singh came out with a very strange plea that the marriage was performed on account of fraud & that fraud was detected at the time when the marriage was being solemnised. According to Gurmej Singh when the priest was reciting Ardas he called bride's father's name as Hamir Singh where as according to the appellant the marriage was arranged between him and the daughter of Pratap Singh. He, therefore, immediately protested that the fraud was committed. He denied this allegation that because the dowry was not given by the parents of the bride according to their expectation, the wife was abandoned by a.m. He also took a plea that the age of Mst. Jasbir Kaur was 30 years which was not disclosed to him whereas the marriage of her younger sisters had taken place much earlier. The appellant also pleaded that when the fraud became clear to him he went to the house of his father-in-law and reprimanded them for having arranged the marriage by playing fraud and on this it is said that the father of Mst. Jasbir Kaur assured the appellant that if the articles received in dowry were returned, then they would agree to the dissolution of the marriage.
4. The trial court after recording the evidence on behalf of both the parties came to the conclusion that the plea of fraud taken by Gurmej Singh appears to be a false story based on fraud itself and therefore, passed a decree in favour of Mst. Jasbir Kaur for the restitution of conjugal rights.
5. Learned Counsel for the appellant urged that without framing an issue regarding the allegations of fraud the court could not have decided the plea of the apppellant as itself a fraud and, therefore, the learned Judge has fallen in error in recording a finding that the plea of fraud taken by the appellant was wrong. He also argued that the petition under Section 9 was filed after a long delay of more than 3 years and, therefore, on that ground alone the petition should have been thrown out by the court below.
6. Appellant Gurmej Singh in his written statement admitted the solemnisation of marriage and did not raise any plea that at the time when the marriage was being solemnised he had raised a protest that a fraud had been committed on him. No doubt he took a plea that middle man Nachatrasingh had settled with him that he would be married with the daughter of Pratap Singh and as he was ultimately married the daughter of Hamir Singh the brother of Pratap Singh, it was nothing but a fraud practised on him. He did not take care at the trial to see that a separate issue regarding this plea of appellant is framed. He did not move the court to see that the issue regarding the fraud practised on him may be framed. But from the perusal of the evidence adduced by the parties it is apparent that the parties led their evidence to prove and rebut the question of fraud alleged to have been practised on Gurmej Singh. Gurmej Singh offered himself as his witness and deposed that the marriage was arranged between him and the daughter of Pratap Singh by Nachhatar Singh. His father has also come in the witness box and he has tried to support the story given by Gurmej Singh But in view of the evidence led by Mst. Jasbir Kaur the learned trial court refused to place reliance on the story given out by Gurmej Singh.
7. Praptap Singh has been examined as a witness by Mst. Jasbir Kaur and he has stated that he has one son and one daughter aged 45 years, His daughter was married long back and she has two adult children. Nachhattar Singh has also been examined who is said to be a person playing the role of a middle man in getting this marriage fixed up and he has stated that it was never transpired between him and the father of Gurmej Singh that the daughter of Pratap Singh will be married to Gurmej Singh. Hamir Singh father of the girl has also been examined as the witness of the petitioner and he has categorically stated that he had himself gone with Nachhattar Singh to the house of the appellant to talk to his father about the marriage of his daughter and the marriage was arranged with Mst. Jasbir Kaur.
8. DW. 3 Suchha Singh has no doubt deposed that Gurmej Singh had protested at the time when the Ardas was being recited that he was to be married to the daughter of Pratap Singh But this statement stands belied in view of the circumstances obtainable in this case. If actually a fraud was played on the appellant and if that fraud was detected at the time when the marriage was being solemnized then natural course would have been that the appellant would have withdrawn himself from the ceremony of marriage. But that was not done by him nor does he say that he ever expressed his desire to withdraw from marriage when the fraud was detected by him.
9. Apart from the oral testimony there is a letter on the file Ex. A. 1(C) addressed by the appellant Gurmej Singh to his brother-in law (brother of Mst. Jasbir Kaur) wherein the appellant had expressed his desire to visit his father-in-law's house as and when the leave was sanctioned. If the appellant Gurmej Singh actually felt aggrieved by this marriage on account of the fraud alleged to have been practised on, then he would never have expressed his desire to visit the place were his wife used to live. This letter was written within a month of the date of the marriage. When the letter was put to the appellant he gave a very expansive reply because he could not flatly deny the writing of this letter and said that he does not remember whether be had sent that letter or not. As a matter of face it was not a memory test when he was put a question whether this letter was in his handwriting but that evasive reply was given deliberately to escape the consequences of writing such letter. The circumstances and the evidence produced by petitioner-respondent Mst. Jasbir Kaur amply go to show that the marriage was solemnised between Mst. Jasbir Kaur and Gurmej Singh with the consent of the parties and that after the marriage Gurmej Singh took away toe bride with him to his house but thereafter when the parents of Gurmej Singh found that the dowry was not given by the bride's parents according to their expectation they seem to have persuaded the appellant Gurmej Singh to withdraw himself from the company of his wife. It is true that a specific issue about the fraud practised on the appellant was not framed by the court below but the parties having led their evidence fully understanding the case that they bad to advance before the court & no prejudice has been caused to Gurmejsingh by not framing a separate issue regarding the plea of fraud taken by him. I, therefore, do not find any subs stance in the argument of learned Counsel for Gurmej Singh.
10. As regards the question of delay reference may be made to Section 23(1)(d) of the Hindu Marriage Act which lays down that if there has been any unnecessary or improper delay in instituting the proceeding then court shall refuse to pass a decree in favour of the petitioner. In her petition Mst. Jasbir Kaur has mentioned that she did not want to take the matter to the court and was trying to see that the matter was amicably settled between the parties. But when her husband did not show any inclination to accept her as his life partner, she had to invoke the jurisdiction of this court. It may be mentioned that Gurmej Singh had raised a plea of fraud to get the marriage declared a nullity for which the law prescribes a period of one year if such a relief is sought by one of the spouses. In these circumstances I am inclined to feel that if at all any person who could be aggrieved of, it is the wife whose marriage is sought to be declared a nullity by the husband on the ground of fraud in the proceedings taken by the wife for the restitution of conjugal right. The circumstances of this case speak for themselves and looking to them it is difficult for the court to say that there was unnecessary & improper delay on the part of the petitioner Mst. Jasbir Kaur to move the the court to ask for the relief sought in these proceedings I, therefore, do not find any substance in this objection also.
11. The appeal, therefore, fails and is hereby dismissed with costs. The cost is assessed in favour of the respondent at Rs. 200/-.