1. This appeal is directed against the judgment of Ganssaa. J. in C. M. S. A. No. 151 of 1969 and arises under the following circumstances : Lakshmi, who is the appellant before us, married Alagiriswami Chettiar, the respondent herein, in the year 1948. At the time of her marriage Alagiriswami Chettiar had a first wife living. After the second marriage both the wives of Alagirisami Chettiar were living with him under the same roof, and each of them begot children to him. The appellant begot two sons and one daughter by AlagiriswamiChettiar and it is said that the eldest son is now 23 years old, the second son is 18 years old and the daughter is 14 years old. Subsequent to the second marriage, the Hindu Marriage Act, 1955, came into force on 18-5-1955. Two of the children of the appellant were born after the commencement of the Act. In 1961, the appellant filed a petition before the Principal Subordinate Judge, Madurai, under Section 13(2)(i) and Sections 26 and 27 of the Hindu Marriage Act, for a decree for divorce. The sole ground relied upon in the petition was that another wife of the husband married before the commencement of the Act was alive at the time of the solemnisation of the marriage of the appellant. The provocation for filing the petition was, according to the appellant, a deterioration in the relationship between her and her husband in the year 1961. Admittedly, she was living happily with him for 13 years after her marriage and 6 years after the coming into force of the Hindu Marriage Act.
The relief given under Section 13(2) is an unusual relief intended to meet a peculiar situation. With the coming into operation of the Hindu Marriage Act, bigamous marriages contracted after the Act became null and void under Section 11 read with Section 5(i) of the Act. There was therefore no need to ask for dissolution of such a marriage, which was ab initio void. But, then there were bigamous marriages which had been contracted prior to the coming into force of the Act and those marriages were valid in the eye of Hindu Law, which recognised polygamy. It was to meet the difficulties of parties to such polygamous or bigamous marriages that the legislature enacted Sub-section (2) of Section 13 providing that in case of any such marriage the wife should have the right to seek dissolution of her marriage without proving adultery or cruelty or any of the other matrimonial offences prescribed by the Act. In order to prevent abuse of the relief admissible under the Act, the Legislature took care to provide in Section 23 that the proof of the available, grounds was ipso facto not sufficient to get the relief, but the court must be satisfied among: other things that the petition was not presented or prosecuted in collusion with the respondent, that there was no unnecessary or improper delay in instituting the proceedings and there was no other legal ground why relief should not be granted. Only if the court was so satisfied, but not otherwise, the court shall decree such relief.
As pointed out in Mullah's Hindu Law, 13th Edn. page 691, this salutary provision was not available in the Bombay Hindu Divorce Act, 1947, which enabled the first wife to sue for divorce on the ground that her husband had married again before the coming into operation of that enactment. In a case decided under that enactment (Chandrabhagabai v. Rajaram, : AIR1956Bom91 ) the first wife hadcontinued to live with the husband for tea years after his second marriage and had children born of him after the second marriage and her petition for divorce was allowed though it was resisted by the husband on the ground of condonation and on the ground that it would be inequitable under the circumstances to grant a decree for divorce. The learned author adds
'The language of the section did not permit of delay being pleaded in bar of the relief. Under the present sub-section it would be competent to the court and even necessary and incumbent on it to consider in any case whether there was any unnecessary or improper delay in instituting the proceedings as laid down in Section 23(1)(d) of the Hindu Marriage Act.'
The rationale behind the rule, that there should not be any unnecessary or improper delay is that a true balance must be maintained between respect for the sanctity of marriage and the social considerations which make it necessary in public interest to dissolve the marital tie under certain circumstances. It is therefore necessary that before the court grants the relief it must be satisfied that the delay has not been due to any such reason as acquiescence in the injury or indifference to the same or some wrong motive for seeking relief after sleeping over the matter for an inordinate period. Admittedly, in this case, the appellant was living happily with the respondent for a long number of years and had presented him with a number of children who are grown up and most of whom are of marriageable age. She must have become aware of the remedy provided by Section 13(1)(i) of the Act even in 1955. But she did not choose to seek that remedy. It is not her case that she was unaware of the remedy prescribed by Section 13(2)(i) of the Act The only explanation furnished by her for the delay is that in 1961 she fell out with her husband, though she admits that for a number of years previously she had been living in amity with him and the children she begot to him as well as with the first wife and her children. The question is whether it would not be opposed to high social purpose that the appellant should be permitted after so many years of married life to seek divorce, not on the ground of adultery or cruelty or any other ground which in the eye of law justify a dissolution of the marriage or divorce, but on a ground which was available to her right from the date of the commencement of the Act in 1955 and which she did not choose to invoke all these years. Mr. Rajagopala Iyer, learned counsel for the appellant, contended that there was no occasion for her to invoke this ground till 1961, because she had been living happily with her husband and it was not necessary for her to invoke that ground. We are unable to accept this argument. This argument, if accepted, would imply that the wife can keep thisBrahmasthram in reserve, live happily fox a number of years with her husband, beget a number of children, and then, after the lapse of a quarter of a century, use this Brahmasthram at the slightest provocation against her husband. That is why the Legislature has in its wisdom provided in Section 23 of the Act that the court shall not decree the relief unless it is satisfied under Clause (d) that there has not been any unnecessary or improper delay in instituting the proceeding. We think that the delay that the appellant has been guilty of has been both unnecessary and improper and if she is granted the relief she is now praying for, it will have an unsettling effect upon her matrimonial home and upon the children she has begotten. The expression in Clause (d) of Section 23, there has not been any unnecessary and improper delay in instituting the proceeding means that the appellant should have invoked the ground under Section 13(2)(i) without unnecessary or improper delay after the coming into force of the Act. It may be that having regard to the conditions of Hindu Society and the ideals of Hindu womanhood, a wife out of a sense of delicacy may commit some delay in instituting proceedings of this kind. Such a delay would not be regarded by the court as an unnecessary or improper delay. But where after becoming aware of the ground, she chose not to invoke it in proceedings for divorce, but to cohabit with her husband and beget children and live merrily in her husband's home for a number of years and then to invoke the ground because of a misunderstanding which arose long after she had entered into matrimony, the court would have no option but to regard the delay as unnecessary and improper. Both the Subordinate Judge and the District Judge of Madurai erred in holding that the appellant had given satisfactory reasons for the delay. We agree with the learned second appellate Judge and hold that inasmuch as the delay committed by the appellant is both unnecessary and improper, the law disentitles the appellant to any relief. Consequently, the Letters Patent appeal is dismissed, but in the circumstances without costs.