G.J.R. Paul, J.
1. This Second Appeal is by a husband against whom his wife, the respondent had obtained a decree for restitution of conjugal rights on a petition filed by the respondent under Section 9 of the Hindu Marriage Act, before the learned Subordiante Judge of Tiruchirapalli.
2. The appellant married the respondent in 1954 according to Hindu rites and they were living together as husband and wife till 1963. Now, according to the respondent in the year 1963, there was a big fire accident in Uppiliar Street, Dasanallur, Tiruchirapalli and the hut in which she was living with the appellant was also burnt down with the result that they had no place to live in and hence her husband, the appellant, asked her to go and live with her parents and promised to take her back after reconstructing the house and hence she, the respondent went to her parents' house and was living there. But the appellant did not make good his promise to take her back even though he put up a thatched house and began to live there and the appellant has been keeping a concubine by name Angammal in that house and at her instigation and on account of her influence he refused to take her back (the respondent) in spite of mediation by certain persons and in February, 1963, the appellant repaid to her a sum of Rs. 200 which she had borrowed from third parties and lent to the appellant for reconstructing the house and the appellant made her affix her thumb impression on a blank paper representing that it was required as a voucher to evidence the repayment of that money and after obtaining her thumb impression, the appellant deserted her competely and she issued a notice to him on 17th October, 1969 to which the appellant sent a reply containing false allegations and stating that the marriage between them had been dissolved before a panchayat in accordance with the custom of their caste.
3. The appellant's case is that there is no marriage subsisting between him and the respondent for in accordance with the custom in the community a caste-panchayat was convened at which the marriage between him and the respondent was dissolved on 24th March, 1963 and to evidence such a dissolution of the marriage two documents were prepared and signed by both the parties and each was given one of those documents and jewels belonging to the respondent were returned to her as also the amount of Rs. 200/- which she had borrowed from a third party and given to the appellant and after the divorce the respondent has not been living with the appellent but has been living with strangers.
4. Both the Courts below have found that such a custom in the community under which the marriage could be so dissolved had not been established. The learned Subordiante Judge found that there was a panchayat in the presence of the appellant's witnesses at which both the parties agreed to have a divorce and in pursuance thereof Exhibit B-1 has been brought into existence. The learned District Judge, however, did not make any decisive pronouncement with regard to Exhibit B-1, but observed that 'even accepting that Exhibit B-1 was signed by both the parties knowing the contents fully well, in view of the finding that there is no custom of effecting such a divorce in the community, the conduct of the appellant constituted sufficient reason for the wife remaining away from her husband.' In regard to the question as to whether the appellant had withdrawn himself from the society of the respondent for no justifiable or proper reasons the learned Subordinate Judge has observed that 'admittedly the parties have not been living together and the respondent has been living in her father's house while the appellant is living in the same street with one Angammal who is said to be his aunt; and further the appellant had executed a settlement deed in favour of that Angammal dated 1st January, 1960 in respect of a house property wherein he has described Angammal as his concubine and the appellant in the reply notice dated 31st January, 1966 which he sent through his advocate (Exhibit A-2) bad stated that he the appellant had been arranging to marry again and in those circumstances, he, the learned Subordinate Judge considered that the respondent's case that the appellant had deserted her and had denied her conjugal rights was well-founded and the respondent was therefore entitled to the relief claimed and was entitled to restitution of conjugal rights.
5. The learned District Judge found that the appellant had made reckless allegations against his wife in the notice Exhibit A-5 to the effect that she was living in illicit intimacy with known and unknown persons and was living with one Ramaswami but had not substantiated those allegations and it was also brought out in evidence that the appellant was living with one Angammal on whom he settled his property as per Exhibit A-1 and hence the respondent had justifiable reasons for living away from her husband. He has also referred to the willingness expressed by the appellant in Court to live with his wife. All these, according to him, constitute sufficient reasons for the wife to live away from her husband and he therefore held that the respondent was entitled to a decree for restitution of conjugal rights.
6. The finding of both the Courts below is that as 'a custom of the community, whereby such a divorce as has been pleaded in this case and is said to be evidenced by Exhibit B-1, has not been established and that Exhibit B-1 cannot have the effect of severing the marital ties between the appellant the respondent that finding cannot be challenged in this second appeal.
7. Proceeding on the assumption that there was no divorce between the appellant and the respondent, the question is whether the respondent is entitled to a decree for restitution of conjugal rights. The learned Counsel for the appellant has, first of all, contended that the execution of Exhibit B-1 by the respondent would amount to her withdrawing herself from the society of the appellant and as such she would be, disentitled to ask for a decree for restitution of conjugal rights; and secondly there had been an inordinate delay in filing the application under Section 9 of the Hindu Marriage Act for a decree for restitution of conjugal rights and on that ground alone the respondent's petition should have been dismissed.
8. No doubt Exhibit B-1 shows that a document was executed which has been signed by both the parties as well as by the respondent's father by which the parties have agreed to put an end to the marital relationship between them. The question is, whether in view of the fact that the respondent had signed this document, she should be construed as having by the execution of the document and thereafter living away from the appellant, withdrawn herself from the society of her husband. It may be noted that the respondent contended that her thumb impression was obtained on a blank-paper by her husband, the appellant, on the representation that it was to be a receipt for the repayment of the amount of Rs. 200 which the respondent had borrowed from a third party and advanced to the appellant to enable him to build a house. That story of the respondent has been disbelieved by the learned Subordinate Judge. Therefore we have to take it that under this document both the parties mutually agreed to live separately from each other. What would then be the effect of such an agreement between the parties is the question. This document was executed by both the parties and in my view the mere fact that the respondent joined in the execution of this document would not amount to an act of desertion by her of the appellant. The question whether the respondent was living away from her husband for just and lawful reasons has also been considered by both the Courts below and they have answered the question in the affirmative. There is the fact that it was at the instance of the appellant that a panchayat was convened and Exhibit B-1 was executed and after that the appellant had expressed his desire to marry another wife and given a notice Exhibit A-2 to the respondent. Further the appellant had in Exhibit A-5 made reckless allegations against the respondent imputing unchastity to her. Even after the filing of the petition filed by the respondent, the appellant has stated in his evidence that he sent word through a third party expressing his willingness to take her back. But he actually never took her back. Even when this appeal was pending before me, an attempt was made to get the appellant before this Court for the purpose of effecting a reconciliation between the spouses but the appellant world not attend the Court and his counsel represented that the appellant was not willing to take back the respondent. Therefore undoubtedly it is the appellant who had deserted the respondent who has just and lawful grounds to live away from her husband as I have already stated above.
9. The learned Counsel for the appellant contended that the inordinate delay in the filing of the petition for restitution of conjugal rights would disentitle the respondent from getting the relief which she had asked for. The learned Counsel for the appellant has cited the decision in P.S. Rama Rao v. P.R. Krishnamani Ammal : AIR1973Mad279 , in which it has been held that the inordinate delay in filing an application for restitution of conjugal rights would disentitle the husband from getting the relief of restitution of conjugal rights. But then it is from the circumstances of each case that the question of delay has to be decided. Now in this case, before, the learned Subordinate Judge this contention was not at all raised and no complaint was made by the appellant in regard to the delay in filing the application for restitution of conjugal rights. Before the lower appellate Court also this aspect had not been pressed, even though the learned Counsel for the appellant contends that he did raise that point.
10. The question whether there was such delay as would disentitle the respondent from getting the relief asked for by her is not a mere question of law; it is a mixed question of fact and law and it would not be fair now for this Court to allow the appellant to raise that ground as a ground for refusing the relief asked for by the respondent when he had not before the learned Subordinate Judge complained of the inordinate delay; Section 23(d) of the Hindu Marriage Act is to the effect that if the Court is satisfied that there has not been any unnecessary or improper delay in instituting the proceeding and there has not been any of the other grounds mentioned in that section, it shall grant such relief accordingly. Therefore before granting the relief asked for the Court must be satisfied that none of the grounds mentioned in that section which would disentitle a petitioner from getting the relief which she was asked for exist. It is admitted that from the year 1963 the appellant and the respondent have been living separately, while the respondent has been living with her parents the appellant has been living separately with one Angammal.
11. It is incumbent upon the Court to be satisfied that the delay before coming to the Court had been substantially explaine d or was otherwise justified. But While dealing with the question of delay, one should not be oblivious of the background and traditions of Hindu society and the instinct of reluctance amongst; the women to come to the Court and seek redress of their grievance against the husband. Raghavachariar in his Hindu Law (5th Edition at page 1937) has remarked that the words 'unnecessary and improper' having regard to the culture of the orient and the general apathy that is inherent in that culture in the matter of resorting to Court for the remedy of the matrimonial grievance, have to be liberally construed and the delay ought not to be taken serious notice of by the Court.
12. No general rule can be laid down as to in what circumstances delay should lead to the non-suiting of an application under the Hindu Marriage Act, for the very simple reason that the delay may be the result of different causes in different cases, for example there is the delay which is intentional and which amounts to acquiescence in which case assistance should be refused straightway. Then there may be what might be called the delay of optimism, namely, the aggrieved party still hopes very often on a slender basis that things can be patched up and therefore avoids pushing matters to an issue; and where the indications are such the delay should not lead to the unsuiting of the party who after prolonged optimism is disllusioned and goes to seek the assistance of the Court.
13. Then there is the delay of apathy especially on the part of the women, who generally speaking, are more helpless, then the men in the corresponding class and in such cases the party just lets things drift without really grasping the legal consequences and after some years suddenly realises the extremely precarious position to which it has brought itself and then stirs about so as to do something.
14. Then there is the delay caused by the party experiencing, difficulty in gathering sufficient funds for the expenses of initiating and continuing the proceedings.
15. Therefore, the Court should be guided to some extent by what one might call for went of a better term, the humanitarian principle. The Court should also remember that delay, even when it raises the presumption of acquiescence, is liable to explanation and the explanation whatever its worth should be given due consideration.
16. The modern trend is to exercise a liberal discretion in cases where relief would have been refused on the ground of unnecessary delay. All these would show that an opportunity should be given to the party to explain the delay and the Court should consider the explanation and then decide whether the petitioner should be unsuited on account of the delay. Consequently where the party has had no such opportunity to explain the delay as in this case, where the contention that by reason of the delay in filing the petition for restitution of conjugal rights, the respondents should have been refused the relief under Section 23(d) of the Hindu Marriage Act, had not been raised before the learned Subordinate Judge, the respondent cannot be unsuited.
17. With regard to the question as to what is the effect of the document Exhibit B-1 under which both parties agreed to live separately from each other, there is one decision which though not exactly covering the point makes some observations which would indicate that such an agreement would be no bar to the wife's suit for restitution of conjugal rights. That decision is the one in A. E. Thirumal Naidu v. Rajammal : (1967)2MLJ484 .
18. The net result is I find that there are no grounds to interfere with the orders of the Courts below and this Second Appeal is dismissed. No costs.
19. No leave.