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Alagarswami Chettiar Vs. Lakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1972)1MLJ187
AppellantAlagarswami Chettiar
RespondentLakshmi Ammal
Cases ReferredIn Leela v. R.A. Singh
Excerpt:
- .....concerned, such as the other wife or wives of the husband and the prospective husband of the wife seeking divorce. in this connection the reasonable possibility of eventual reconciliation, the effect of the continuance or dissolution of the marriage on the other wife or wives, the manner in which the marriage life was led by the parties in the past, circumstances responsible for the break-down may be approximately considered. incidentally, we may observe that considerations of condonation or acquiescence should not by themselves be of great relevance in determining the culpability of the delay.6. the principles are thus fairly clear and the question for consideration is whether the delay in instituting the application for divorce in this case can be said to be unnecessary or.....
Judgment:

S. Ganesan, J.

1. Thiru Alagarswami Chettiar the husband has preferred this appeal against the order in CM.A. No. 15 of 1968 on the file of the learned District Judge of Madurai.

2. Srimathi A. Lakshmi, the respondent herein is the wife of the appellant and she had filed O.P. No. 143 of 1961, out of which the appeal arises, for a decree for divorce against the appellant under Section 13(2)(1) and Sections 26 and 27 of the Hindu Marriage Act, 1955. The respondent herein is admittedly the second wife of the appellant, and it is not disputed that the marriage between the parties took place before the Hindu Marriage Act of 1955, came into force and that, on the date of the application for divorce, the first wife of the appellant was admittedly living. Nor is it disputed that, by virtue of the provisions of Section 13(2)(i) of the Hindu Marriage Act, 1955, the respondent Was entitled to present a petition for the dissolution of her marriage by a decree for divorce on the ground that the first wife of the appellant who had been married to the appellant before the commencement of the Act was alive at the time of the solemnization of the marriage of the respondent with the appellant.

3. The only question which arises for consideration in the appeal is whether the respondent is disentitled by virtue of the provisions of Section 23(1)(d) of the Act from asking for a divorce because of any unnecessary or improper delay in instituting the proceeding for divorce. The expression ''unnecessary or improper delay' has always been interpreted as culpable delay; and as pointed out by Mulla in his commentary on the Hindu Marriage Act, though the Court under the present Section (Section 23) has no discretion in the matter and is bound to refuse relief where there is unnecessary or improper delay in instituting proceeding and is not empowered to condone the same, it would be seen that the absolute bar would be permitted to operate only in cases of culpable delay. The Court will be inclined to excuse the delay for various reasons i.e., want of means and poverty on the part of the petitioner, her regard for the feelings of the other members of the family and the honour and prestige of the family, her fear of scandal and desire to avoid a final break-up ,if possible, and her expectation that there were reasonable chances of reconcilation.

4. Admittedly, a wife would be entitled to claim a decree for divorce once it is shown that her case falls within the four corners of Section 13 of the Act; but it is obvious that she is bound to make her choice at the earliest opportunity available after the Hindu Marriage Act had come into force and that the Courts will not permit her to postpone her decision to exercise the option indefinitely. As observed by Hodson, L.J. in Llewellyn v. Llewellyn (1955) 2 All. E.R. 110, the Court is not to be used as a place to which people can come for redress just when it suits them, and if the learned Judge who tries the case comes to the conclusion that a weapon is being held in reserve over the head of the spouse who is affected, the Court is entitled in the exercise of its discretion to refuse to accede to the prayer of the petition. That was a case where the divorce petition on the ground of cruelty was presented after a considerable time.

5. It is also well settled that the Court cannot be used as a place to which people can resort for redress of their private wrongs unconnected with the breach of matrimonial duties. As observed in King v. King I.L.R. (1930) Cal. 215.

The Court is not to be used merely as an engine for enabling a husband or a wife to retaliate on the other by reason of some injury which has been done outside the matter of violation of conjugal rights of the parties as such. In this particular case one cannot help feeling that these proceedings would never have been instituted by the husband if the wife had not irritated him by the action which she took in connection with his furniture.

In Leela v. R.A. Singh , the law is stated thus :.the Courts may and should consider the following factors which are enumerated illustratively and not With any claim to exhaustiveness.

1. the date of the actual and constructive knowledge by a wife-petitioner of her right to claim divorce under Section 13(2)(1) and the extent of delay in instituting the complaint after such knowledge;

2. presence or absence of any sufficient or reasonable explanation for delay referred to in no-1.

3. birth of children after the Act and particularly after awareness of a right to claim divorce and consideration of the interests of such children ;

4. conduct of the wife seeking the divorce in relation to proceedings by the other wife or wives for divorce ;

5. consideration of the interests of the petitioner, respondent as also of other persons concerned, such as the other wife or wives of the husband and the prospective husband of the wife seeking divorce. In this connection the reasonable possibility of eventual reconciliation, the effect of the continuance or dissolution of the marriage on the other wife or wives, the manner in which the marriage life was led by the parties in the past, circumstances responsible for the break-down may be approximately considered. Incidentally, we may observe that considerations of condonation or acquiescence should not by themselves be of great relevance in determining the culpability of the delay.

6. The principles are thus fairly clear and the question for consideration is whether the delay in instituting the application for divorce in this case can be said to be unnecessary or improper in the light of the principles laid down by these decisions.

7. It is contended on behalf of the appellant that the respondent had filed the application for divorce in order to marry one Soosaimanickam who was a co-teacher along with her in Malaipatti in the year 1954 and with whom she is stated to be in love. Reliance is placed upon Exhibit B-7 a letter dated 9th June, 1965, which is admittedly proved to have been written by the respondent to Soosaimanickam. The letter is in Tamil and the relevant portions freely translated in English read thus:

'To my dear custodian,

Writing this letter with love after prayers. At what time did you reach your place on that day. Even though only three days have elapsed, I am craving to see you again. I want to get a certificate. Can you come earlier than Saturday and Sunday? Please look after your health and take milk twice a day. Please don't get worried but pray. If God is with us who can oppose us. Pray hard. Good fortune will come to us. Please bring some paper and Chinnalampatti saree I will be expecting you or your letter on Saturday or Sunday.

Your loving,

A. Lakshmi.

8. The letter does not appear to be so innocuous as suggested by the learned Subordinate Judge; and the words 'If God is with us who dare oppose us; pray well, good fortune will come to us; lovingly yours' and her desire and anxiety to see him frequently and the language used by her in the letter suggest that the respondent should have been in love with Soosaimanickam. The only point that has to be taken notice of is that the letter is dated 9th June, 1965 and had been written long after the petition for divorce had been filed by the respondent. It has also to be remembered that, in the letter Exhibit B-3 admittedly written by the respondent to the appellant long before the application for divorce was filed, the respondent has referred to Soosaimanickam as a 'great and learned man'. The letter however suggests that tongues have been wagging adversely in the locality that the relationship between the respondent and Soosaimanickam was not platonic; and the respondent complains that her taking gifts from Soosaimanickam had led to unfounded allegations of intimacy between her and Soosaimanickam.

9. The appellant suggests that the respondent had been attempting to get herself converted to Christianity with a view to marry Soosaimanickam and relies upon the letter Exhibit B-6 which appears to have been written by the respondent to Soosaimanickam in which she had expressed her resolve to embrace Christianity and had requested Soosaimanickam to go with her to Velankanni for the purpose of baptism or to send a reliable person for that purpose. The letters Exhibit B-1 and Exhibit B-2 which are proved to have been written by an elderly gentleman from Velankanni to the respondent in May and June, 1961 show that she had been to Velankanni subsequent to the letter Exhibit B-6; and there is a recital in that letter that she had not obtained baptism and that she was the object of love and was the child of the Holy Lady who is enshrined in the Church at Velankanni.

10. On a consideration of the evidence and the circumstances in the case, I am satisfied that the respondent had no intention of marrying Soosaimanickam in the year 1961, It is not improbable that the respondent was moving closely with Soosaimanickam during that period as a disciple towards a guru and was taking gifts from the said Soosaimanickam, that the local people set afloat rumours that she was in illicit intimacy with Soosaimanickam, that the appellant shared the said suspicion along with the public and that misunderstanding had consequently arisen between the appellant and the respondent. It also sounds probable that, as a result, the respondent wanted to embrace Christianity and went over to Velankanni for that purpose, but the letters Exhibits B-1 and B-2 reveal that the author of those letters Kulandai-sami Pillai, an elderly gentleman, had discusssed with her, her estrangement with the appellant and advised her to live with the appellant and her children peacefully. Exhibit B-2 which is dated 15th June, 1961 shows that the respondent had written to the said Kulandai-swami Pillai that she had joined her husband and was living with him and her children. It appears probable that subsequent to the institution of divorce proceedings, the respondent's spritual reverence for Soosaimanickam gradually lost its transcendant character and degenerated into terrestial love and that both of them contemplated marriage if the divorce proceedings ended successfully. But I am unable to say that she had filed the divorce proceedings with the object of marrying Soosaimanickam.

11. The question however is whether the respondent had shown that the delay in presenting the application is neither unnecessary nor improper. The evidence of the respondent on this subject is to the following effect. She started a private school in Kannarpatti in the year 1957, and was managing the same. She used to give her salary to the first respondent (appellant) every month on his complusion and pressure and the balance which remained with her was not sufficient for her maintenance. She purchased jewels worth 3! sovereigns in May, 1959, with her salary and a watch in 1961, and the appellant quarrelled with her because she had purchased jewels without his knowledge. Ill-feelings arose between her and the appellant in the year 1961 because in that year, she refused to transfer the right of management of the school to the appellant though he compelled her to sign a petition of resignation of the post of manager and an application for transfer of the management. After the appellant became manager in March, 1961, he did not give even a pie from her salary and she was compelled to sign the salary acquittance register admitting receipt of the salary. On 28th September, 1961, she told the appellant that she would not sign the acquittance roll unless he disbursed the salary to her for the month of September, 1961, and also threatened to report the matter to the Deputy Inspector of Schools if he compelled her. On that day he returned her wrist watch and jewels, but beat her that night and drove her from his house. Thereafter she lived separately and was attending the school till 13th October, 1961, and the salary for September, 1961, was not given to her till that day. On 30th October, 1961, the appellant removed her teacher's certificate and stated that she should not attend school. After that she had filed this application.

12. The Courts below have taken the view that the reasons given by the respondent for the inordinate delay are proper and reasonable and have accordingly condoned the same. I am however clear that they have taken an erroneous view of the law on the subject and have consequently misdirected themselves in applying the principles which are applicable to the case. The law assumes that the lady desired to get rid of her husband after the commencement of the Act or at least as soon as she became aware of her right to get divorce on the ground that the first wife of the husband who had been married to him before the commencement of the Act was alive at the time of the solemnization of her marriage with him and that she had been obliged for proper reasons set forth in the earlier paragraphs to stay her hand in asking for divorce till she actually filed the application for divorce. In this case there is no evidence that she wanted to get the divorce after the Hindu Marriage Act of 1955 came into force. No doubt there is no specific evidence as to the time when she became actually aware of her right to get divorce under the Act. But in such an event it can be legitimately presumed that she was aware of the provisions of the Hindu Marriage Act immediately after the Act came into force and that consequently she was aware of her right to get a divorce after the commencement of the Act. Her evidence which has been set forth in the earlier paragraphs clearly suggests that she was living happily with the appellant and that misunderstanding arose between her and the appellant only in the year 1961.

13. It may be that the conduct of the appellant towards the respondent in the year 1961 was cruel, inhumane and without any proper justification or provocation; but in my view, the brutal conduct of the husband in the year 1961 nearly after 12 years of the marriage cannot be a proper ground for a decree for divorce on any ground based upon the provisions of Section 13(2)(1) of the Hindu Marriage Act, unless there is satisfactory evidence that the respondent was desirous of seeking the severance of marriage from the date when the Act came into force and had valid and proper reasons for delaying her action for divorce. Such cruel conduct on the part of the appellant may be a good ground for asking for judicial separation and separate maintenance; but I am clear that, if the respondent seeks divorce on the ground covered and specified in Section 13(2)(1) of the Act, she cannot base her cause of action on the alleged cruelty of the appellant in the year 1961. I accept the evidence of the respondent that, in the year 1961, the appellant had by force and compulsion wrested from her the management of the school and had been attempting to deprive her of her position as a teacher, in that school. I believe her when she says that the appellant had been compelling her to sign the acquittance roll without receiving her salary as a teacher, and I am inclined to think that the appellant had been driven to take this means which seems to me unreasonable on the face because he started suspecting that the respondent was have illicit relationship with Soosaimaniekam and was attempting to get herself converted to Christianity for the sake of marrying the latter. It is impossible to otherwise explain the sudden violent change in their relationship which had till then appeared to have been pleasant and cordial. It may be recalled that it was he who made arrangements for training the respondent as a school teacher and that it was he who constructed the school and got the respondent the post of manager-ram-teacher in that institution.

14. It is unnecessary to find out whether there was sufficient justification for the appellant's suspicion against the respondent. It is sufficient to state that the ill-feeling between the parties developed in the year 1961 as a result of the suspicion in the mind of the appellant against the respondent's loyalty and I am satisfied that the hostile conduct of the appellant towards the respondent in the year 1961 will not be a good or proper ground for excusing the inordinate delay on the part of the respondent in seeking divorce on the ground covered by Section 13 (2)(i) of the Act after the lapse of more than 12 years after the marriage. As pointed out earlier, the Court cannot be used as a place by the couple for redress of their private wrongs unconnected with the breach of matrimonal duties; and the main ground alleged by the respondent for seeking divorce in the year 1961 is that the appellant had behaved cruelly to her by wresting the management of the school and herosition as a teacher in that institution and attempting to take the jewels and salary without her consent. It cannot be said that the injury suffered by the respondent as a result of the appellant's conduct would amount to a violation of the conjugal rights of the respondent as a wife.

15. It may be urged on behalf of the respondent that the appellant's conduct in beating and driving her away from his house would amount to a violation of the marital obligations; but then I am unable to believe the respondent's story in this regard. It is true that there is an averment in her application that, in obtaining the application for surrendering her management and for transfer of the same in his favour, the appellant assaulted her and caused an injury on her right check by beating with an umbrella and that, on the night of 28th August, 1961, the appellant and his first wife beat her. If her story is true, one would have expected the respondent in the context of their strained relations between the parties, to have laid a police complaint; and it appears to me that the story of beating her had been falsely thought of for the purpose of reinforcing her application for divorce.

16. On a survey of the entire evidence and the circumstances in the case, I have no doubt in my mind that the circumstances alleged by the respondent would not constitute sufficient justification and explanation for the extraordinary delay of more than 12 years after the marriage in filing the application for divorce. As I have already observed the respondent appears to have been living with the appellant happily from the year 1948., till the year 1961, and the ill-feeling between the parties developed only in that year. The correspondence reveals that the respondent was fairly intimate with Soosaimanickam. She appears to have developed at the outset spiritual devotion towards him and on her own admission she had taken gifts from him. Her conduct has evidently led to unsavoury gossip in the locality and the appellant appears to have shared the suspicion and reacted violently and resorted to steps for taking over the management of the sehool, the building of which he had admittedly constructed, and to drive away the respondent from the institution. It was not suggested that the respondent was waiting from the date of the Act till the year 1961 hoping for reconciliation. The violent conduct of the appellant may, if at all, constitute the provocation for the institution of the application for divorce, but cannot be an adequate reason for explaining away the inordinate delay between the date of the marriage and the date of the application for divorce. There was no suggestion that she had deferred to take steps because of her regard for the feelings of the other members of the family or the honour and prestige thereof, her fear of scandal or any fear on her part of a final break up or her expectation that there were reasonable chances of reconciliation. The circumstances responsible for the break down may no doubt have to be appropriately considered,' but I am of the view that the conduct of the appellant cannot be said to be totally unjustified. As I have already pointed out, the respondent's close relationship with Soosaimanickam appaers to have violently invited the appellant to take charge of the management of the school, and his attempt to eject the respondent from that institution cannot be said, under the circumstances, to be without any justifiable provocation. Turther admittedly the three children born out of the wedlock are alive and they are fairly young and the divorce -sought for is likely to affect their interests adversely. I am satisfied that the respondent has not made out a case for a decree of divorce under Section 13(2)(i) of the Hindu Marriage Act.

17. In the result, the appeal is allowed and the orders of the learned District Judge and Subordinate Judge are set aside. O.P. No. 143 of 1961 filed by the respondent for dissolution of marriage is dismissed. Each party will bear his or her own costs throughout. Leave granted.


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