V. Balasubrahmanyan, J.
1. This appeal raises a point about delay in the filing of proceedings for nullifying a marriage. The marriage took place a number of years ago, in 1957. The wife, wishing to have it declared a nullity, moved the Court in 1974 after 17 years had passed. By that time the husband had been dead for nearly 11 years. The ground taken by the petitioner was that at the time of her marriage the husband was already married. This other wife died in 1958, but she was alive when her husband had taken the petitioner in marriage.
2. The learned Subordinate Judge, before whom the petition was filed, heard the petitioner and recorded her evidence. At the end of the inquiry he entered the finding that the marriage was bigamous. All the same, however, he dismissed the petition on the score that it was belated and it, had to be dismissed under the law on that ground. On appeal, the learned District Judge took precisely the same line. He characterized the delay as unconscionable and dismissed the petition.
3. The contention urged in this appeal is that the Courts below ought not to have denied the petitioner the relief which their findings merited solely on the ground of delay.
4. The matter falls to be decided under the provisions of the Hindu Marriage Act, 1955. Section 23 of that Act tells the Courts how and in what manner they should give a disposal to proceedings filed before them under the Act. Clause 1(d) in that section, inter alia, says that the Court may decree, the petition and grant relief 'if there has not been any unnecessary or improper delay in instituting the proceedings'. The Courts below had apparently invoked this cautionary provision When they proceeded to dismiss the wife's petition. Each in his own mind seemed quite definite that the delay in this case was unnecessary and improper. One of them even remarked that the petitioner had not come forward with any explanation for the delay. Even so, it seems to me that they have fallen into an error in making much of the delay. I do not mean to question their personal assessments of the time-lag. Whether 17 years, or 11 years would amount to unnecessary or improper delay is not, as I conceive it, the whole point of this appeal. For it is just possible to view a question of that kind as one of degree and therefore, as one of fact. But what has struck me rather as an altogether wrong approach in these proceedings, so far, is that the Courts below should have treated the aspect of delay as quite an overriding consideration for the disposal of the petition. It is plain to see what the result of this approach has been. It has been quite unfortunate for the petitioner, if the issue on merits were considered. On that issue there is on record, a finding which is entirely in the petitioner's favour. According to this finding, 'it is clear that the petitioner married Anakarudu as his second wife, while the first Wife Arumbu was alive. As such, this marriage is null and void under Section 11 of the Hindu Marriage Act.' If so much is granted, it certainly provokes one to ask why the Courts below should at all have felt compelled to dismiss the wife's petition on the ground of delay? My answer is that they had no call to do so.
5. Section 23, as I said, lays down how Courts of law must proceed to dispose of matrimonial causes filed before them under the Act. Subsection (1) sets down what the relevant considerations in this regard ought to be. Those considerations, indeed, are many and various. Clause (a) for instance asks the Courts to go into the grounds urged in the petition and go behind them to see if the petitioner is seeking to gain an advantage by his or her own wrongs. Clause (6) says that the Courts must satisfy themselves that the petitioner is not a party or privy to the very wrong-doing complained of Clause (d) cautions that the Courts should steer clear of collusive actions. Clause (e) asks the Courts to see if there is any other legal impediment to relief being granted. Clause (d) requires the court, to (SIC) out if there had been any undue delay in the institution of the proceeding. It is easy to see that in this fasciculus of statutory requirements, the aspect of delay, as an element that goes into decision-making, is only one of the many considerations that the Courts are (SIC) to keep in mind. It would, I think, be a mistake to suppose that the element of delay can override other considerations. In any case, the time-lag in instituting the proceedings can by no means be over emphasized, but must be considered in the proper' setting, and in the context of the various other statutory considerations the relative importance and cumulative effect of which the Court has to decide for itself in a reasonable and just fashion.
6. The Clause cautioning the Courts against entertaining petitions which are long delayed can by no means be regarded as imposing a bar of limitation of some kind or other Indeed, the Act imposes no time-limit whatever on proceedings under Section 11. Nevertheless, if Parliament has thought fit to caution the Courts against delay in the institution of matrimonial causes even where they invoke Section 11, the reason cannot be far to seek. Any one with experience in these matters can tell that causes corning before the marriage division in Courts require proof of a kind which, normally, is rare to come by and seldom direct and uninhibited even where it comes. In this context, there is always the risk that the evidence and its sources may get blurred or obfuscated or even lost altogether with the lapse of time. This is the reason why matrimonial causes are required to be judged by Courts on the basis also of the time-factor between the cause of action and the institution of the petition. If this is the real rationale behind the provision, as I believe it is, then the mere passage of time or its length alone cannot be a decisive factor in every case. It would really depend on the effect of the delay on the quantum or quality of the evidence or the credibility of the witnesses that actually figure in the given inquiry. It might be noticed, in this connection, that Section 23 (1)(d) in terms, just does not refer to delay merely; what it cautions against is 'unnecessary' or 'improper' delay. The former adjective might possibly have reference to the circumstances which, in given cases,' might or might not amount to extenuating circumstances for the delay. The (SIC) 'improper' would seem to indicate that the Court has to see if the delay has, in any material way, rendered it difficult for the Court to come to a reasonably satisfactory determination on the issues raised in the proceedings. In the present case, the petitioner marked documents at the trial and set out to prove not only her marriage, but that of her husband's first wife. I have earlier extracted the finding on merits which the learned Subordinate Judge had come to on an evaluation of this evidence. That finding has left no room whatever to doubt that the petitioner's marriage was a nullity in view of the subsistence of an earlier marriage. The fact that the learned Judge could record his finding in such categorical terms must be proof that the passage of time had not corroded either the sources of evidence or the means available for their evaluation. Indeed, neither of the Courts below had so much as suggested that the delay, long though it might be, had tended to affect the evidence at the inquiry or had handicapped them in their perception and evaluation of the materials. Nor was there any impropriety suggested in the wife's suing for nullity after the husband's death. The reported decisions noticed by the Courts below bear out that law places no bar in the way of widows, or, for that matter, widowers, to obtain requisite relief from the Courts in matrimonial cases. It seems to me therefore that what had got hold of the Courts below in this case was their obsession over the mere length or passage of time of 17 years, 11 years and the like. But I have said enough already to show that the statute does not demand this approach, and the Courts below were quite wrong in thinking they were under some duty bound to dismiss a petition once they had held that there was an improper or excessive delay in its institution.
7. Strictly speaking, the conception of delay can be properly understood only with reference to some definitely laid-down standard or test of promptitude. I have earlier mentioned that this statute does not lay down any such norm, not, at any rate, under Section 11. This, therefore, renders a judicial finding as to delay in any matrimonial proceeding for nullity difficult and arbitrary under any circumstances. If there is no precise time prescribed for filing a petition, how can a Court say that any given proceedings involves delay to any extent, let alone improper on unnecessary delay? And, pray, what is a 'necessary' delay, any way? If it is necessary, can it be delay. These, however, are questions for which it is not necessary to provide answers in this case. The discussion on such questions might even be closed or gently marked by saying, sententiously, that this matter really must turn on the facts of each case. For instance, I myself may not, in the context, be as dogmatic as the Courts below evidently were in characterising the delay in this case as unconscionable or improper or unnecessary. But even assuming that 17 years is much too long a period, still the question is whether it warrants the Courts in sending the petitioner back empty-handed, when they had found on evidence that her bigamous marriage was clearly a nullity. My answer, to repost, is that the dimissal of the petition was unwarranted. The dismissal was both unnecessary and improper, if I may misuse the statutory phrases.
8. The appeal is accordingly allowed. The orders of the Courts beloware reversed. The petitioner shall have a decree for nullity of her marriage with Anakarudu as prayed for in her petition. There will, however, be no order as to costs.