Mohan Lal vs Smt. Shanti Devi

R.N. Mittal, J.—This appeal has been filed by the husband against the judgment and decree of the Additional District Judge, Barnala dated 23rd February, 1984, dismissing his petition u/s 13 of the Hindu Marriage Act on the ground of delay.

Briefly the facts are that the parties were married on 23rd January, 1957 at village Thulliwal, District Sangrur They lived and cohabited together after the marriage at the house of the Petitioner at village Kattu However, no child was born from the wedlock. It is alleged that the Respondent left the house of the Petitioner in 1961 without any reason and she did not return to his house in spite of the fact that he took Panchayat several times to her house. The Respondent filed a petition u/s 125 of the Code of Criminal Procedure for grant of maintenance against him in which the maintenance was granted on 6th June, 1963. Later the Petitioner filed a petition u/s (sic) for restitution of conjugal rights which was dismissed on 26th June, 1969 It is alleged that the Respondent had deserted the Petitioner. Consequently he filed monition u/s 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce.

The petition was contested by the Respondent who denied his allegations She inter alia pleaded that she was maltreated and was turned out by the Petitioner from his house. She denied that any Panchayat was taken by the Petitioner to her house for reconciliation. She further pleaded that the petition was highly belated and was liable to be dismissed on that short ground.

On the pleadings of the parties the Court framed the following issues:-

Whether the Respondent is guilty of cruelty towards the Petitioner as alleged ?

Whether the Respondent has deserted the Petitioner for a continuous period of mora than two years prior to the petition ?

2-. Whether there was an inordinate delay in filing the petition ?

Relief.

However, it decided only issue No. 2A. and held that the petition had been filed after an inordinate delay and the same had not been explained. Consequently the petition was dismissed on the said ground. The other issues were not decided by the Court. The Petitioner has come up in appeal against the judgment of the Additional District Judge to this Court.

The case came up for hearing before me in December, 1984. But as the maintenance had not been paid by the Petitioner, the counsel for the Respondent, after arguing the matter to some extent, got adjournment. The Petitioner in January, 1985 filed a petition under Order 6, Rule 17 of the CPC for amendment of the plaint stating that the Respondent and her brother had made a false allegation that he was living with one Smt. Amarjit Kaur. It is alleged that the accusation was false and resulted in mental cruelty to him. Consequently he prayed that he may be allowed to amend the petition for divorce and include the above ground therein. The application has been opposed by the Respondent on the ground that it has been filed to harass her By this judgment I shall dispose of the appeal as well as the civil miscellaneous.

The first question that arises for determination is as to whether the petition was belated and whether it could be dismissed on that ground alone. There is no dispute regarding the facts of the case. The parties were married as far back as 1957. Some disputes arose between them in 1961. In 1953 the Respondent filed a petition u/s 125 of the Code of Criminal Procedure for maintenance which was allowed and she was granted the maintenance. In 1968 the Petitioner filed a petition for restitution of conjugal rights which was dismissed in 1969. An appeal by the husband against the judgment of trial Court was also dismissed in January, 1972. The present petition was filed in February 1983. Even if it may be assumed that the Appellant has been able to explain the delay upto 1972, there is no explanation much less reasonable as to why therefore be waited for a period of 11 years for filing the present petition. Section 23 (1) (d) of the Hindu Marriage Act provides that if the Court is satisfied that there has not been any unnecessary or improper delay in instituting the proceedings, then and not otherwise it would grant the relief. From the language of the section it is evident that if the Petitioner comes to Court after a long delay, it it for him to explain the same. If he has not explained the delay, the petition is liable to be dismissed on that short ground. In the above view. I am fortified by my observations in Siri Chand v. Smt. Suresho 1984 MLJ 579. Therefore, I am of the opinion that the view taken by the trial Court is correct and there is no scope for interference with its judgment in appeal

Now I advert to the civil miscellaneous Mr. Majithia hat argued that a false allegation has been levelled against the Appellant that he was living with one Smt Amarjit Kaur which fact was incorrect. According to him, that constitutes cruelty and the Appellant it entitled to amended the petition. To fortify his argument he made reference to Paras Ram Vs. Kamlesh,

I have given due consideration to the argument In the present case the petition for divorce was dismissed on the ground of de-lay and I am affirming that judgment in appeal. In the circumstances it will not be proper to allow the amendment of the petition. The facts of the case referred to by Mr. Majithia are distinguishable. There the case had been decided on the merits. The Appellant may file a fresh petition for divorce if it is maintainable on that ground.

Consequently the appeal as well as the civil miscellaneous it dismissed with no order as to costs.