Back
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P.T. ASHA, J.
A.R. Indira - Appellant
Versus
N. Kadappan - Respondent
C.M.S.A.(MD) No. 61 of 2011 & M.P.(MD) Nos. 1 & 2 of 2010
Decided On : 24-10-2019
Hindu Marriage Act - Section 28 - Code of Civil Procedure - Section 100 – Condo nation of delay - seeking for divorce - evidence on record - respondent/husband in his petition for divorce has contended that within a few months of the marriage, the appellant/wife frequently picked up quarrels and ultimately, had left her matrimonial home on 28.02.1989. He would further contend that in the first week of January 1990, the respondent had attempted a reconciliation through Panchayathars and the appellant, who had appeared before the mediators had categorically informed them that she had no intention to rejoin her husband – Held, In the said case, the learned Judge of this Court had held that as per the provisions of Section 23 (1) (d) of the Hindu Marriage Act, 1955, the Court has to be satisfied that there is no improper delay in filing the petition in order to entertain the petition for divorce. In the instant case, as already stated, there is no reason given for the delay. The petition is silent in this regard. In the case of Krishnan Vs. Anita reported in (2016) 1 HLR 337; (2015) 5 LawHerald 4257; (2016) 3 RCR (Civ) 442; (2015) 0 Supreme (P&H) 1516; the Honble Division Bench of Punjab and Haryana High Court had dismissed the petition in FAO-M-241 of 2013 for divorce filed by the husband on the ground of desertion by stating that the husband has failed to explain the reasons for the unnecessary and improper delay in instituting the proceedings and in that case, the delay is 8 years. It is therefore clear that the petition for divorce is clearly not maintainable in the light of the provisions of Section 23 (1) (d) of the Hindu Marriage Act, 1955. That apart, the respondent/husband has not proved the desertion and has condoned the only incident of cruelty by wife - 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 not 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 - As regards the ground of desertion, it is seen that the respondent/husband has not taken any steps to recall the appellant/wife. From the evidence, it appears that jewelry and other articles belonging to the wife continued to remain in the custody of the husband and the husband has in fact given evidence to the effect that the wife has a key of his house where she could come and take the jewelry. Therefore, it is very clear that the relationship of the husband and wife has not been severed completely and the wife has given the evidence that she has been discharging her matrimonial duties. Of course, it is only the word of the appellant/wife as against the word of the respondent/husband- Appeal is allowed
JUDGMENT :
(Prayer: This Appeal is filed under Section 28 of the Hindu Marriage Act r/w Section 100 of the Code of Civil Procedure, to set aside the order dated 12.04.2011 made in HMCMA.No.5 of 2008 on the file of the District Court, Sivagangai, confirming the fair and decreetal order dated 24.10.2007 made in HMOP.No.72 of 2006 on the file of the Sub Court, Devakottai.)
1. The respondent/wife in a petition in HMOP.No.72 of 2006 filed by the petitioner/husband seeking for divorce is the appellant before this Court.
2. The brief facts which are necessary for morefully understanding the dispute on hand are herein below narrated.
3. The marriage between the appellant/wife and the respondent/husband was solemnized as per the Hindu Rites and Customs on 31.10.1988 and after the marriage, the appellant had moved into her matrimonial home with her husband, mother-in-law and sister-in law at Aathangudi Muthupattinam Village.
4. The respondent/husband in his petition for divorce has contended that within a few months of the marriage, the appellant/wife frequently picked up quarrels and ultimately, had left her matrimonial home on 28.02.1989. He would further contend that in the first week of January 1990, the respondent had attempted a reconciliation through Panchayathars and the appellant, who had appeared before the mediators had categorically informed them that she had no intention to rejoin her husband.
5. The respondent/husband would further contend that on 13.01.1990, the appellant/wife had written a letter to the respondent's employers, which had caused great deal mental agony to the respondent and the appellant/wife had caused immense mental cruelty to the respondent/husband. He would contend that after leaving her matrimonial home on 28.02.1989, the appellant had not returned and therefore, the respondent had sent a legal notice dated 08.07.2006 to the appellant directing her to rejoin him. The said notice was not received by the appellant. Thereafter, on 25.09.2006, the respondent has filed HMOP.No.72 of 2006 on the file of the Sub Court, Devakottai on the ground of cruelty and desertion.
6. The appellant/wife, who entered appearance, had filed a detailed counter, wherein, she had denied the various allegations raised in the petition for divorce and countered the said allegations by contending that she had been subjected to a great deal of mental harassment and cruelty by her mother-in-law and her unmarried sister-in-laws and that the husband had never taken steps to protect her from the cruel taunts of her mother-in-law and sister-in-law. She would further contend that despite all these cruelty meted out to her, she continued to live in her matrimonial home in the fond hope that her husband would change his attitude.
7. The appellant/wife would further contend that during the elections to the Tamilnadu Legislative Assembly that was held in the year 1989, she had been assigned to attend the training class for poll duty and during one such occasion, she had returned home late and the respondent/husband had physically assaulted her for coming late and she had sustained injuries on head. She was admitted to the hospital and thereafter, he took her to a parental home and left her there promising to take her back in three months. However, the respondent did not come forward to take her back as promised. She would contend that she had not deserted her husband at any point of time and her jewels till continue to remain in her matrimonial home under the custody of the respondent.
8. The appellant/wife further denied the allegations that she had not responded to the legal notice dated 08.07.2006. In fact she had sent a reply dated 24.07.2006, which the counsel for the respondent/husband had refused to receive. She further contended that she had never deserted the respondent and had also not treated him cruelly and she is always ready and willing to rejoin her husband.
9. The learned Subordinate Judge, Devakottai, had analyzed the evidence on reco
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
