1976 Supreme(MP) 154

IN THE HIGH COURT OF MADHYA PRADESH
G.P. SINGH, R.K. TANKHA, JJ.
Jagannath Prasad – Appellant
Vs.
Mst. Ramrajia and another – Respondent
F.A. No. 142 of 1972 (J)
Decided on : 09-12-1976

Headnote:Hindu Marriage Act, 1955 - S.23 (1) (d) & 13 (1) - application for dissolution of marriage on ground of adultery - period of adultery in close proximity of the date of the presentation of the application - petition could not be dismissed on the ground of delay.

       Short Note

       1. On 30 - 4 - 1970 the applicant initiated proceedings against his wife, non - applicant No.1, by filing a petition under section 13 (1) of the Hindu Marriage Act, 1955 for dissolution of their marriage by a decree of divorce on the ground mentioned under clause (l) of the aforementioned sub - section. The trial Court dismissed the petition on the ground mentioned under section 23 (1) (d) of the Act as having been filed with inordinate delay after a lapse of nearly 10 years from the year 1960 or even before, since when the applicant had severed his relations with his wife did who had also secured maintenance under section 488 of the Code of Criminal Procedure.

       2. Held: Having heard learned counsel for the applicant this Court is of opinion that this appeal has to be allowed. Since the petition was dismissed only on the ground mentioned under section 23 (1) (d) of the Act, this Court was required to consider whether the judgment of the trial Court can be sustained on that basis. If not, the case would have to go back to that Court for a full, trial. In the present case the petition was dismissed having been filed with unnecessary or improper delay under section 13 (1) of the Act on the allegations levelled in the petition itself without recording of any evidence. It is well settled now that a petitioner seeking relief for a decree of divorce must go to the Court as early as possible by avoiding unnecessary or improper delay in instituting proceedings in that regard. On going through the petition this Court finds that paras 12 and 12 (1) detail out the allegations against the non applicant No.1 that she was living in adultery with non - applicant No.2 from the year 1968 as his wife and an illegitimate child was born to her by that union on 3 - 7 - 1970. It may be mentioned that the allegations in para 12 (1) were incorporated by a subsequent amendment of the petitions vide trial Court's order dated 19 - 8 - 1970. The allegations were clear in terms showing that the non - applicant No.1 was leading a continuous course of adulterous life at least from the year 1968, leaving aside the course of conduct of earlier year mentioned in the petition. As it appears the trial Court misdirected itself by omitting to see the allegations of the above referred two paras of the petition. In the circumstances, differing from the trial Court, this Court is of opinion that as in the present case the allegations against the non - applicant No.1 of living in adultery also relate to the period in proximity of the date of the presentation of the petition on 30 - 4 - 1970, the said petition could not have been dismissed on the ground mentioned under section 23 (1) (d) of the Act as presented with unnecessary or improper delay. On the contrary, this Court holds that there was no delay in presentation of the petition for seeking the relief to get the marriage dissolved by a decree of divorce. Case remanded.

       Appeal allowed.