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Vinod Chandra Dube v. Smt. Aruna Dube .
Factual and Procedural Background
The appellant, Vinod Chandra Dubey, was married to the respondent, Shrimati Aruna Dubey, on February 17, 1964. They lived together for about a year. The wife left the husband on February 2, 1965, and never returned. There was no child of the marriage. On July 16, 1973, the husband filed a petition seeking a decree of nullity under S. 12(1)(a) of the Hindu Marriage Act, 1955, on the ground of the wife's impotence; alternatively he sought judicial separation on grounds of desertion and cruelty under S. 10 of the Act.
The wife did not appear to contest the proceedings and remained ex parte. In ex parte evidence the husband, his father and mother were examined; the trial Judge accepted their evidence and found that the wife was impotent at the time of marriage. Despite accepting impotence, the Additional District Judge refused to grant a decree of nullity on January 31, 1974, solely on the ground that the husband had delayed more than eight years in instituting proceedings and had not satisfactorily explained the delay. The husband appealed.
Legal Issues Presented
- Whether the delay of over eight years in instituting proceedings disentitles the husband from obtaining a decree of nullity under the Hindu Marriage Act, 1955 (i.e., whether there has been such unreasonable or improper delay as to defeat the husband's claim).
Arguments of the Parties
Appellant's Arguments (as presented in the opinion)
- The husband alleged that the wife was impotent and incapable of bearing children; this ground was pleaded under S. 12(1)(a) of the Hindu Marriage Act, 1955.
- He alternatively pleaded for judicial separation on grounds of desertion and cruelty under S. 10 of the Act.
- Evidence adduced (by the husband and family witnesses) established that the wife had no menses, had a shrivelled womb and that a lady doctor had concluded she would never be able to procreate; a family gynaecologist had offered treatment free which the wife refused.
- The husband explained his delay in coming to court by reference to family conservatism and reluctance to institute proceedings: he stated in affidavit that he belonged to a conservative Hindu family and his parents did not favour going to court; the husband also asserted he had not approbated the marriage and had persistently been dissatisfied with the state of affairs.
Respondent's Position (as recorded)
- The wife did not appear to contest the case; she remained ex parte and filed no counter-arguments in court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dastane v. Dastane, AIR 1975 SC 1534 | Illustrates that Section 23 of the Hindu Marriage Act requires the Court to be satisfied on matters set out in clauses (a)–(e) before decreeing relief; applies whether the case is defended or not. | Cited to support the proposition that the Court must be satisfied on Section 23 matters (including absence of unreasonable delay) before granting relief. |
| G v. M (1885) 10 AC 171 | Explains approbation/estoppel: conduct may estop a party who, with knowledge, has treated the marriage as valid or derived benefits from it. | Quoted for the principle that delay may indicate approbation and therefore requires explanation; used to frame the inquiry into whether conduct disentitles the petitioner. |
| Adelaide v. Williams, AIR 1968 Cal 133 | Example where long delay was excused (wife sued after 26 years due to raising children). | Used as an example that delay may be acceptable when satisfactorily explained; supports liberal discretion. |
| Nirmoo v. Nika Ram, AIR 1968 Delhi 260 | Example where an 11-year delay was held not to be unnecessary or improper. | Relied upon to show delay alone does not bar relief if circumstances justify it. |
| Lalithamma v. Kannan, AIR 1966 Mys 178 | Example where petition filed many years after husband's second marriage; delay not held fatal. | Referred to as part of representative decisions where delay was not fatal. |
| Thimmappa v. Thimmaya, AIR 1972 Mys 234 | Example where delay (4–5 years after knowledge of adultery) led to refusal on sole ground of unnecessary and improper delay. | Used as an example where delay proved fatal to the petitioner's case. |
| Becker v. Becker, 1966-1 WLR 423 | Delay of 15 years after desertion held not to be a bar where marriage had broken down and parties lived far apart. | Illustrates that long delay may be excused where the marriage has irretrievably broken down. |
| Devenport v. Devenport (1965) 1 WLR 91 | Granted decree notwithstanding 14 years' delay. | Shows English authorities where long delay did not prevent relief. |
| Clifford v. Clifford (1948) 1 All ER 394 | Examined lengthy delay (decades); considered whether petitioner had endeavoured to remedy the defect and whether it would be unjust to grant decree after long acquiescence. | Used as an example of when long delay was not fatal because the petitioner had shown ongoing effort and dissatisfaction; cited repeatedly to illustrate the modern, liberal approach. |
| Blunt v. Blunt (1943) 2 All ER 76 | Emphasises public interest balance between sanctity of marriage and permitting dissolution where union has utterly broken down. | Quoted to support the view that courts should weigh social considerations and may exercise favourable discretion where marriage has broken down. |
| A v. B, AIR 1967 Punj 152 | Relied upon for the social context and the need to consider societal disfavour of dissolution when assessing delay. | Cited as an Indian authority endorsing a liberal approach to delay, and relied upon by the Court to explain societal factors affecting delay. |
| Leela v. R.A. Singh, AIR 1963 Raj 178 | Indian ruling aligning with Clifford on exercise of discretion despite delay. | Referred to as support for the modern trend of exercising liberal discretion in India; relied upon by later benches. |
| S… v. R…., AIR 1968 Delhi 79 | Division Bench case where a 6-year delay and impotence ground resulted in decree of nullity; emphasized societal context when considering delay. | Used as a directly comparable local precedent where delay did not prevent grant of relief. |
| Crump v. Crump (1957) 107 LJ 377 (CA) | Observation that many spouses endure and delay seeking legal relief because of social pressures. | Invoked to explain social reluctance to litigate marital breakdowns and to justify leniency on delay. |
| B v. B (1854) 23 LT (OS) 99 | Principle that the petitioner must genuinely feel the grievance; cannot seek redress for a grievance which he voluntarily accepted (clean hands doctrine). | Quoted for the maxim that a party must come with clean hands and must have felt the wrong complained of. |
| Llewellyn v. Llewellyn (1955) 2 All ER 110 | Authority for the proposition that courts should not be used opportunistically to seek redress only when it suits the petitioner. | Adopted to stress that the petitioner must demonstrate genuine suffering and reasonable activity in seeking redress. |
| Boulting v. Boulting (1864) 164 ER 1302 | Quoted passage articulating that petitioner must feel and suffer under the wrong and seek remedy as genuine relief from grievance. | Extracted by Denning L.J and relied on to underline the requirement of genuine grievance and active pursuit of redress. |
| Section 12(1)(a), Hindu Marriage Act, 1955 | Statutory ground for decree of nullity where spouse is impotent at the time of marriage. | Basis of the husband's primary claim for nullity; court accepted impotence finding under this provision. |
| Section 10, Hindu Marriage Act, 1955 | Authority for judicial separation (alternative relief pleaded by husband for desertion and cruelty). | Referred to as the alternative plea in the husband's petition. |
| Section 23, Hindu Marriage Act, 1955 | Provides that the Court shall grant relief only if satisfied that (among other things) there has not been any unnecessary or improper delay in instituting proceedings. | Central statutory provision governing the court's inquiry into delay; quoted and applied throughout the analysis. |
| Section 4, Matrimonial Causes Act, 1950 (England) | Identified as the basis for Section 23 of the Indian Act. | Referred to as the English statutory precursor to Section 23, showing statutory origin of the requirement to consider delay. |
| Section 13(1), Matrimonial Causes Act, 1973 (England) | Modern English statutory provision barring decree where petitioner, with knowledge, conducted himself so as to lead respondent to believe he would not seek annulment and it would be unjust to grant decree. | Cited to explain the rationale behind the doctrine and to show the evolution of English law emphasizing conduct and injustice to respondent as bars to decree. |
Court's Reasoning and Analysis
The appellate court identified the sole issue as whether the delay in instituting proceedings disentitled the husband to a decree of nullity. The court accepted the trial Judge's factual finding of the wife's impotence because the wife remained ex parte and the Judge had accepted the husband's witnesses.
The court then turned to the question of delay and analysed Section 23 of the Hindu Marriage Act, which requires the court to be satisfied, on a preponderance of probabilities, of matters including that there has not been any unnecessary or improper delay in instituting proceedings. The court emphasised that delay alone does not automatically bar relief; the statute uses the qualifying words 'improper' and 'unreasonable', and the inquiry focuses on whether the delay demonstrates approbation, estoppel or insincerity on the part of the petitioner.
The judge reviewed a body of authority—both English and Indian—that demonstrates the governing principles: (a) delay is a relevant circumstance bearing on whether the petitioner has approbated the marriage or acquiesced in it; (b) the critical inquiry is the conduct of the parties during the interceding period and explanations for that conduct rather than mere passage of time; (c) social and cultural pressures in Indian society often delay resort to courts and are legitimate explanatory factors; and (d) modern jurisprudence favours a liberal discretionary approach in many instances where older authorities would have refused relief.
Applying these principles to the facts, the court noted: the wife left in February 1965 after rejecting offered medical treatment; the husband had attempted to have her treated and to build a home; his inaction for some years reflected family conservatism and indecision rather than an acceptance or approbation of the marital state; there was no evidence that he had derived benefits or taken actions amounting to an unequivocal election to treat the marriage as valid. Although passive and not prompt, his conduct did not demonstrate the kind of inequity, unjust enrichment or deliberate approbation that would disentitle him.
The court also considered procedural fairness: the trial Judge raised delay in preparing judgment but had not given the husband an opportunity to explain the delay in court. The appellate court observed that ordinarily it might remit the case for further inquiry, but given the husband's age (46) and the prospect of further suffering, the court proceeded to decide the matter on the record.
Weighing the statutory test, contextual social factors, comparative authorities, and the particulars of the husband's conduct, the court concluded that the delay was neither improper nor unreasonable in a manner that disentitled the husband from relief.
Holding and Implications
HOLDING: The appeal was allowed and the husband's petition for a decree of nullity was granted.
Direct Implications: The husband is entitled to a decree of nullity on the ground of the wife's impotence under S. 12(1)(a) of the Hindu Marriage Act, 1955. Because the wife did not appear, the court made no order as to costs.
Broader Implications: The opinion reiterates the established principle that delay, by itself, is not an absolute bar to relief under Section 23; the decisive inquiry is whether delay amounts to inequitable conduct (approbation or acquiescence) such that it would be unjust to grant relief. The court applied this principle on the facts and exercised a discretionary, liberal approach, taking account of social contexts that may explain delay. The judgment resolves the dispute between these parties but does not purport to create a new legal rule beyond the principles discussed.
Appeal allowed.
This is a husband's appeal from the order of the Additional District Judge dated January 31, 1974, refusing him a decree of nullity.
2. The appellant Vinod Chandra Dubey was married to the respondent Shrimati Aruna Dubey on February 17, 1964. They lived together for a brief period of a year or so. On February 2, 1965, the wife left the husband. Thereafter she never came back to him. There is no child of the marriage.
3. On July 16, 1973, the husband brought a petition. He claimed a decree of nullity on the ground of wife's impotency under S. 12 (1) (a) of the Hindu Marriage Act, 1955 (the Act) and in the alternative a decree of judicial separation on the ground of desertion and cruelty under S. 10 of the Act.
4. In his petition the husband said that within a month of the marriage he found that the wife did not have menses at all. She had a shrivelled womb and was thus incapable of producing a child. She was impotent and sexless. These were the allegations of the husband.
5. The wife did not appear to contest the case. She remained ex parte. In ex parte evidence the husband examined himself, his father and mother. The Judge accepted their evidence. He came to the conclusion that the wife was impotent at the time of marriage.
6. But the Judge declined to grant a decree of nullity. He was of the view that there was unreasonable and improper delay on the part of the husband in bringing the petition after 8½ years. He held that as the husband had not explained the delay he was not entitled to a decree of nullity. He dismissed the petition solely on the ground of delay. Now the husband appeals to this court.
7. The sole issue in the appeal is whether in this case there has been such delay as would disentitle the husband from getting a decree of nullity? The wife in this court as in the court below did not appear to contest the case. I, therefore, entirely accept the Judge's finding on the impotence of the wife. On the point of delay I, however, differ from him.
8. First the facts. The evidence shows that the wife lived with the husband upto February 1, 1965. During this period of a year or so it was discovered that the wife did not get menses. It was found that she was incapable of bearing a child. A lady doctor Shahi examined her. She came to the conclusion that the wife will never be able to procreate. The members of the family of the husband suggested to the wife that she should get herself treated. The husband's mother's sister Dr. Miss B.D Dubey is a gynaecologist and obstetrician. She agreed to treat the wife free of charge. But the wife spurned the preferred aid. She left the matrimonial home in February 1965. For all purposes that was the end of married life.
9. Time rolled on. The husband brought the petition in 1973, that is, after more than 8 years. There is of course delay. But is it so unreasonable and improper that the Court should say to the husband: “We will not annul your marriage even though you have proved your case because you have not been able to explain the delay?”
10. Section 23 of the Act reads:
“Decree in proceedings — (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that—
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(d) there has not been any unnecessary or improper delay in instituting the proceedings, and
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then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.”
11. This section says that the Judge has to be satisfied on a preponderance of probabilities of the matters set out in clauses (a) to (e) of that section, This is clear from the words “and in such a case, but not otherwise, the Court shall decree such relief”. The Legislature has emphasised that if the Court is satisfied of the grounds (a) to (e) then the relief may be granted. This applies to all cases whether defended or not. Dastane v. Dastane, AIR 1975 SC 1534 (1540).
12. Delay, however long in bringing a proceeding under this Act is not by itself a bar but is relevant when considering want of sincerity, that is, such conduct on the part of the petitioner as ought to estop him or her from the remedy. The statute does not merely use the term ‘delay’. It also says that the delay must be ‘improper’ and ‘unreasonable’. These are the key words. Delay itself does not amount to approbation. But it is a significant fact. Delay, however long, is not in itself a bar in a nullity suit; it is merely a factor in considering any insincerity. The reason for requiring delay to be explained to the satisfaction of the court is that prima facie the mere fact of delay upon a complaint of a matter so fundamental to marriage raises doubts as to the reliability of the evidence of the complainant in support of the complaint. Even though the ground of complaint may be well founded, delay indicates that sense of injury is wanting.
13. The leading case in England is G v. M (1885) 10 AC 171. Lord Selborne C. said :
“There may be conduct on the part of the person seeking this remedy which ought to estop that person from having it; as, for instance, any act from which the inference ought to be drawn that during the antecedent time the party has, with a knowledge of the facts and of the law, aprobated the marriage which he or she afterwards seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her, after having received them, to treat as if no such relation had ever existed.”
14. It will be obvious from this that delay in presenting a petition requires explanation, since the mere fact of delay suggests that the petitioner was willing to treat the marriage as valid; therefore, the existence of delay, and the explanation for it, are part of the circumstances to be considered as deciding whether or not there has been approbation. As examples of delay in respect of which the court accepted the petitioner's explanation and of cases where delay proved fatal are the following representative decisions.
15. In Adelaide v. Williams, AIR 1968 Cal 133 the wife sued for divorce after 26 years of the husband's desertion. The reason for the delay was that the wife had to bring up two daughters and a son during those years. The court accepted the explanation. Delay was not held to be a bar.
16. In Nirmoo v. Nika Ram, AIR 1968 Delhi 260 the wife sought for divorce eleven years after the coming into force of the Act. It was held that there had been no unnecessary or improper delay in the facts of the case.
17. In Lalithamma v. Kannan, AIR 1966 Mys 178 the husband had contracted a second marriage in 1948. The wife brought the petition for nullity in March 1960. It was held that there is no such improper delay as to operate as a bar to the wife being granted the relief of divorce.
18. In Thimmappa v. Thimmaya, AIR 1972 Mys 234 the husband first came to know that the wife had committed adultery, 4 or 5 years prior to the filing of the petition. The decree of divorce was refused on the sole ground of unnecessary and improper delay.
19. In Becker v. Becker, 1966-1 WLR 423 there was a delay of 15 years after desertion in the institution of proceedings. The parties lived far away and the marriage had completely broken down. Delay was held to be no bar.
20. It must be borne in mind that entirely different considerations apply with regard to unreasonable delay in cases of desertion than in cases of adultery or cruelty. Delay is less likely to be culpable in cases of desertion.
21. In Devenport v. Devenport (1965) 1 WLR 91 the court granted a decree notwithstanding fourteen years delay.
22. In Clifford v. Clifford (1948) 1 All ER 394 the husband delayed for twenty-seven years, for part of the time hoping to overcome the wife's aversion to sexual intercourse and for part of the time for financial reasons. The trial Judge found that the non-consummation was due not to wilful refusal by the wife but to her uncontrollable fear of childbirth which, causing a contraction of the muscles, made intercourse impossible. The Judge took into account the position of the wife who had enjoyed the status of wife since 1919 and had fulfilled the duties of a wife throughout the best years of her life. He held that it would be contrary to public policy and unjust to the wife to grant a decree to the husband.
23. On appeal Tucker L.J pointed out trial throughout this ‘long period’ of 17 years the husband was again and again endeavouring to overcome the difficulty of non-consummation and he was seeking to persuade and coax his wife into having ‘closer intercourse’. It was not a case in which the husband was acquiescing in his wife's disability, and ‘contentedly leading a married life until some incident arose’, but was the case of a husband who throughout the 17 years of his married life showed himself dissatisfied with the state of affairs which had existed. Bucknill L.J and Cohen L.J agreed that there had been no insincerity. The husband's appeal was allowed.
24. The facts in the instant case are very much alike. The wife lived with the husband for a year or so. Thereafter she left. The appellant has been unable to obtain the ordinary satisfaction of a husband and unable to obtain what he wanted above all things-a child. It is to be put in the scales on the husband's side that he did not immediately rush to court but waited and watched. A desire for an issue or a desire to marry another are legitimate human desires. The wife had given him nothing. If the mere circumstance that there has been delay of eight years in this case is sufficient to defeat a decree on the ground of delay it seems to me that every petition based on a charge of nullity would be defeated for in our society husband and wife generally wait and take decisions of going to court when everything else has been tried and failed. It is only when the matrimonial lot becomes intolerable that a party resorts to Court unlike what obtains in the west.
25. In these cases it must not be forgotten that where a home is irretrievably broken and the marriage wrecked the suffering should not further be protracted by dismissing the petition on the ground of delay which would not serve the purpose of either party and cannot in any way help the parties to set up a future home of harmony and peace which they could not find in the company of each other in the original home.
26. In Blunt v. Blunt, (1943) 2 All ER 76 Viscount Simon L.C said :
“To these four considerations I would add a fifth of a more general character which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the Court to exercise a favourable discretion in many instances where in an earlier time a decree would certainly have been refused.”
27. These observations were relied upon by H.R Khanna J. in A v. B, AIR 1967 Punj 152 and in the Division Bench ruling by Chhangani J. in Leela v. R.A Singh, AIR 1963 Raj 178.
28. The test, therefore, is whether the delay is culpable or to put it strongly whether it is in the nature of a wrong. This is why the modern trend is to exercise a liberal discretion in cases where formerly a decree would have been refused on the ground of unnecessary delay and this change can be explained on account of the changing patterns of social behaviour. Clifford v. Clifford (1948-1 All ER 394) (supra) is an example in England. In India Leela v. R.A Singh (AIR 1963 Raj 178) (supra) takes very much the same view. The Rajasthan ruling was followed by H.R Khanna J. in A v. B (AIR 1967 Punj 152) (supra). His decision was affirmed on appeal by a Division Bench of this court in S… v. R…., AIR 1968 Delhi 79. In that case also there was a delay of 6 years. There also impotence of the husband was the ground. The wife was granted a decree of nullity. The Judges said :
“In considering whether there was unnecessary or unreasonable delay in seeking the relief, we cannot ignore the conditions of the society in which the parties lived and traditions of the family to which they belong. The Hindu society looked with disfavour dissolution of marriages. It was considered as something sinful. It requires courage to face the public odium. We can take judicial notice of the fact that even today considerable sections of the Hindu society look with disfavour the idea of dissolving a marriage.”
29. The Division Bench relied on Clifford v. Clifford, (1948) 1 All ER 394 and Leela v. R.A Singh, AIR 1963 Raj 178 (supra).
30. The Courts have refused relief to a party where his conduct shows that he has approbated the marriage or has elected to be bound by the marriage. The usual terminology for this bar is ‘insincerity’ although it is a much criticised word in its context. “Estoppel” is also used, as are the words ‘unfair’ in reference to the parties, ‘unjustly’, and ‘unseemly’ from a public point of view. Sometimes it is said that it is ‘inequitable’ to grant relief, in the sense that it is ‘unjust as between the two parties to the suit’. ‘Acquiescence’ in the marriage is another phrase employed.
31. But where the main objection of the husband as in this case is to have a child it cannot be said that it is an ulterior motive for getting the marriage annulled. A desire to escape from an intolerable state of things is not an ulterior motive. There is nothing reprehensible in the human desire to have a child so that the line is not extinct.
32. It is true that delay had to be explained by the petitioner before he could be granted relief. The onus of proving that delay is inexcusable is on the respondent to the petition who seeks to get it dismissed. In cases where the respondent is ex parte the court may itself take the objection in obvious cases. But what seems to have happened in this case is that question of delay attracted the attention of the learned Judge when he was preparing the judgment and not earlier. He, therefore, dismissed the petition.
33. Ordinarily I would have remanded the case in the ends of justice. But the facts of the case are such that a further delay will inflict more suffering on the husband who is already a man of 46 years of age. He has filed an affidavit in this court saying that he belongs to a conservative Hindu family and his parents did not favour the idea of going to court.
34. Has the husband disentitled himself by his conduct? That there was passivity on his part it is true. He wavered as to the action he would take to assert his rights after he came to know that the wife had a withered womb. But he is not guilty of any conduct on his part which can be described by any adjectives such as have been used in English cases-‘unjust’ or ‘inequitable’. All that can be said is that he was not prompt, that he was indolent and inert. But it cannot be said that he is disentitled from obtaining relief from the courts.
35. Take the case of the wife. She left the husband in 1965. Thereafter she never came back. She refused to be medically treated in spite of the husband's efforts. He did everything to build a happy home. Must he now be condemned to live a life of celibacy for ever? The wife suffers from a disability and deformity. The husband never knew about it before marriage. After marriage he has done nothing to disentitle himself from getting relief. He made no promise with the wife that he will always live with her even if she has a shrivelled womb. He did not raise any hopes in her for which he can properly be blamed. There is nothing to show that the husband had accepted his lot and had decided not to make efforts to change it for the better. If he waited for some years he did no wrong to the wife of which she can justly complain to the court. This seems to me a case where throughout his married life the husband was complaining and showing himself dissatisfied with the state of affairs which existed. In his affidavit the husband has said that he did not go to court earlier than 1973 as nullity proceedings did not appeal to him and his parents. But from his conduct it cannot be said that he had approbated the marriage.
36. Suppose the wife were to be present in court. Could she say to the court with any show of reason : ‘Pray do not grant relief to this man as that will be unjust to me’?
37. In 1973 the husband went to Court. He decided to sue for annulment. He was met with the defence of delay. It was an undefended case. The Judge himself raised the point. That he was entitled to do so is not in doubt. But he gave the husband no opportunity to explain.
38. The husband's explanation is that he did not approbate the marriage. There is nothing on the record to show that he recognised the existence and validity of the marriage as to render it most inequitable and contrary to public policy to make a decree of nullity (See G v. M (supra) per Lord Watson). The husband made no surrenders. His life, if anything, was a test of endurance. When it looked as though their lives would continue for ever in this manner the husband decided to take recourse to law. Till then he remained inactive. But there was no acquiescence. There was struggle within him. He was in the quagmire of indecision. His problem was the eternal human problem.
“To be, or not to be—that is the question. Whether ‘tis nobler in the mind to suffer. The slings and arrows of outrageous fortune. Or to take arms against a sea of troubles, and by opposing end them?”
Shakespeare-Hamlet
Act III Scene I.
39. Tradition of the family and custom of the country stood in his way. Many people in our country are afraid to go to law. They think that a law suit would create a local scandal. They suffer in silence. One knows in a great many cases spouses endure with patient hope for many years before taking advantage of the right which is now available to them. (Crump v. Crump, (1957) 107 LJ 377 (CA) per Hodson L. J.).
40. It cannot be said that the husband has not come to court with clean hands. A doctrine of unreasonable delay means that a man must come into court with clean hands, that he cannot take advantage of his own wrong, that he cannot rely upon that as a grievance which he has voluntarily accepted with his eyes open. Put briefly a party is not entitled to say to the court : “give me a remedy for the grievance I have not felt”. (B v. B (1854) 23 LT (OS) 99).
41. As was observed by Hodson L.J in Llewellyn v. Llewellyn, (1955) 2 All ER 110 :
“The Court is not to be used as a place to which people can come for redress just when it suits them.”
42. In the same case Denning L.J after observing that the petitioner ‘cannot play fast and lose with marriage in that way’ extracted the following passage from Boulting v. Boulting. (1864) 164 ER 1302 :
“The petitioner must feel and suffer under the wrong of which complaint is made, and the Court must be satisfied that the remedy is sought as a genuine relief from the pressure of that grievance. Such is the beaten track of the decisions. It is impossible to tread too faithfully in footsteps so wisely placed.”
Jackson has summed up the law in these words :
“The mere fact that a long time has elapsed between the date of the marriage and the date proceedings were commenced is significant but does not of itself constitute a bar. Delay may, however, make it difficult to prove that the nonconsummation is due to the physical defect or otherwise of the other spouse, the longer a petitioner puts off the bringing of the proceedings, the more inquisitive the Court will be, and the more the Court will require to be satisfied that he is presenting a true case; but, subject to this consideration, it is not so much the time factor between marriage and proceedings that matters as the conduct of the parties during that period and the explanations for that conduct. The petitioner must, it is said, evince impatience under a sense of wrong and a reasonable activity in complaint and redress.”
(The Formation and Annulment of Marriage (Second Edition) page 343).
Section 23 of the Act is based on Section 4 of the English Matrimonial Causes Act, 1950. But the law in England has not stood still. It has marched with the times. In Section 13 (1) of the Matrimonial Causes Act 1973 the law has now been enacted as follows :
“13. (1) the Court shall not, in proceeding instituted after 31st July 1971, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the Court.
(a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
(b) that it would be unjust to the respondent to grant the decree.”
43. The above provision clearly brings out the reason of the rule. Though our Act is differently worded the rationale of the doctrine remains the same.
44. The question whether in a given case, there had been unnecessary or improper delay in instituting the proceeding has to be decided on its own facts. No hand and fast rule can be laid down. But it is well to remember the one single principle that
“It is not so much the time factor between marriage and proceedings that matters as the conduct of the parties during that period and the explanation for that conduct.”
45. In the circumstances of the case I would hold that there has been no unnecessary and improper delay. I would, therefore, allow the appeal and grant a decree of nullity to the husband. As the wife has not appeared there will be no order as to costs.
Appeal allowed.
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