JUDGMENT 1. THIS is an appeal by the husband, jadu Gopal Roy, for failure, in the court below, of his petition, bearing date January, 36, 1962, but filed on January 17, 1962, for a decree of divorce, on the ground that there has been no restitution of conjugal rights between him and his wife, Sm. Gouri, rani. Roy, in spite of an earlier decree dated January 16, 1960, for just that : restitution of conjugal rights. 2. THIS is the second failure of the husband Jadu Gopal's petition. The first failure was reversed by this Court which on July 15, 1964, directed a remit on the ground that the records containing the signature of the husband in the requisite form, in token of his consent to the wife's operation in November 1960 in a nursing home, were not made use of at the trial : the first trial. The second trial, had towards 1965's end and early in 1966, reveals that the records, for production of which this court directed a remit, were destroyed under the rules of the nursing home concerned. 3. AND this is one of the two points on which the learned Advocate General, appearing for the husband-appellant, opens the appeal : that the direction given by this Court remanding the case has not been carried out. 4. A contention as this merits two answer is : it is the appellant's case which it is for him to prove. That indeed is trite. Yet if any authority is needed, it is there in the speech of Lord Normond in (I) presten jones v. prestone jones, (1951) A. C. 391 at page 405 : "in divorce proceedings it is the petitioner to prove his case whether the action is defended or not. " So, it was the duty of the husband appellant to call for the records of the nursing home immediately after the judgment of remand by this Court on July 15, 1984, the records of the case having reached the Court below on September 24 following. And the records of the nursing homs were destroyed in, October or November, 1965, as Nurse Bina nag, the respondent's 7th witness says, though under the rules, as spoken to by dr. Shome, the respondent's 6th witness they were liable to be destroyed 3 years after November 1960 : sometime towards 1963's end. And the records of the nursing homs were destroyed in, October or November, 1965, as Nurse Bina nag, the respondent's 7th witness says, though under the rules, as spoken to by dr. Shome, the respondent's 6th witness they were liable to be destroyed 3 years after November 1960 : sometime towards 1963's end. It is futile to nurse a grievance that the wife respondent took no steps to get such records in evidence at the second trial before they were destroyed. It is not her case for divorce. It is her husband's case for divorce. 5. THE second answer, as pointed out by Mr. Madhusudan Banerjee, appearing for the respondent, is : primary evidence having ceased to be available, there is excellent secondary evidence thereof. Dr. R. N. Nag, a gynaecologist of eminence and the respondent's witness No. 2, speaks of the husband appellant having taken his wife, the respondent, to him for operation and having paid him his fees. He identifies too the husband, who first tried to avoid such identification by having left the court. Dr. Shome, the respondent's witness no. 6, speaks of the appellant having visited his wife during her stay in the nursing home. Nurse Bina Nag, the respondent's witness no. 7, speaks of the husband having signed in her presence the consent form for the operation. So, the husband appellant having taken his wife to the gynaecologist and then to the nursing home for the operation looks patent. The two different addresses given of the wife, one in the patients' register, ext. B. written by Dr. R. N. Nag in. his own hand, as No. 107-2-9 monoharpukur Road, her brothers' place, and another in the admission register of the clinic, ext. C. as No. 15 A. C. Banerjee Road, her matrimonial home, - on which we have been addressed on behalf of the appellant - does not make it look any the less patent. "c/o. Jadu gopal Roy," just the name of the appellant, is in both the registers. Absence of such "c/o. " address in some of the other entries in the admission register, commented upon, appears to be neither here nor there. 6. THUS, there has been substantial compliance with the direction in the judgment of remand. Indeed, in the intervening circumstances, no further compliance was possible. The first point on which the appeal has been opened, therefore, fails. 6. THUS, there has been substantial compliance with the direction in the judgment of remand. Indeed, in the intervening circumstances, no further compliance was possible. The first point on which the appeal has been opened, therefore, fails. The second point is : the result of the operation, the wife had undergone, is not known and, therefore, her impotence furnishes a good enough ground for divorce. Not at all. That is not the case the husband comes to Court with, as correctly pointed out by Mr. Banerjee, appearing for the respondent. He seeks divorce because of the failure of the wife to honour the earlier decree for restitution of conjugal rights. Was the husband then 'up and about' for securing restitution of conjugal rights with an impotent wife ? Therefore, his very earlier suit proclaims his wife to be potent. 7. AFTER remit, an amendment was sought on November 7, 1964, seeking to incorporate the wife's impotence as a ground for divorce. That amendment was rejected right up to this Court. So, the appellant's case on this point is not arguable even. 8. MORE upon evidence, cohabitation after the decree for restitution of conjugal rights is found. We endorse that finding. Everything apart, there is a. paramount consideration which must not be lost sight of. The parties were married, in 1949. And the charge of the wife's impotency was brought for the first time on November 7, 1964 - some fifteen years later - after a prior suit in 1957 for just the opposite of what impotency connotes : restitution of conjugal rights. So, take it that the amendment prayed for has been. allowed, and proceed. This sort of most improper delay of 15 years, the positive law now embodied in section 23, subsection (1), clause (d), of the Hindu Marriage Act, 25 of 1955, then stands between the bus-band appellant and a decree of divorce and such positive law on delay is rested on the doctrine of want of sincerity. The husband abiding by the marriage for 15 years, and, what is more, seeking restitution of conjugal rights meanwhile is a husband prosecuting his action on the ground of the wife's impotency far a side-motive. The vigilant, and not the sleepy, are assisted by the laws, as the maxim goes. Or as observed in (2)Mortimer v. Mortimer, (1820) 2 Hags. Con. The vigilant, and not the sleepy, are assisted by the laws, as the maxim goes. Or as observed in (2)Mortimer v. Mortimer, (1820) 2 Hags. Con. 210, quoted by Costello J. in (3) King v. King a. I. R. 1930 Calcutta 418: "the Court will be indisposed to relive a party who appears to have slumbered in sufficient comfort. " the husband appellant jadu Gopal roy has slumbered so. We see in such conduct acquiescence on his part all these years, even if the ground of impotency is true, which it is not, and which, indeed, it cannot be, because of his earlier action for restitution of conjugal rights with his wife, showing thereby that she is a woman, certainly petent and not impotent. Really, it then comes to Jadu Gopal saying : 'give me a remedy for a grievance I have not felt all these years - and 15 years at that but we sit here in court to grant a remedy for a grievance felt, not for a grievance not felt. So considered too, the husband cannot get the relief he prays the court for even on the ground of the wife's so-called impotency. 9. IN (4) G (The Husband) V. M (The Wife), (18s5) 10 A. C. 171, Earl of selborne, L. C., missed any rule of positive law in the doctrine of 'sincerity, or want of sincecity, along with which goes the doctrine of promptitude too. To quote lord Penzance from (5) M (falsely called c) v. C, (1872) 2 P and D at 419: "relief in suits of his nature is never accorded by the Court unless the petitioner be prompt in seeking it, and sincere in the motive for doing so. " jadu Gopal, the evidence completely satisfies us, shows neither : promptitude or sincerity, in so far as he wants to rest his case on the ground of the wife respondent's impotency. And the rule of positive law, the Lord Chancellor missed, is here right in Section 23, subsection (1), clause (d), of the Hindu Marriage Act, 21 of 1955, as just noticed. 10. THEN, the attitude of the husband here appears to be in sad contrast with that of the wife. Jadu Gopal, as he emphasizes more than once, is not ready to accept his wife Gouri Rani, even if she is ready to come to him. 10. THEN, the attitude of the husband here appears to be in sad contrast with that of the wife. Jadu Gopal, as he emphasizes more than once, is not ready to accept his wife Gouri Rani, even if she is ready to come to him. Gouri Rani, on the other hand, never unwilling to go to her husband, is ready ever to go to him and to live with him. So, the husband's action looks mala fide all the more. In the result, the appeal fails and. is dismissed with costs, which we assess in a lump at 20 gold mohurs, in addition to the costs paid already to the respondent gouri Rani Roy.