M. M. Dutt, R. K. Sharma ( 1 ) THIS appeal is at the instance of the petitioner husband Pranab Biswas and arises out of the judgment and order of dismissal passed by the Third Court of the Additional District Judge, Howrah, on 31. 8. 71 in Mat. Suit No. 1 of 1970. ( 2 ) STATED in short the petitioner's case was that entered into a negotiated marriage with the respondent No. 1 on or about the 10th of Falgun 1372 B. S. , corresponding t the 22nd of February 1966. The marriage was solemnized according to the Hindu rites. Soon after the marriage the OPPOSITE PARTY respondent No. 1 as bride wet to the petitioner's house at Salkia and there she was found vomiting and ailing. On medical examination it was detected that she was pregnant at the time of marriage and had been carrying for about three or four months. The marriage had not been consummated between the parties and the petitioner got a rude shock on account of the unchastity of this spouse. The respondent wife was first removed to a friend's house where she having admitted that she was in love with respondent No. 2 Ranjit Kumar Sinha Roy and had conceived through him, she was taken to the house of her father at Naihati and was left there. The petitioner husband was surprised to find that a fraud had been practiced upon him by giving him in marriage a pregnant girl and so he wanted to avoid the marriage. In this behalf he consulted a lawyer and was advised to institute a suit after expiry of three years from the date of marriage for annulment of the marriage. Shortly before the proceedings were started some papers came to the hands of the petitioner husband through his friend who happened to be known to respondent no. 2 aforesaid, and from those letter the petitioner-appellant came to know that respondent No. 1 was living in adultery. That on account of adulterous life led by the respondent wife and regular offence committed by her, the petitioner-appellant found himself humiliated as the offence of adultery was committed deliberately and with intention to injure the feelings and susceptibilities of the petitioner husband. That on account of adulterous life led by the respondent wife and regular offence committed by her, the petitioner-appellant found himself humiliated as the offence of adultery was committed deliberately and with intention to injure the feelings and susceptibilities of the petitioner husband. The petitioner appellant was also threatened by several unknown persons with assault and physical injury and the petitioner-appellant became afraid for his life and there arose reasonable apprehension in his mind that living with respondent No. 1 would be harmful to him. ( 3 ) ON the basis of aforesaid facts and pleading, the petitioner husband prayed for a decree annulling his marriage under S. 12 of the Hindu Marriage Act 1955 (hereinafter called the Act ). Alternatively he prayed for a decree of divorce under S. 13 of the Act and/or for a decree for judicial separation under S. 10 of the Act. ( 4 ) THE suit was contested by respondent No. 1 Mrinmayee Dasi alone. She admitted in her written statement that she was married to the petitioner-appellant on the 10th of Falgun 1372 B. S. according to the Hindu rites and after marriage she was taken to the house of her husband where she stayed for some time. The material allegations made against her in the petition filed by the husband were all denied. She contended that her husband was I love with some other girl and wanted to marry her by getting rid of the petitioner. She denied that she was pregnant at the time of her marriage and she also denied that she was in love with O. P. respondent No. 2 Ranjit Kumar Sinha Roy. She stated that she was desirous of making home with her husband and in the premises her petitioner husband was not entitled to the reliefs prayed for by him. ( 5 ) BEFORE the learned Additional District Judge letters marked exhibit I series purported to have been written by Mrinmayee Dasi to her lover Ranjit Kumar Sinha Roy or to her mother or to her husband or to some other person were produced in evidence. A number of witnesses were examined by either side and the learned Additional District Judge considered the matter and dismissed the suit. ( 6 ) MR. Chakravorti, the learned Advocate for the appellant-husband, submits that the learned court below decided issue no. A number of witnesses were examined by either side and the learned Additional District Judge considered the matter and dismissed the suit. ( 6 ) MR. Chakravorti, the learned Advocate for the appellant-husband, submits that the learned court below decided issue no. 3 correctly and held that the respondent wife was pregnant at the time of marriage by some person other than the petitioner. But the learned court below in deciding issues no. 1, 5 and 6 arrived at a wrong conclusion and held that the petitioner husband was not entitled to a decree of nullity as the proceeding had not been instituted within one year from the date of marriage. Mr. Chakravorti submits that the learned Additional District Judge took an erroneous view of law in coming to that conclusion. In view of the contention raised by Mr. Chakravorti it is necessary for us to see whether the learned court below came to a wrong conclusion in holding that the petitioner husband was not entitled to a decree under S. 12 (1) (d) of the Act. Mr. Chakravorti strenuously tried to persuade the court to hold that under S. 23 (1) (d) of the Act, it is for the Court to grant a decree if there has not been any unnecessary or improper delay in instituting the proceedings. Mr. Chakravorti submits that in this case the delay of three years has been amply explained and the rigidly of time limit of one year imposed by S. 12 (2) ( (b) (ii) stands tempered and mitigated by virtue of the enactment of the general provision contained in S. 23 (1) (d) of the Act. In this connection Mr. Chakravorti seeks assistance from the case of S v. R reported in Air 1968 Delhi 79. But that case was one which fell under the purview of S. 12 (1) (a) to which the bar of S. 12 (2) (b) (ii) was not attracted. Therefore, he can derive no assistance in support of his contention from that source. We also hold for reasons presently to be given that this argument that S. 23 (1) (d) is of help to him has not substance at all. Therefore, he can derive no assistance in support of his contention from that source. We also hold for reasons presently to be given that this argument that S. 23 (1) (d) is of help to him has not substance at all. ( 7 ) SECTION 12 (2) (b) (ii) states: 12 (2)?notwithstanding anything contained in sub-sectio9n (1), no petition for annulling a marriage - (b)on the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied - (ii)that proceedings have been instituted in the case of a marriage solemnized before the commencement of the Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage. ? clause (d) of sub-s. (1) of S. 12 referred to above says: 12 (1)?any marriage solemnized, whether before or after this commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: - (d)that the respondent was at the time of the marriage pregnant by some person other than the petitioner. ? ( 8 ) ADMITTEDLY the marriage in question had been solemnized on the 22nd February 1966 i. e. long after the 18th May 1955, when the Act came into force. Therefore, in order to succeed in avoiding the marriage on the ground of pregnancy of the respondent wife at the time of marriage by some person other than the petitioner it was incumbent upon and imperative for the petitioner-appellant to institute the proceedings within one year from the date of the marriage. Admittedly, the appellant-husband started the proceedings after waiting for three years. Therefore, S. 12 (2) (b) (ii) stands as a bar against the appellant-husband's success in the proceedings. ( 9 ) NOW it is to be seen whether this bar can be got rid of by invoking the aid of S. 23 (1) (d ). Section 23 (1) (d) says -23 (1)?in any proceeding under this Act, whether defended or not, if the court is satisfied that - (d)there has not been any unnecessary or improper delay instituting the proceeding then, and in such a case, but not otherwise, the court shall decree such relief accordingly. ? Section 23 (1) (d) says -23 (1)?in any proceeding under this Act, whether defended or not, if the court is satisfied that - (d)there has not been any unnecessary or improper delay instituting the proceeding then, and in such a case, but not otherwise, the court shall decree such relief accordingly. ? ( 10 ) THIS general provision in the Act is not intended to nullify and frustrate the period of one year's limitation imposed by S. 12 (2) (b) (ii) upon the suitor seeking relief under S. 12 (1) (d ). Section 23 does not intend to free the hands of the court from the fetters of one year's limitation which S. 12 (2) (b) (ii) imposes in giving relief by having the marriage declared a nullity by a decree on the ground in S. 12 (1) (d ). Any suitor who wants to avoid the marriage entered into by him on the ground given in S. 12 (1) (d) of the Act must start the proceeding within the time limit prescribed for that purpose by S. 12 (2) (b) (ii ). There is no escape from it whatsoever. On the other hand s. 23 (1) (d) is there in the Act for a contrary purpose. It enables the court to refuse relief to the suitor even when the suitor is under no bar of limitation and is otherwise entitled but has instituted the proceedings after an unnecessary and improper delay. For any case failing under, for example, Ss. 10 or 13 there is n outward time limit prescribed for presenting a petition. Even so a suitor is under obligation because of S. 23 (1) (d) to institute proceedings without unnecessary and improper delay. Therefore, what emerges from the above discussion is that S. 23 (1) (d) enables the Court to refuse relief to late Latifs even under other sections kept free from the bar of limitation should they approach court after unnecessary and improper delay. Anyway, as in our view s. 12 (2) (b) (ii0 creates an absolute bar, the appellant-husband who instituted the proceedings after three years from the date of marriage cannot get any relief under S. 12 (1) (d) of the Act, no matter what explanation, good, bad or indifferent, he puts forward to explain the delay. Anyway, as in our view s. 12 (2) (b) (ii0 creates an absolute bar, the appellant-husband who instituted the proceedings after three years from the date of marriage cannot get any relief under S. 12 (1) (d) of the Act, no matter what explanation, good, bad or indifferent, he puts forward to explain the delay. Since the appellant is not entitled to any relief under S. 12 (1) (d) of the Act, it is futile for us to enter into the question whether or not the respondent wife was pregnant on the date of marriage by a person other than the appellant before us. The court below need not have entered into an enquiry on this point as the enquiry whatever its result was a superfluity and of no consequence for the purpose of coming to a decision whether or not the petitioner husband was entitled to relief under S. 12 (1) (d) of the Act. In our opinion uncalled for enquiry or unnecessary investigations in matrimonial suits ought to be scrupulously avoided because an unnecessary finding may come to stand in the way of reconciliation or rapprochement that may be effected or hoped for. ( 11 ) THE learned Additional District Judge rightly held that S. 5 of the Limitation Act was of no help to the petitioner husband in view of the provision contained in S. 29 (3) of the Limitation Act. Mr. Chakravorti does not contend before us that S. 5 of the Limitation Act can rescue the petitioner from the position he has placed himself in. Hence the appellant husband can claim no relief under S. 12 (1) (d) of the Act. ( 12 ) IN the court below the petitioner-appellant sought relief inter alia on the ground of desertion by the wife. The learned court below rightly pointed out in its judgment the specific evidence on the point to show that if there was a case of desertion at all then the offending party was the petitioner husband himself and not the respondent wife. Since this ground is not canvassed before us in appeal we need only say that the learned court below correctly held that the factum of desertion was not established within the ambit of S. 10 (1) (a) of the Act and the petitioner-appellant was not entitled to any relief on that score. Since this ground is not canvassed before us in appeal we need only say that the learned court below correctly held that the factum of desertion was not established within the ambit of S. 10 (1) (a) of the Act and the petitioner-appellant was not entitled to any relief on that score. ( 13 ) SIMILARLY, in this court the contention that the respondent wife was living in adultery is not pressed. The learned court below after adequate analysis of the evidence rightly held that there was o evidence to lead the court to the conclusion that the respondent wife was living in the petitioner-appellant was not entitled to any relief. ( 14 ) BEFORE us Mr. Chakravorti contends that as the respondent wife was guilty of having sexual intercourse with a person other than her husband, the appellant husband was entitled to relief under S. 10 (1) (f) of the Act. It appears from the record that this contention was not at all raised in the court below and no argument was advanced in this behalf there. Before us, Mr. Chakravorti contends that since the evidence is sufficient on record to prove this allegation, the petitioner-appellant should be granted a decree for judicial separation on that ground. In this connection to support his contention that fresh ground can be urged in appeal if evidence was o record, Mr. Chakravorti relies upon a case reported in AIR 1969 Madras 235; Dr. H. D. Vira Raddi, appellant v. Kistamma, respondent, and draws our attention to certain observation made by Rama Prasad Rao, J, who delivered a separate but concurrent judgment. We do not, nor does Mr. Bhattacharya the learned advocate for the respondent wife, dispute that proposition of law. Bearing in mind that this is a new contention raised before us we shall proceed to consider whether the allegation of the respondent wife's having sexual intercourse with a person other than the husband after the solemnization of the marriage is established or not. Through allegation of adulterous conduct of the respondent wife after the marriage is made in para 8 of the petition, there is no particular of the alleged offence given. The allegation made in para 8 of the petition was traversed by the respondent wife in para 13 of her written statement as false and baseless. Through allegation of adulterous conduct of the respondent wife after the marriage is made in para 8 of the petition, there is no particular of the alleged offence given. The allegation made in para 8 of the petition was traversed by the respondent wife in para 13 of her written statement as false and baseless. To come to evidence on the point the petitioner-appellant who was examined as witness no. 8 for the petitioner stated in his examination in chief, ?i came to know afterwards that Mrinamayee continued to mix with Ranjit and another relation of her's. , His name was Subhash who was being called Sejda by Mrinmayee. ? note : (In paragraph 15 to 18 (portion) his lordship discussed the evidence on record on the question if the appellant was entitled to a decree for judicial separation on the ground of adultery) - Ed. ( 15 ) ). . . . . . . . . We have already said that this is a fresh ground urged to prop up the appellant's case in this court; but on analyzing the evidence on record we find it hopelessly unreliable and inadequate to substantiate the allegation of any act of adultery. Therefore, the appellant is not entitled to any relief on the ground of adultery. ( 16 ) THE next ground upon which relief in the form of judicial separation is sought for in this court is the ground of cruelty under S. 10 (1) (b) of the Act. This too is a ground canvassed for the first time in this Court. Let us now turn to the contents of the petition and see how the foundation for the allegation of cruelty is laid down there. In para 9 it is stated, ?that on account of such adulterous life and regular offence committed by the respondents your petitioner has become a victim of cruelty as the offence is being committed with deliberate intention of wounding and humiliating your petitioner who is also threatened by several unknown persons of assault and physical injury on behalf of the respondents and your petitioner is afraid of his life and there is a reasonable apprehension in the mind of the petitioner that it will be harmful for the petitioner to live with the respondent no. 1. ? 1. ? note : (In paragraphs 20 to 26, his lordship discussed the evidence on the question it the appellant was entitled to a decree for judicial separation on the ground of cruelty) - Ed. ( 17 ) THIS brings us right back to S. 10 (1) (b) of the Act. The relevant provision has already been given above. The use of the verb 'treat' made by the section in our opinion is indicative of the fact that the act on the part of the offending spouse is required to be volitional, intentional, deliberate and designed to be cruel. Of course, cases and cases differ and there may arise some cases whereby some indirect or covert act cruelty may be caused. But a single, solitary act of cruelty followed by remorse does not fall within the mischief of the section unless it satisfies the requirement of S. 10 (1) (b) wholly. Be that as it may, in the case before us, we hold that the requirement of S. 10 (1) (b) has not been satisfied by the act complained of. All acts of cruelty are not covered by S. 10 (1) (b) which only deals with and takes notice of some virulent acts of cruelty which causes the sort of apprehension envisaged by the Act. Hence the solitary act complained of followed by remorse does not at all constitute such a cruelty as has to be made out to attract the provisions of S. 10 (1) (b) of the Act. The averment that a lawyer of Howrah Court advised the petitioner-appellant to institute proceedings after 3 years from the date of the marriage is a clear indication that the advice was sought for with a view to obtaining divorce and the advice was given keeping in view S. 14 (1) of the Act. The content of the petitioner filed in this case shows that relief in the form of divorce is sought for on the ground of the wife's living in adultery. The husband has failed to establish that the wife was living in adultery. Therefore adding two and two, so to speak, it can be seen that grounds for judicial separation under S. 10 and grounds for avoiding the marriage under S. 12 of the Act were not originally contemplated when the Howrah lawyer was consulted. The husband has failed to establish that the wife was living in adultery. Therefore adding two and two, so to speak, it can be seen that grounds for judicial separation under S. 10 and grounds for avoiding the marriage under S. 12 of the Act were not originally contemplated when the Howrah lawyer was consulted. So the lawyer advised the petitioner-appellant to wait for a period of 3 years from the date of the marriage before presenting the petition. In this view of the matter also it has clear that relief under S. 10 (1) (b) has been sought for as an afterthought. It is a sort of fishing venture to secure some relief somehow anyhow. ( 18 ) THE end product of the exercise undergone in the above paragraphs is that the petitioner-appellant has not succeeded in making out a convincing case of legal cruelty also. In the result, he is not entitled to a decree for judicial separation on that ground nor is he entitled to any relief whatsoever. ( 19 ) SINCE the petitioner-appellant has failed to make out a case even on the assumption that exhibit 1 series were written by the respondent wife, we do not feel it necessary to enter into the question whether exhibit 1 relied upon by the petitioner was actually written by the respondent wife or not. ( 20 ) NO other point has been urged before us. In the result this appeal fails and is dismissed. In the fact and circumstances of the case, however, we made no order as to costs. ( 21 ) AS no cross objection against a finding lies in this Court by a party who is not affected by the decree passed, the cross objection is dismissed but without costs. M. M. Dutt, J: I agree. Appeal dismissed.