K. Ramaswamy v. Esther Johney — 1987 DIGILAW 348 (MAD)

ORDER K.M. Natarajan, J. 1. The unsuccessful husband before both the Courts below has preferred this appeal challenging the legality and correctness of the order of dismissal of the petition filed by him for a declaration that the marriage between him and the respondent was null and void and for divorce. 2. The case of the appellant is that he is a Hindu, that the respondent is a Christian and that their marriage was solemnised under the Special Marriage Act, in the presence of the Marriage Registrar, Koilpatti, on 25.10.1972. The said marriage was not a voluntary one, but it was done under the compulsion and coercion exercised by the parents and relations of the respondent. It is also alleged that the respondent had not come to the age of 18 and hence their marriage is not valid. Lastly it was alleged that even before their marriage, the respondent was having illicit intimacy with one Sankaralingam alias Durai Pandian, that the above fact was concealed by the respondent and her parents, that even after the marriage, she was having illicit intimacy with the said person and that the child born to the respondent was only through the said Sankaralingam. 3. The case of the petitioner was resisted by the respondent who would contend that she had completed the age of 18 years on the date of the marriage and that the allegation that the petitioner was coerced to marry her is false. She denied having had illicit relationship with Sankaralingam. She would claim that the child was born to her only through the petitioner. 4. The trial Court framed three points for determination and found all of them in favour of the respondent and held that the petitioner failed to establish that he was coerced to marry the respondent, that the respondent had completed 18 years of age on the date of marriage and that the petitioner failed to establish the alleged adultery with Sankaralingam after considering the evidence, both oral and documentary, adduced on behalf of both the parties. Aggrieved by the same, the petitioner herein filed an appeal before the learned District Judge, Tirunelveli, who confirmed the finding with regard to the points that the marriage of the respondent was celebrated out of the free will of the petitioner and the alleged adultery with Sankaralingam is not true. Aggrieved by the same, the petitioner herein filed an appeal before the learned District Judge, Tirunelveli, who confirmed the finding with regard to the points that the marriage of the respondent was celebrated out of the free will of the petitioner and the alleged adultery with Sankaralingam is not true. But, so far as the question of age of the respondent is concerned, the learned District Judge came to the conclusion that the respondent was born on 10.2.1955 in view of Exs. Al and A2, which are birth extracts and Baptism register, in preference to the S.S.L.C. book, Ex. B11, and the record sheet Ex. B12 and consequently found that she has not completed the age of 18 years on the date of the marriage. The learned District Judge negatived the relief prayed for by the appellant, on the ground that admittedly there was a delay of three years in instituting the petition and he is not entitled to the relief as per Clause (e) of Sub-sec(1) of Section 34 of the Special Marriage Act, 1954. Aggrieved by the same, this appeal is filed. This appeal is admitted on the following substantial question of law: Whether Section 34(1)(e) of the Special Marriage Act, 1954 would apply to this case in the manner in which it has been construed by the lower appellate Court. According to the learned Counsel Mr. K. Ramaswami, in view of the fact that the marriage itself is void, the Court has no option except to declare the same as void and ought not to have denied the relief of divorce prayed for by the appellant and that the Court below has not properly construed the word 'unnecessary or improper delay' in instituting the proceedings and that has led to the dismissal of the appeal. In this case, it is not in dispute that the marriage was celebrated on 25.10.1972, and that a son was born to the respondent on 2.9.1973. The contention of the appellant that the marriage was celebrated by compulsion and coercion has been found against the appellant by both the Courts. Similarly, the allegation that she was living in adultery with Sankaralingam was also not established. It is seen that the respondent filed a petition for maintenance in M.C. No. 10 of 1975. He had admittedly obtained the birth register extract Ex. Similarly, the allegation that she was living in adultery with Sankaralingam was also not established. It is seen that the respondent filed a petition for maintenance in M.C. No. 10 of 1975. He had admittedly obtained the birth register extract Ex. Al on 16.12.1974 and the certificate copy of the Baptism register Ex. A2, on 9.1.1975. He had also mentioned in his counter-statement in M.C. No. 632 of 1974 (certified copy is Ex. B16) that his wife had not completed the age of 18 years when the marriage was celebrated. Hence, it is clear that he had knowledge about this fact even in December, 1974. But the petition for divorce was filed only on 19.9.1977, nearly three years thereafter. Absolutely no explanation is offered in the petition and in the evidence for the inordinate delay in preferring the petition for divorce. In fact, my attention was drawn to the evidence of the petitioner wherein he has stated that there is no reason for the delay in filing the petition on the ground that she has not completed the age of 18 at the time of marriage. It is seen from Section 34 of the Special Marriage Act that certain conditions are stipulated before a marriage is to be declared null and void. The relevant provision which deals with the delay in instituting proceedings is Clause (e) of Sub-sec(1) of Section 34, which reads that in any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court is satisfied that there has not been unnecessary or improper delay in instituting the proceedings then, and in such a case but not otherwise, the Court shall decree such relief accordingly. Applying the said provision, the learned appellate District Judge negatived the claim of the appellant. The learned District Judge relied on the decision of the Mysore High Court reported in Chimmappa v. Thimmayya A.I.R. 1972 Mys. 234, wherein it was held: Where the husband first came to know that the wife had committed adultery 4 to 5 years prior to the filing of the petition, the decree for divorce could be refused on the sole ground of unnecessary and improper delay in instituting the proceedings. 234, wherein it was held: Where the husband first came to know that the wife had committed adultery 4 to 5 years prior to the filing of the petition, the decree for divorce could be refused on the sole ground of unnecessary and improper delay in instituting the proceedings. Learned Counsel for the respondent drew my attention to a decision of a Division Bench of the Andhra Pradesh High Court consisting of P. Jaganmohan Reddy, C.J. and Chinnappa Reddy, J. (as he then was) reported in K. Immayanthi v. Rama Rao (1969)1 An. W.R. 275. That was also a case where the marriage took place under the provisions of the Special (Marriage Act, 1954. Seven years after marriage, the respondent-husband filed a petition under Section 24 of the Special Marriage Act of 1954 for a declaration that the marriage solemnised between him and the appellant was void, on the ground that he was below 21 years of age on the date of marriage, that the consent of his guardian had not been obtained, as required under Section 2(5) of the Special Marriage Act. The District Judge granted the declaration. On appeal to the High Court, it has been held as follows: The status conferred by marriage and the consequences that flow from it, particularly after years of cohabitation cannot be ignored. The consequence with regard to the children of the marriage are so serious and far-reaching that it will be unjust and improper to give to individuals, the choice of challenging the validity of a marriage when they like. In the present case, the grievance of the respondent, in truth, is not that the marriage is invalid, but that it is unhappy, the remedy which he wanted all these years was a dissolution of the marriage and not a declaration that it was null and void. Having failed in his attempts to induce the respondent to agree to a divorce he is now seeking to get rid of an unhappy marriage by labelling it as a void marriage though for seven years he was content to recognise it as a valid marriage. It would be unfair and inequitable to the wife and the children of the marriage to permit him to do so after a lapse of so many years. Further it is impossible to hold that there has not been any unnecessary or improper delay in instituting the proceedings. It would be unfair and inequitable to the wife and the children of the marriage to permit him to do so after a lapse of so many years. Further it is impossible to hold that there has not been any unnecessary or improper delay in instituting the proceedings. In the instant case, it is seen that the wife had filed a petition for maintenance and to get over the same, the husband filed the petition about 2-1/2 years later that he came to know that his wife (respondent) had not completed 18 years of age at the time of the marriage. A son was also born to them in 1973. Their marriage was admittedly celebrated in 1972. In the circumstances, it is impossible to hold that there has not been any unnecessary or improper delay in instituting the proceeding. On the other hand, it is unfair and inequitable to the wife and the children of the marriage to permit him to do so after a lapse of so many years as rightly observed in the above quoted decision. 5. Learned Counsel for the appellant Mr. K. Ramaswami drew my attention to the decision of this Court in Pavunambal v. Ramasami, wherein Balasubrahmanyan, J. had an occasion to consider the scope of Section 23(1)(d) of the Hindu Marriage Act and consequently dealt with the epithet 'unnecessary or improper delay'. That was a case, where the marriage took place between the two Hindus in 1957. The wife moved the Court in 1974 to have it declared a nullity on the ground that her husband was already married. By that time, the husband was dead. The first wife also died in 1958. The Sub Judge recorded evidence and at the end of the enquiry entered the finding that the marriage was bigamous; but dismissed the petition on the ground of delay. The same was confirmed by the District Judge. On appeal to the High Court, the learned Judge held: It would be a mistake to suppose that the element of delay would override other considerations. In any case, the time-lag in instituting the proceedings could by no means be over-emphasised, but must be considered in the proper setting, and in the context of the various other statutory considerations, the relative importance and cumulative effect of which the Courts had to decide for itself in a reasonable and just fashion. In any case, the time-lag in instituting the proceedings could by no means be over-emphasised, but must be considered in the proper setting, and in the context of the various other statutory considerations, the relative importance and cumulative effect of which the Courts had to decide for itself in a reasonable and just fashion. Ultimately, allowing the appeal, the learned Judge held: The fact that the learned Judge could record his finding in such categorical terms must be proof that the passage of time had not corroded either the source of evidence or the means available for their evaluation.... The dismissal was both unnecessary and improper.... The ratio laid down in the above quoted decisions under Section 23 of the Hindu Marriage Act is not applicable to the facts of the instant case and that too under Section 34(l)(a) of the Special Marriage Act. In the said decision, the learned Judge has also observed that the question whether there is improper and unnecessary delay has to be decided with reference to the facts of each case. Hence, the said decision is not helpful to the case of appellant. In view of the above circumstances, I am of the view that the lower appellate Judge has rightly construed that there is improper and unnecessary delay in instituting the proceedings and this is a fit and proper case where the relief prayed for by the appellant has to be refused. The learned Counsel for the appellant brought to my notice para 541 at page 216 of Halsbury's Laws of England, 4th Edn., 13th Volume where it was stated that in cases of void marriages neither delay nor conduct constitutes a bar to a decree. He also quoted the decision reported in Kassim v. Kassim (1962)3 All E.L.R. 426, where it was held: Where, as in the present case, a marriage was void Ab Initio here was no room for the operation of R.S.C. Order 25, Rule 5, as to the making of declaration, the Court had no option but to pronounce a decree of nullity under its jurisdiction inherited from the ecclesiastical Court, such a decree being a declaration that the marriage was and always had been null and void, and the jurisdiction to grant it not being a discretionary jurisdiction. But, as rightly submitted by the learned Counsel for the respondent, in view of the specific provision incorporated in the Special Marriage Act, under Section 34 wherein it has been provided that even in case of void marriage, if there has been improper and unnecessary delay in instituting the proceedings such a relief could not be granted, the appellant is not entitled to the relief prayed for. There is nothing to show that there was any such corresponding provision in the English law and those decisions have no relevance to the facts of the case. For all these reasons, I hold that Section 34(1)(e) of the Special Marriage Act, 1954 is applicable to the present case in the manner in which it has been considered by the lower Court and the substantial question of law is answered accordingly in favour of the respondent. 6. In the result, the appeal fails and stands dismissed. In the circumstances of the case, there will be no order as to costs.