S. vs R. on 17 February, 1967

    S. vs R. on 17/2/1967

JUDGMENT

   (1) The marriage of the appellant with the respondent has been declared a
nullity be the Additional District Judge of Delhi in pursuance of an application
under Section 12 of the Hindu Marriage Act, 1955 (to be hereinafter referred to
as the Act) made by the respondent. The complaint of the respondent was that the
appellant was imptoent at the time of marriage and continued to be so until the
institution of the proceedings. That case has been accepted by the trial Judge.
The decision of the trial Court was affirmed by Khanna, J., sitting singly.
Hence this appeal.

   (2) Shri Parkash Narain, the learned counsel for the appellant questioned the
correctness and legality of the decision in this case on four grounds, namely,-

   "(1) The appellant was prejudiced in his defense because of the fact that the
necessary particulars were nto given by the respondent either in her petition or
in the particulars supplied later;

   (2) the Courts below erred in opining that the respondent has satisfactorily
established that the appellant was imptoent at the time of the marriage and
continued to be so until the institution of the proceedings;

   (3) the Courts below should have dismissed the petition of the respondent on
the ground of lack of sincerity on her part or at any rate on the ground that
she had approbated the marriage; and

   (4) the same should have been at least dismissed on the ground that the
petitioner was guilty of laches."

   While examining the appellant's contentions we cannto lose sight of the fact
that the two Courts below. After a careful examination of the material on record
were pleased to accept the version of the respondent. In the matter o f
appreciation of oral evidence, the appellate Court attaches a great deal of
weight to the opinion of the trial Judge who had the benefit of observing the
demeanour of the witnesses in the box. In this case, the conclusions reached by
the trial Court have been affirmed by a learned Judge of the High Court and that
after carefully analysing the evidence on record and weighing the probabilities
. It is true that in a Letters Patent Appeal, the powers of the High Court are
very wide. But a s a matter of practice, the learned single Judge's finding on
questions of fact more particularly when it accords with the findings of the
trial Court are treated with great deal of respect. They are nto interfered with
except for every good reasons.

   (3) Bearing in mind the above principles, we shall now proceed to examine the
contentions advance by the learned counsel for the appellant.

   (4) The appellant married the respondent in 1948. ..... They lived together
from 1948 to 1956. During that time, they extensively travelled in various parts
of the world. After 1956 the respondent and the appellant did nto live together.
.....The respondent filed the petition for declaring her marriage with the
appellant nullity on March 19, 1962. These are undisputed facts.

   (5) We shall now take up the contentions advanced on behalf of the appellant
for examination.

   (6) There is no substance in the contention that the particulars given by the
respondent as regards the imptoency of the appellant are inadequate. There is no
issue on that point. That contention does nto appear to have been taken either
during the trial of the case of before the learned single Judge. Such a plea
cannto be entertained at this state. We have gone through the pleadings. Even on
merits we see no substance in that contention.

   (7) The burden of establishing that the appellant was imptoent at the time of
the marriage and continued to be so until the institution of the proceeding is
no doubt on the respondent. As mentioned earlier, the two Courts below have
accepted the evidence adduced by the respondent in that regard. The findings of
the Courts below that the appellant was imptoent at the time of the marriage and
that he continued to be so until the institution of the proceedings are
essentially findings of fact. Those findings are primarily based on oral
evidence.

   (After discussing the evidence in Para the judgment proceeded;-) We think
that there is satisfactory evidence to support the conclusion of the Courts
below that the appellant was imptoent at the time of the marriage and that he
continued to be so till 1956 when the respondent chose to leave him.

   (9) Shri Prakash Narain contended that even if we accept the evidence of the
respondent that the appellant was imptoent at the time of the marriage and that
he continued to be so till 1956, there is no evidence to show that he continued
to be imptoent after 1956 or that he was imptoent at about the time of the
institution of the proceeding. It is nto the case of the appellant that he
ceased to be imptoent after 1956. On the facts established, the Courts below
were right in presuming that the appellant continued to be imptoent even after
1956. It is nto the appellant's case that he gto himself treated for his
imptoence after 1956. As he grew older he is nto likely to have acquired
ptoency.

   (10) Next it was urged that the respondent's application should have been
dismissed on the basis of the rule laid down by the House of Lords in G.v. M.,
(1855) 10 Ac 171. The rule in question is known as the "doctrine of want of
sincerity". The said rule was also applied to cases arising under the Indian
Divorce Act, See H. v. H., Air 1928 Bom

   279. This was done evidently; because of Section 7 of the Indian Divorce Act,
which requires the Courts in India to Act and give relief on principles and
rules which, in the opinion of the said Courts, are as nearly as may be
conformable to the principles and rules on which the Court for Divorce and
Matrimonial Causes in England for the time being acts and gives relief. It is
clear form the decision of Selborne, L. C., who rendered the principal judgment
in (1855) 10 Ac 171 that the rule in question was nto recognised in Sctoland. It
is a peculiar English rule, Hence the first thing that we have to see is whether
that doctrine can be applied to cases arising under the Act. The Hindu Law did
nto contemplate dissolution of marriages. Under that law marriages are
sacrosanct. The Act made a serious inroad into that law when it provided for the
dissolution or nullification of marriages. It is an entirely new right created
by the Act. For finding out the scope of that right we must look only to the
provisions of the Act. Section 12 of the Act lays down under what circumstances
a marriage solemnized shall be voidable and under what circumstances a marriage
can be annulled by a decree of nullity. Therefore, in a given case, the Court
has first to see whether the requirements of section 12 are satisfied. Then the
Court has next to see whether even if any ground for granting the relief exists,
the petitioner is nto entitled for the same for any of the reasons mentioned in
Section 23(1) of the Act. Ss.11 to 28 of the Act form a complete code by
themselves as regards the law relating to nullity of marriage and divorce. In
considering the scope of those provisions we cannto fall back on the English
common law. We are in agreement with Shri. A. K. Sen, the learned counsel for
the respondent, that the rule laid down by the House of Lords in (1855) 10 Ac
171 is wholly inapplicable to cases arising under the Act.

   (11) It was said on behalf of the applicant that clause (a) of sub-Section
(1) of Section 23 of the Act merely incorporates the equitable rule laid down in
(1855) 10 Ac 171. That clause reads thus: "In proceedings under this Act,
whether defended or nto, if the Court is satisfied that any of the grounds for
granting relief exists and the petitioner is nto in any way taking advantage of
his or her own wrong or disability for the purpose of such relief then, and in
such a case, but nto toherwise, the Court shall decree such relief accordingly."

   The appellant neither pleaded nor proved that the respondent was in any way
taking advantage of her own wrong or disability for the purpose of geeing the
relief she is seeking. The respondent did nto put forward any disability of her
own for the purpose of getting the relief she is seeking; nor is it proved that
she, in any manner, is taking advantage of her own wrong for getting the said
relief. All that is proved is that after the marriage the appellant had made
certain gifts in favor of the respondent. It is the case of the respondent that
those gifts were made with a view to avoid wealth tax and that plea has been
accepted by the Courts below. Even if we accept the plea of the appellant that
he made those gifts with a view to confer some right on his wife in his affairs
that would nto bring the case within clause (a) of Section 23(1) of the Act.

   (12) We also do nto think the doctrine of "approbate" and "reprobate"
referred to in (1855) 10 Ac 171 is relevant for our present purpose. That
doctrine has no place under the Act.

   (13) Even if we had come to the conclusion that "doctrine of sincerity" or to
put it more correctly., the "doctrine of insincerity" is applicable to cases
under the Act, on the facts of this case, that doctrine would nto have been
attracted. It is true that the appellant transferred in the name of the
respondent substantial sums of money during the years 1948 to 1956. The Courts
below have come to the conclusion is justified by the evidence on record. Those
gifts were nto procured by the respondents by holding out to the appellant that
she would continue to remain as his wife even though he was unable to discharge
his material obligation. Most of the presents were made at a time when it was
nto possible for the respondent to break her marital ties with the appellant.
Till the Act came into force, the respondent had to remain as the wife of the
appellant whether she liked it or nto. It is true that even after the respondent
began to live separate from the appellant, the appellant was paying her a
monthly allowance of Rs.1,000 . That again is nto on the seeking of the
respondent. It is also true that the appellant permitted the respondent to
operate on his bank accounts. The appellant admits that he did so because he did
nto want the respondent to have any financial difficulty during his absence from
India. Even before the appellant and the respondent left for England in 1955 the
appellant had thought of transferring two of his houses to the name of his wife,
evidently with a view to reduce the burden of wealth tax. After the appellant
left for L., the respondent on the advice of Sri. T., the topmost official in
the service of the appellant, forwarded to the appellant a draft for the purpose
of effectuating the transfer previously thought of. But the appellant did nto
execute the necessary document evidently because of the fact that the respondent
had ceased to live with him. The respondent admits that she had transferred a
sum of rupees two lakhs from the account of the appellant to her own account
during the time she had the authority to operate oh his account. Her explanation
for so doing is that at the time of the marriage, her father had given the
appellant a sum of rupees two lakhs as Tilak and as she wanted to put an end to
her marital ties with the appellant, she wanted to take back that money. This
explanation has been accepted by the Courts below. According to the findings
reached by the Courts below, when the respondent transferred the sum of rupees
two lakhs from the account of the appellant to her own account, there were still
about nine lakhs of rupees standing to the appellant's credit in his account.
That circumstances lends weight to the respondent's explanation for drawing the
amount in question. It is true that during the time the appellant was at L.,
there was continuous correspondence between the appellant and the respondent.
From that correspondence it is nto possible to spell out that the tow agreed to
remain as husband and wife after their separation in July 1956. The
correspondence that passed between them thereafter though of very polite nature,
does no means show any warmth between the two. It was formal and business-like.

   (14) Dealing with the "doctrine of sincerity" this is what Selborne, L.C.,
observed in (1885)10 AC171: " the real basis of reasoning which underlies that
phraseology is this, and ntohing more than this, that there my be conduct on the
part of ;the person seeking this remedy which ought to stop that person from
having it; ask for instance, any Act from which the inference ought ;to be drawn
that during the antecedent time the party has, with the knowledge of ;the facts
and of the law, approbated the marriage which he or she afterwards seeks to get
rid of, or has taken advantages and derived benefit 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. Well
now, that explanation can be referred to known principles of equitable, and, I
may say, of general jurisprudence. The circumstances which may; justify it are
various, and in cases of this kind, many sorts of conduct might exist, taking
pecuniary benefits, for example, living for a long time together in the same
house or family ;with the status and character of husband and wife, after
knowledge of everything which it is material to know...." In that very case,
Lord Bramwell had something different to say. This is what he observes: "Now one
word as to this question of "sincerity". It is a most remarkable expression, a
very curious word, and I am nto at all sure that it has nto resulted from this,
that sincerity is a very important matter in ascertaining whether the spouse
complained of is imptoent or nto, and sincerity has been dwelt upon for that
purpose till at last it has been taken to be a separate head of objection to the
complaining party's proceedings. It seems to me very strange/ What the complaint
does in a suit of this sort is to come to the appropriate Court for a
declaration of the truth: "I say that this man is imptoent and was so at the
time of the marriage, and I ask you to declare that fact". The very words of the
summons are, "Declare the truth, that this man was imptoent when he married me:.
The Court say, "No, we will nto, " or the argument is that the Court ought to
say, "No, we will nto -We know that it is true, but we will nto say so"why? In
my opinion a man who has inflicted this cruel wrong upon a woman ought nto to be
heard to object to her complaining, when she comes forward with her complaint of
this wrong that he has done her, unless in some way or antoher he can show that
he sustains some injury from the double matter of her nto having complained
earlier, and of her complaining now. In such a case, I should indeed think that
a law might be made (perhaps it exists, for aught I know), that in some way or
antoher the declaration of the truth should be accompanied by some compensation
to him for the sort of injury which, as I have indicated, might have been done
to him...." The scope of the doctrine of sincerity was further explained in
Clifford v. Clifford, 1948 P.187. Therein a marriage was declared a nullity
twenty-seven years after the marriage. In this case, the respondent wants the
Court to declare her marriage with the appellant a nullity because he was
imptoent at the time of the marriage and he continued to be so until the
institution of the proceedings. The fact that the appellant is imptoent is well
established. We fail to see how lack of sincerity on her part or the fact that
she had earlier approbated the marriage, assuming that those things are
established, can dis-entitle her to the relief to which he is entitled under the
law. Lack of sincerity on her part or her approbation of the marriage cannto
make the appellant ptoent. The want of insincerity on the part of a spouse or
his or her approbation of the marriage may be elements which can be taken into
consideration in deciding whether the complaint of imptoency is true. We think
that the rule of 'sincerity' laid down by the House of Lords will have to be
applied even in cases to which that rule applies, with great deal of caution.

   (15) Lastly, it was said that the relief praved for by the respondent should
be refused as her application was a highly belated one. Unnecessary or improper
delay in instituting the proceeding is undoubtedly a good ground for refusing to
grant any relief under Section 12 of the Act. That much is provided in clause
(d) of sub-Section (1) of Section 23 of the Act. Therefore, the question for
decision is whether there was any unnecessary or improper delay on the part of
the respondent in approaching the Court. It is nto denied that till the Act came
into force in the year 1955, she was tied down to the appellant. There was no
escape from her marriage with the appellant. The evidence in this case
satisfactorily established that the respondent began to live separately from the
appellant after July 30, 1956. On July 30, 1956, she wrtoe to the appellant,
Exhibit P-2. Therein she had made it clear that she had reached the end of her
patience. That letter read along with the evidence of the respondent clearly
established that on July 30,1956, the respondent made it clear to the appellant
that she is nto prepared to live with him as his wife thereafter.

   The period preceding the coming into force of the Act cannto be taken into
consideration in dealing with the question of delay in presenting the petition
under Section 12. It is true that there was considerable delay even thereafter.
The petition for declaration of the nullity of the marriage was presented only
in 1962. The respondent's explanation for the same is that her parents who are
very conservative stood in her way from seeking relief under the Act. In
considering whether there was unnecessary or unreasonable delay in seeking the
relief, we cannto ignore the conditions of the society in which the parties
lived and traditions of the families to which they belong. The Hindu society
looked with disfavor dissolution of marriages. It was considered as something
sinful. It requires courage to face the public odium. We can take judicial
ntoice of the fact that even today considerable sections of the Hindu society
look with disfavor the idea of dissolving a marriage. Further, as seen earlier,
the respondent belongs to a highly aristocratic family.

   We can very well believe when the respondent swears that her parents are
highly conservative. They must have shuddered at the idea of their daughter
approaching the Court for declaring her marriage with the appellant a nullity.
The respondent further says that her parents told her that if her marriage with
the appellant is dissolved, the society in which they lived would shun them and
it would be difficult for them to get alliances for the daughters of her sisters
and brtoher. Therefore, she hesitated for long before approaching the Court. The
evidence of the respondent on this point has been believed by btoh the Courts
below. Her explanation for the delay in approaching the Court is believable.
They accord with the facts of life. Therefore, we are unable to hold that there
was any unnecessary or improper delay in instituting the proceeding under S. 12
of the Act. 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 hard and fast rule can be applied in deciding that question. It is worth
remembering that the Act has nto prescribed any period of limitation for
presenting an application under Section 12 of the Act. In this connection it
would be appropriate to again refer to the decision in 1948 P. 187. Reference
may also be usefully made to the decision of the Rajasthan High Court in Smt.
Leela v. Dr. Rao Anand Singh, .

   (16) For the reasons mentioned above, this appeal fails and the same is
dismissed with costs.

   (17) Appeal dismisse