LAW AND SOCIETY: 8/19/12

Doctrine of Laches-Delay &Matrimonial cases:

The law of limitation applies to civil proceeding,if civil proceeding are not initiated within the specified time period,the remedy becomes time barred and litigant may lose his remedy.

Most people ask whether Doctrine of laches /delay applies to matrimonial cases,when matrimonial cases are civil proceeding, but ,the Limitation Act prescribes no period of limitation for filing a petition for divorce,litigant can also seek remedy by explaining the reasons for the delay in filing the case to the court basing on sound legal principles.The courts are very liberal in condoning the delay as there is no prescribed statutory limitation period for matrimonial cases.

The Hindu Marriage Act ,1955:

Section 23(1) (d) of Hindu Marriage Act, 1955 says"there has not been any unnecessary or improper delay in instituting the proceeding....."

Dr. H. S. Gour book "Hindu Law of Marriage and Divorce".

"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 not prescribed any period of limitation for presenting an application under Section 12 of the Act." as stated in

Principles of Hindu Law' by D. F. Mulla :

"The principle and the basis of the rule is that delay is a material factor because if unexplained it may lead to the inference that there was collusion between the parties, or acquiescence in the injury or indifference to the same or some wrong motive for seeking relief after slumbering over the matter in sufficient comfort for an inordinate period after the ground for relief had arisen. Whether the delay in instituting proceeding is unnecessary or improper would depend on the facts and circumstances of each case. A petitioner may not readily he charged with improper or unnecessary delay where any element of the nature indicated above is shown to have existed.

At the same time, the Court will not permit itself to be used as a place to which a party to a marriage can come for redress whenever it suits him or her to do so, having in the meantime held the weapon of redress over the head of the other party to the marriage. Delay in such a case would be highly improper."

In English law case in Key v. Key and Staples Case, 1956-3 All E R 955. "the Judge excused a delay of ten years in instituting divorce proceedings and accepted the explanation of the husband that he tried his best for some years to find out where the wife had gone and then he tried to save up enough money to start proceedings"

In Becker v. Becker, (1966) 1 WLR 423, a delay of fifteen years after desertion in the institution of the proceedings was not considered as a bar.

Clifford v. Clifford, (1948) p 187, the marriage was declared a nullity even after 27 years the marriage,in this petition was filed for nullifying the marriage on the ground of impotency.

Smt. Leela vs Dr. Rao Anand Singh And Anr. on 29 January, 1963, AIR 1963 Raj 178: It was held that delay can be condoned on the principles :

Delay resulting from ignorance of law;
The petitioner's want of means and property;
Unwillingness to involve members of the petitioner's family in family difficulties;
Fear of scandal and desire to avoid a final break-up, if possible;
Reasonable hope of reconciliation; and,
Patience and forbearance on the part of a spouse and particularly the wife and considerations of welfare and position and interest of children of the marriage.

Lakshmi Ammal vs Alagiriswami Chettiar AIR 1975 Mad 211, (1975) 1 MLJ 228:In this case , the first wife to sue for divorce on the ground that her husband had married again before the coming into operation of that enactment.The first wife had continued to live with the husband for ten years after his second marriage and had children born of him after the second marriage and her petition for divorce was allowed though it was resisted by the husband on the ground of condonation and on the ground that it would be inequitable under the circumstances to grant a decree for divorce.

"The language of the section did not permit of delay being pleaded in bar of the relief. Under the present sub-section it would be competent to the court and even necessary and incumbent on it to consider in any case whether there was any unnecessary or improper delay in instituting the proceedings as laid down in Section 23(1)(d) of the Hindu Marriage Act."

Balvindar Kaur v. Avtar Singh (1985) 2 D.M.C. 26: held that "mere delay or long lapse of time in launching of the proceedings by itself is not a bar to the grant of decree under Hindu Marriage Act if it is explained properly"

Gopibai v. Hukumchand 1977 M.P. W.N. 480: it was held that "under Section 23(1) of the Act the Court should satisfy before proceeding to grant any relief under the Act that there has not been unnecessary or improper delay in instituting the case"

Pavunambal vs Ramaswamy And Anr. 1979) 2 MLJ 273:"It seems to me therefore that what had got hold of the Courts below in this case was their obsession over the mere length or passage of time of 17 years, 11 years and the like. But I have said enough already to show that the statute does not demand this approach, and the Courts below were quite wrong in thinking they were under some duty bound to dismiss a petition once they had held that there was an improper or excessive delay in its institution."

According to this finding, "it is clear that the petitioner married Anakarudu as his second wife, while the first Wife Arumbu was alive. As such, this marriage is null and void under Section 11 of the Hindu Marriage Act." If so much is granted, it certainly provokes one to ask why the Courts below should at all have felt compelled to dismiss the wife's petition on the ground of delay? My answer is that they had no call to do so."
The decree for nullity of her marriage upheld ,despite 17 yrs delay in filing of proceedings for nullifying a marriage.

The cases remanded for unexplained delay :

In Manchar Bapuji v. Chandrawati, AIR 1936 Nag 26 the, Nagpur High Court held that a delay of seven years in presenting a petition for divorce is, prima facie, unreasonable and raises a presumption of connivance or condonation and the burden is on the petitioner to explain the delay before he can be granted the decree he seeks. The case was remanded for further enquiry.

In Ammanna v. Ammanna, AIR 1949 Mad 7 it was observed by the Madras High Court that the petitioner should have given evidence to explain the delay of 12 years intervening from the time when the wife left home until he presented his petition for dissolution of his marriage. The case was remanded.

Other cases :

M. Akkamma vs M. Jagannadham AIR 1981 AP 269:"There has been unnecessary and improper delay of nearly 10 years in the institution of the proceedings by the husband on the ground of Adultery ,A.P High Court upholded the decree and and dismiss the appeal.

Jyotsnaben Ratilal vs Pravinchandra Tulsidas,AIR 2003 Guj 222, (2003) 2 GLR 1395 b " I am of the view that there is no unnecessary or improper delay in filing the application under Section 12(1)(a) of the Act though he came to know about incapacity of the wife he has waited for some time because he was of the view that after sometime due to medical science she may be able to conceive the child and therefore the petitioner husband has waited for some time i.e. up to 1994" ...It is no doubt that the wife has deceived the respondent-husband by suppressing her physical defect.

Gurmit Kaur vs Buta Singh 2009[P-H High Court]10.11.2009,In this case, It was also pleaded case that provisions of Limitation Act, 1963 were not applicable to the petition and immediately on coming to know about fraud played on him he sought decree of declaration that the marriage was null and void.The petition was liable to be dismissed on account of delay and laches. on the ground that "guilty party cannot take advantage of his own wrong"

Hence,it is pertinent to note that even though there is no prescribed limitation for matrimonial proceeding,it is discretion of the court to condone[adhering to principles stated in Smt. Leela case] or not to condone the delay ,depending upon facts and circumstances of the case.

It is evident that the courts in India are very liberal in condoning the delay in matrimonial cases.

References :