Puthalath Chathu vs Nambukkudi Jayasree and Another

Thomas, J.—Has the wife condoned her husband''s matrimonial delinquency? If the answer is in the affirmative, her petition for a decree of divorce u/s 13(1) of the Hindu Marriage Act, 1955 (for short ''the Act'') is liable to be dismissed. The court below answered the question in the negative and granted the decree prayed for by her. Hence this appeal by the husband.

There is no dispute that the marriage between the appellant and 1st respondent was solemnised on 4-3-1968 and that no issues were born in the wedlock. First respondent alleged that her husband married another lady (2nd respondent) later and begetted three children through that lady. Further allegation is that on all occasions when she questioned him about the said relationship, the husband snorted out and scoffed at her, on many such occasions he thrashed her down. Though the appellant denied the allegation that he married 2nd respondent, he had the temerity to admit, perhaps since he could not help it, that he had promiscuous sexual liaise with her as a result of which three children were born to her. But his effort was to show that the aforesaid illicit indulgence was with the express consent of his wife right from the beginning. Hence he contends that there was no reason for him to assault his wife as his wife had never spoken against his liaison with second respondent.

Learned Sub Judge who passed the decree found that the allegation of cruelty is true and that there was no consent from her side for the immoral sexual connection which the appellant maintained with second respondent. Lower court also found that the matarimonial delinquencies perpetrated by the husband were not condoned by the wife at any time.

Learned counsel contended that the admission of the wife that she knew about the illicit relationship and also the birth of three children for the second respondent is enough to establish condonation of husband''s conduct by the wife. Section 23(1)(b) of the Act confers power to the court to dismiss the petition if the court is satisfied that the petitioner has in any manner been accessory to or connived at or condoned the act or acts complained of when they relate to cruelly or adultery. Section 23(1) casts an obligation on the court to consider the question of condonation in all cases where relief is sought on the ground of other spouse''s cruelty or adultery. Learned counsel invited our attention to the decision of the Supreme Court in Chandra Mohini v. Avinash-Prasad, AIR 1967 SC 581in which subsequent cohabitation with the spouse even after knowledge of adultery and long delay in filing the petition were used as circumstances to base a finding that there was condonation of matrimonial offence. Petition in the said case was filed by a husband against his wife alleging that she has had voluntary sexual intercourse with another person after solemnisation of the marriage. The evidence in the said case was that husband knew about his wife''s adultery in June, 1958 and he continued to cohabitate with his wife upto October, 1958. His explanation was that his friends advised him not to break off the marital tie despite detection of his wife''s infidelity. On those facts, the Supreme Court found that there was clear indication of condonation.

Condonation of matrimonial transgression involves condition of such trans-gression as is known to or believed by the offended spouse, so as to reslpre the stalute quo ante as between the spouse. To constitute condonation there must be two things : Forgiveness arid restoration. The real import of condonation is conditional waiver of the right of the injured spouse to take out proceedings. The condition is revival of the normal married life. There cannot be condo-nation if the offending spouse continues to indulge in the matrimonial offence. Foregiveness is meaningless unless there is condition in the person who seeks or pleads for foregiveness. Condonation rests on some assurance to the offended spouse of retracement of the offending spouse from the wrong path hitherto followed.Viscount S.V. Simon L.C. described condonation thus in Henderson v. Henderson 1944 AC 49 : "Condonation involves forgiveness confirmed or made effective by reinstatement". One of the authors pointed out that condonation only obfuscates the matrimonial transgression, it does not obliterate it. There would be no condonation if the guilty spouse did not wish to be forgiven. In Dr. N.G. Dastane Vs. Mrs. S. Dastane, Chandrachud, J. (as he then was) has stated that legal position regarding condonation envisaged in Section 23(1)(b) of the Act. Learned Judge observed : "Condonation u/s 23(1)(b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed."

In this case, the appellant has no contention that the matrimonial life with his wife was restored at any time after getting himself rid of the tentacles of the second respondent. On the contrary, even now he continues unabashedly his illicit liaison with her. As such, question of condonation does not arise.

Learned counsel for the appellant further contended that the petition for divorce ought to have been dismissed on account of long delay in instituting proceedings. The power given to the court to dismiss the petition on the ground of delay does not merely depend upon the length of such delay. Section 23(1)(b) envisage satisfaction that "there has not been any unnecessary or improper delay in instituting the proceedings". Those words are sufficient to indicate that mere length of delay is not enough to non-suit a petitioner who alleges matrimonial guilt against the other spouse. There must be satisfactory evidence for the court to be convinced that the delay, however, long it may be was either unnecessary or improper. Here the wife has given evidence that ever-since she knew about her husband''s illicit connection with 2nd repondent, she was importuning with him to desist therefrom. She had been hoping against hopes all these years but when she found that the situation has reached a stage of no return, she made recourse to the remedy provided by law. It is admitted that she is a physically disabled lady and she can walk only with infirm gait. Learned Sub Judge who had occasion to see her has described her built as "frail and fragile." She has no children. In such circumstances, learned Sub Judge was justified in accepting her version that she was trying to mend her husband of his ways, so that a happy connubial life could be restored despite all the errings committed by him. We do not think that the first respondent has deliberately delayed resorting to legal remedy.