FAO No.M-117 of 2011 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.M-117 of 2011 (O&M) Date of Decision. 19.04.2011 Mohinder Singh aged about 60 son of late Jathedar Gurdial Singh of village and PO Powat, Tehsil Samrala, Distt. Ludhiana (Pb.) (formerly employee of General Manager, Haryana Roadways-Industrial Area, Chandigarh. ......Appellant Versus Charan Kaur daughter of Shri Dalbara Singh, resident of Guru Nanak Mohalla, Bassi Pathana, District Fatehgarh Sahib (Punjab.) .....Respondent Present: Mr. G.S. Mann, Advocate for the appellant. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The appeal is against the dismissal of the petition for divorce on the ground that the wife was guilty of desertion for a period of three decades. The Court had observed that the petitioner had earlier filed petitions for divorce and later had them dismissed as withdrawn. The Court had found that the petitioner had not explained the cause for withdrawal earlier and how he was competent to file a petition afresh. 2. The provisions of Order 23 Rule 1 CPC, prescribes a method of withdrawal of the petition if a fresh petition were to be filed and would require that the party obtains the permission of Court at the time of withdrawal to file the same cause of action for institution of a fresh FAO No.M-117 of 2011 (O&M) -2- petition. Such a course was not done. The withdrawal of petition would amount to the petition abandoning the action and consequently barring the petition afresh. Even otherwise assuming for the sake of arguments, the petitioner had to make out a case for grant of relief, Section 23 of the Hindu Marriage Act requires that the husband is not taking advantage of his own wrong or has not caused unnecessary and improper delay in instituting the petition. It is his own statement that the respondent has been guilty of desertion for three decades and he had earlier filed petitions for divorce and later, had them dismissed as withdrawn. The delay in approaching the Court after three decades of separation is not explained and Section 23 mandates that the Court shall consider the issue of whether the petitioner is entitled to a decree and whether the case is maintainable or not. It is another way of saying that it is the duty of the Court to apply its mind to ensure that even if a spouse makes out a ground for divorce, by any of his conduct, he/she does not disentitle himself/herserlf from securing the relief. In this case there has been inordinate delay in approaching the Court for securing the relief. I do not find any scope for interference in appeal. 3. The order passed by the trial Court is confirmed and the appeal is dismissed. (K. KANNAN) JUDGE April 19, 2011 Pankaj*