This High Court dismissed an appeal against an exparte divorce decree and refused to condone a 125-day delay. The court held the delay was not substantiated and the impugned decree was based on cogent evidence.
The application for condonation of delay and the appeal were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CM No.12504-CII of 2013 in/and FAO No.M-181 of 2013
102
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CM No.12504-CII of 2013 in/and FAO No.M-181 of 2013 Date of Decision: 15.7.2013
Ram Krishan
...... Applicant/Appellant
VERSUS
Geeta Rani
…...Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE S.P. BANGARH
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Present: Mr. Balwinder Singh, Advocate for Mr. Deepak Agnihotri, Advocate, for the applicant/appellant.
S.S. SARON, J.
Heard learned counsel for the appellant.
The appeal has been filed by the appellant-Ram Krishan against the judgment and decree dated 17.10.2012, passed by the learned District Judge, Kapurthala, whereby, the petition under Section 13 of the Hindu Marriage Act, 1955 ('Act' for short) filed by the respondent-Geeta Rani has been allowed exparte. Along with the appeal, CM No.12504-CII of 2013 has been filed seeking condonation of 125 days delay in filing the appeal.
The respondent-Geeta Rani filed a petition under Section 13 of the Act seeking dissolution of the marriage between the parties. It was submitted by her that she was married with the
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appellant on 02.11.1997 at village Palahi, Tehsil Phagwara, District Kapurthala as per Sikh religious rites and ceremonies. After marriage, the parties resided and cohabited together as husband and wife at village Hadiabad, Tehsil Phagwara, District Kapurthala. They had a daughter namely Radha, who was born in January, 2001 and was in the care and custody of the respondentGeeta Rani. After marriage, the behaviour of the appellant and his family members for some time remained good. Thereafter, it is alleged that they started maltreating her and used to beat her on one pretext or the other. They asked her to bring more dowry. The appellant, it is alleged, used to harass the respondent. The father of the respondent was doing labour work in Dubai and had already given sufficient dowry in the marriage. When he came from Dubai, the appellant asked the respondent to bring 50,000/- from him. Her father, however, gave 21,000/- to the appellant. Despite that, the attitude of the appellant did not change. The respondent was made to work like a servant. She bore all this with the hope that one day better sense would prevail upon the appellant and his family members. About six months after the marriage, the appellant again raised a demand of ` 50,000/-. He openly declared that in case, the respondent did not bring the amount from her mother, she would have no place in the matrimonial home. When the respondent showed her inability to fulfill the demand of the respondent, she was turned out from her matrimonial home after she had been inflicted with a severe beating. She was also threatened by the appellant that if their demands were not fulfilled, she would be killed. Then with
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the intervention of the respectables, the respondent was rehabilitated in her matrimonial home. However, behaviour of the appellant did not change. He alleged that the respondent was not of his liking and she had no place in his life. He made the life of respondent a hell. She was physically and mentally tortured. She was not allowed to take proper food. The appellant and his mother always insulted the respondent on one pretext or the other. The respondent was told that she was the daughter of beggars. She was insulted in the presence of guests only with the motive to mentally harass her. On the birth of the daughter, the appellant was agitated as to why she had given birth to a female. After 2-3 days of the birth of the child, the appellant left the respondent at her parents' house. Even at that time, the appellant complained that the parents of the respondent by convening a Panchayat for her rehabilitation in her matrimonial home, could not succeed. The appellant filed an injunction suit against the respondent and also a case under Section 9 of the Act, which had since been dismissed. It is submitted that the appellant had deserted the respondent for continuous period of more than two years immediately preceding the presentation of the petition, without any reasonable cause and had treated her with mental as well as physical cruelty.
Notice of the petition was issued to the appellant. He initially appeared through his counsel on 09.3.2010. The case was adjourned for reconciliation proceedings but the appellant did not appear for reconciliation proceedings. He was proceeded against exparte vide order dated 06.4.2010. The appellant then filed an
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application on 04.5.2010 for setting aside the exparte proceedings. The said application was accepted on the same day and the case was adjourned for filing reply to the application under Section 24 of the Act and also for reply to another application. Reconciliation proceedings were conducted but these remained unsuccessful. Thereafter, the appellant again on 25.5.2010 did not appear and was absent from the Court. He was proceeded against exparte and the case was adjourned to 01.6.2010 for exparte proceedings against the appellant. On the said date i.e. 01.6.2010, the appellant filed an application for setting aside the exparte proceedings. The case was adjourned to 05.6.2010 for reply. On the said date i.e. 05.6.2010, the reply to the application was filed and the application for setting aside the exparte proceedings was dismissed. The appellant then against the said order filed a revision petition in this Court, which was also dismissed. The case was then adjourned to 08.2.2011 for exparte evidence of the respondent. On the said date, the appellant filed an application before the Court of District Judge, Kapurthala that he wants to file an application for transfer of his case from the said Court to some other Court. The case was transferred from the Court of District Judge, Kapurthala to that of Additional District Judge, Kapurthala. The appellant, however, did not appear before the Transferee Court on the date fixed. The case was then adjourned for exparte evidence of respondent several times. The appellant through his attorney on 19.4.2011, filed another application in the case, which remained pending till 06.12.2011. The appellant then requested the Transferee Court
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that he wants to move an application for transfer of the case from the said Court to some other Court. The case was adjourned for the said purpose for 20.12.2011. On the said date, the attorney of the appellant apprised the Court that he had already filed an application before this Court for transfer of the case. The Court of Additional District Judge-I, Kapurthala sent the case to the Court of District Judge, Kapurthala for transfer of the case. On the reference made by the learned Additional District Judge-I, Kapurthala, the case was transferred to the Court of learned Additional District Judge-II, Kapurthala vide order dated 22.12.2011. Thereafter, on 24.1.2012, the attorney of the appellant raised allegations against the said Transferee Court. The case was then sent to the Court of District Judge, Kapurthala for transfer, which was accepted and the file of the case was retained by the learned District Judge, Kapurthala. On 14.2.2012, an application was filed by the appellant for permission to join the proceedings in this case was dismissed. Then another application dated 12.6.2012 was filed by the appellant to join the proceedings. The same was also dismissed vide order dated 17.10.2012.
The respondent in her exparte evidence examined herself as PW-1. Besides her mother Smt. Palo (PW-2) and Jatinderpal Singh (PW-3) were examined and her exparte evidence was closed. The respondent-Geeta Rani in her deposition as PW-1, tendered in evidence her sworn affidavit (Ex.PA), in which, she reiterated the allegations of her being meted out ill-treatment and her being given a beating on the pretext that she had brought
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less dowry. Besides, she was also pressurized to bring 50,000/from her parents. Her father gave 21,000/- to the appellant, despite that, his attitude did not change. The appellant raised another demand of 50,000/- from the respondent and openly declared that if his demand was not fulfilled, then, the respondent would be killed. When the respondent showed her inability to meet the ingenuine demand of the appellant, she was given a severe beating and was ultimately turned out of her matrimonial home. Thereafter, with the intervention of the respectables, the matter was compromised and she was taken to her matrimonial home. Despite that, the behaviour of the appellant towards the respondent did not change. She was physically and mentally tortured to fulfill the illegal demand of 50,000/-. On the birth of the female child in January, 2001, it is alleged that the appellant got agitated for bearing a girl. The appellant, two-three days after the birth of the child, left the respondent at her parents' house. Since then, the appellant had not cared for her or for the child. He openly declared that he had no place for respondent in his house or in his heart. Again a Panchayat was convened by the parents of the respondent for her rehabilitation in her matrimonial home, but the efforts remained unsuccessful. From the said circumstances, it was submitted that it stood established that the appellant had deserted the respondent for a continuous period of more than two years immediately preceding the presentation of the petition, without any reasonable cause and also treated her with mental and physical cruelty.
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Smt. Palo (PW-2) mother of the respondent tendered in evidence her affidavit (Ex.PB) as part of her statement. Jatinderpal Singh (PW-3) was known to the parties. He submitted his affidavit (Ex. AW-3) as part of his statement. Smt. Palo (PW-2) and Jatinderpal Singh (PW-3) in their respective affidavits corroborated the version and evidence of the respondent.
The learned District Judge, Kapurthala from the above exparte evidence led by the respondent, which remained unrebutted and unchallenged held that it had clearly been established on record that the appellant had deserted the respondent for a continuous period of more than two years immediately preceding the presentation of the petition, without any reasonable cause and he had treated her with mental as well as physical cruelty. It was also noticed that the appellant had not contested the case of the respondent for the reasons best known to him. He, no doubt, initially appeared through his counsel but, thereafter, since 09.3.2010 onwards, the case was being delayed by the appellant for the reasons as detailed in the order.
In view of the aforesaid facts and circumstances, the petition of the respondent was allowed and an exparte decree of divorce was passed in favour of the respondent and against the appellant. Accordingly, the marriage between the parties was dissolved by a decree of divorce on the grounds of desertion as well as cruelty.
Alongwith the appeal that has been filed, civil miscellaneous application has been filed seeking condonation of 125 days delay in filing the appeal. It is submitted that the applicant/appellant misplaced the certified copy of the judgment and decree dated
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17.10.2012 somewhere in his house. When he searched for the same, he could not find it, then he applied for another certified copy of the judgment and decree dated 17.10.2012. Therefore, the delay has occurred in filing the appeal due to mistake of the clerk of the counsel. It is submitted that in case, the delay is not condoned, the applicant/appellant would suffer an irreparable loss. The application is supported by an affidavit of the applicant/appellant.
Learned counsel for the appellant has submitted that in fact, the respondent had remarried even before the passing of the judgment and decree dated 17.10.2012. It is submitted that an application was filed by the respondent for taking on record a written compromise between the respondent-Geeta Rani and Mohan Lal, her second husband, however, the said application has not been accepted. Besides, it is submitted that the appellant is paying maintenance amount to the respondent. It is also submitted that delay in filing the appeal is unintentional as the earlier certified copy of the judgment and decree dated 17.10.2012 got misplaced.
We have given our thoughtful consideration to the matter. It is not in dispute that the petition of the respondent under Section 13 of the Act has been allowed exparte. The appellant had initially appeared before the learned trial Court on 09.3.2010. Thereafter, he was proceeded against exparte vide order dated 06.4.2010. Then, he appeared on 04.5.2010 and filed an application for setting aside the exparte proceedings, which was accepted on the same day and the case was adjourned for filing
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reply to the application under Section 24 of the Act and for reply to another application. Efforts for reconciliation were made but they remained unsuccessful. Then again on 25.5.2010, the appellant was absent from the Court and he was proceeded against exparte. The case was adjourned for exparte proceedings to 01.6.2010. On 01.6.2010, the appellant filed an application for setting aside exparte proceedings and the case was adjourned to 05.6.2010 for reply to the application. On the said date, reply was filed and the application for setting aside the exparte proceedings was dismissed. A Revision Petition filed by the appellant before this Court was also dismissed. Thereafter, the appellant filed various applications for transfer of the case to whichever Court it was assigned. He had been getting adjournments on one pretext or the other. He also filed an application on 14.2.2012 to join the proceedings, which was dismissed. Then an application dated 12.6.2012 was filed seeking permission to join the proceedings, which was also dismissed on 17.10.2012. It may be noticed that none of the interim orders by which the applications of the appellant were dismissed, have been urged as any error, defect or irregularity or set up as a ground in the memorandum of appeal as affecting the decision of the case. This was liable to be so set up in terms of Section 105 read with Order 43 Rule 1A of the Code of Civil Procedure ('C.P.C.' for short). Therefore, the interim orders passed against the appellant declining his application to join the proceedings having not been set up by him as a ground in the memorandum of appeal as affecting the decision of the case, the same are liable to
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be accepted by him. The said interim orders in fact have not even been placed on record by him.
The appeal itself is barred by 125 days and it is stated that the applicant/appellant misplaced the certified copy of the judgment and decree dated 17.10.2012 somewhere in his house and despite searching for it, he could not find it. Thereafter, he applied for another certified copy of the judgment and decree dated 17.10.2012. No particulars by way of application number and date of applying the certified copy of the judgment and decree dated 17.10.2012, which is stated to have been misplaced has been mentioned. Besides, it is submitted that delay in filing the appeal has occurred due to mistake of clerk of the counsel. The application seeking condonation of delay is supported by an affidavit of the appellant. In case, the certified copy of the judgment and decree had been misplaced by the appellant in his house, we fail to understand as to how it could be a mistake of the clerk of the counsel. Therefore, the application seeking condonation of 125 days delay in filing the appeal is based on vague averments, which are not substantiated from the record.
As regards the judgment and decree that has been passed against the appellant, the same is based on the evidence led by the respondent. The same has been found cogent and convincing. The appellant instead of defending his case, filed applications for transfer of his case to whichever Court the case was assigned. The contentions now raised regarding the other marriage of the respondent are not substantiated from the record. He has not led evidence in support of his case. He has not assailed the orders
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statedly passed in refusing to let him join the proceedings. The judgment and decree that has been passed against the appellant is based on cogent and convincing reasons.
In the facts and circumstances, we find no error in the impugned judgment and decree dated 17.10.2012 Besides, no ground to condone the delay of 125 days in filing the appeal is made out.
Accordingly, the application seeking condonation of 125 days delay in filing the appeal and also the appeal are dismissed.
(S. P. Bangarh ) Judge
15.07.2013 G. Bhardwaj
3 issues framed by the court
Whether the delay of 125 days in filing the appeal should be condoned.
Whether the exparte decree passed against the appellant was erroneous.
Whether the grounds taken in the appeal regarding respondent's remarriage were substantiated.
2 provisions across 2 enactments
Ram Krishan
Geeta Rani
S. S. Saron
S. P. Bangarh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
