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CRA/130/2004 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 130 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ASHWINKUMAR
LAXMISHANKER PANCHOLI - Petitioner(s)
Versus
JAYASHREEBEN
ASHWINBHAI PANCHOLI ALIAS JAYABEN - Respondent(s)
=========================================================
Appearance
:
MR
MRUGEN K PUROHIT for
Petitioner(s) : 1,
MR MP PRAJAPATI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/09/2010
ORAL JUDGMENT
1. By
way of filing the present application, the petitioner has challenged
the order dated 9.1.2004 passed by the Joint District Judge, Rajkot
in Misc. Civil Application No.37 of 2002. The said Misc. Civil
Application was filed for condonation of delay in preferring the
appeal against the judgment and order passed by the learned Extra
Assistant Judge, Rajkot in H.M.P. No.31 of 1983 dated 29.6.1983.
Brief facts of the case are as under :-
2. The
case of the petitioner is that he was married with the respondent
according to Hindu rites and their caste custom on 2.2.1975 at
Village Derdi Kumbhaji. After the marriage, they resided as husband
and wife from February 1975 to June 1976 at Rajkot. Thereafter, they
resided at Bombay from July 1976 to May 1977 and thereafter, they
resided again at Rajkot from June 1977 to July 1977. It is averred by
him that on 24.7.1977, the respondent without the knowledge and
consent of the petitioner and without any reasonable excuse left the
house and went to stay with her father. Since then, the petitioner
made several attempts from 1981 to bring back the respondent to stay
with him but she refused to come and stay with him under one pretext
or the other. Therefore, the respondent has left the matrimonial
home. The learned Extra Assistant Judge, Rajkot vide order dated
29.6.1983 allowed H.M.P. No.31 of 1983 holding the marriage dissolved
on the ground of desertion under Section 13(1)(1-b) of the Hindu
Marriage Act. Being aggrieved by the aforesaid order dated 29.6.1983,
the respondent preferred Regular Civil Misc. Appeal No.2 of 2004
before the District Judge, Rajkot praying to quash and set aside the
order dated 29.6.1983 passed by the Extra Assistant Judge, Rajkot.
After more than delay of 15 years, the respondent preferred appeal
along with the delay condonation application i.e. Civil Misc.
Application No.37 of 2002 on 10.6.2002 before the Joint District
Judge, Rajkot and the learned Judge has allowed the said application
vide order dated 9.1.2004. Hence this Revision Application.
3. It
is submitted by Mr Mrugen K Purohit, learned advocate for the
petitioner that H.M.P. No.31 of 1983 was filed by the petitioner for
decree of divorce on 30.3.1983. As the respondent was not present,
the learned Judge decided to proceed ex-parte on 13.6.1983. After
recording the evidence, the Trial Court has passed the decree of
divorce on 29.6.1983. It is submitted by learned advocate Mr. Purohit
that during this period, the present petitioner married with Maltiben
Prabhudas Trivedi on 9.12.1985 and out of the said wedlock, the
petitioner has three daughters. At present all the three daughters
are major. Without considering this aspect, the District Court has
allowed the application though no sufficient cause was made out for
condoning the delay.
4. Heard
the learned advocates for the parties at length. In this case
peculiar facts are there. It is submitted that after passing the
decree of divorce, the present petitioner married with another lady
and during the said wedlock, the petitioner has three daughters who
at present are major and they are residing together. It is also an
admitted fact that decree of divorce was passed on 29.6.1983 and the
present respondent has preferred the appeal along with the delay
condonation application on 10.06.2002 i.e. after about 19 years. This
Court has gone through the delay condonation application preferred by
the present respondent. No sufficient cause for condoning the delay
of 19 years is made out. Only it is mentioned in the application that
she was not aware about the decree of divorce passed by the learned
Trial Court and therefore, she could not file appeal against the said
judgment and order. Except this contention, no other reasons have
been found from the application which led this Court to condone the
delay. Even assuming that this is sufficient, then also as discussed
above, if we allow this application then also multiple problems will
be arose as the present petitioner is settled in his life with his
wife along with three major daughters. The Appellate Court without
considering the above aspect condoned the delay and thereby committed
an error. In view of the above, this Revision Application is allowed.
The order passed by the Joint District Judge, Rajkot in Misc. Civil
Application NO.37 of 2002 is hereby quashed and set aside. No order
as to costs.
5. As
far as the maintenance part is concerned, a remedy is available to
the respondent wife to file an appropriate application before the
appropriate Court for enhancing the maintenance. Rule is made
absolute to the aforesaid extent.
[M.D.SHAH,
J.]
mrpandya
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