xxx vs xxx

Introduction

This case involves an application for condonation of a delay of 122 days in filing an appeal under Section 28 of the Hindu Marriage Act, 1955. The appeal was preferred by the applicant, Rashmi Indouliya, challenging the ex-parte decree of divorce passed in favor of her husband, Ved Prakash Indouliya, by the District Judge of Kokrajhar. The learned counsel for the applicant, Mr. P.K. Das, and for the opposite party, Mr. S. Mitra, presented arguments before the Court.

Factual Matrix

Shri Ved Prakash Indouliya filed a petition under Section 13 of the Hindu Marriage Act, seeking a decree of dissolution of his marriage with his wife, Rashmi Indouliya. This petition was filed in the District Court of Kokrajhar. After notice was issued to Rashmi Indouliya, she failed to contest the case, resulting in an ex-parte decree of divorce being granted on 17.07.2021.

Rashmi Indouliya did not file an appeal within the statutory period prescribed for doing so. Instead, she filed the appeal after a delay of 122 days. Along with the appeal, she filed an application under Section 5 of the Limitation Act, seeking condonation of the delay.

Grounds for Condonation of Delay

Rashmi Indouliya explained that during the COVID-19 pandemic, her husband had sent her to Mathura in Uttar Pradesh. As a result, she could not come to Kokrajhar to contest the case before the trial court. Additionally, she stated that she had the responsibility of caring for her eight-year-old son and elderly parents, which caused the delay in filing the appeal.

Arguments Advanced by the Applicant (Rashmi Indouliya)

The applicant’s counsel, Mr. P.K. Das, argued that due to the pandemic and her personal and family obligations, Rashmi Indouliya was unable to pursue the case diligently. He also referred to the judgment in Tejinder Kaur v. Gurmit Singh [(1988) 2 SCC 90], wherein the Supreme Court emphasized the importance of the respondent ensuring they are aware of the status of an appeal, particularly when no appeal is filed within the prescribed limitation period. The applicant's counsel further contended that the delay should be condoned in light of the difficult circumstances under which the applicant had been placed.

Arguments Advanced by the Respondent (Ved Prakash Indouliya)

The respondent’s counsel, Mr. S. Mitra, countered that after the ex-parte decree of divorce was passed on 17.07.2021, he remarried on 26.05.2022, which was well after the statutory period for filing an appeal had elapsed. He argued that Section 15 of the Hindu Marriage Act, 1955 permits a divorced party to remarry after the appeal period has expired or when there is no appeal. In this context, the respondent's remarriage was legal, as the statutory period for filing an appeal had passed.

Mr. Mitra also cited the judgment in Krishnaveni Rai v. Pankaj Rai [(2020) 11 SCC 253], where the Supreme Court held that the bar under Section 15 of the Hindu Marriage Act only applies if an appeal has been filed within the limitation period. Therefore, in this case, since no appeal was filed within the prescribed time, the respondent's remarriage was lawful.

Court’s Findings

After hearing the submissions from both sides, the Hon’ble Court observed the following:

1)Delay in Filing Appeal: The Court noted that Rashmi Indouliya did not file the appeal within the statutory period of 90 days. Consequently, the respondent remarried on 26.05.2022, which was more than 90 days after the decree of divorce was passed.

2)Explanation for Delay: The Court found that the explanation offered for the 122-day delay in filing the appeal was unsatisfactory. While the applicant cited personal reasons, including her duties as a caregiver to her son and elderly parents, and the constraints of the COVID-19 pandemic, the Court did not consider this as a valid or compelling reason for such a lengthy delay. The applicant’s failure to contest the case in the trial court also contributed to the delay.

3)Applicability of Section 15 of the Hindu Marriage Act: The Court observed that the bar under Section 15 of the Hindu Marriage Act, which prevents remarriage following a divorce decree, only applies if an appeal is filed within the limitation period. Since no appeal was filed within the prescribed time, and there was no legal stay or interim order restraining the respondent from remarrying, the bar under Section 15 was not applicable. The Court relied on the ruling in Krishnaveni Rai v. Pankaj Rai to support this view.

4)Judicial Precedent: The Court also referred to the judgment in Tejinder Kaur v. Gurmit Singh but distinguished it from the present case. The Tejinder Kaur case dealt with the specific issue of a party being unaware of the appeal’s status, but in the present case, the Court found that the applicant had not made a convincing case for delay.

5)Final Decision: In light of the above findings, the Hon’ble Justice Parthivjyoti Saikia dismissed the application for condonation of the 122-day delay. The Court held that the delay was not satisfactorily explained and, therefore, could not be condoned. Additionally, the Court found that Section 15 of the Hindu Marriage Act did not bar the respondent’s remarriage, as no appeal was filed within the limitation period.

Conclusion

The Court dismissed the interlocutory application seeking condonation of the delay, concluding that the applicant had failed to provide a satisfactory explanation for the delay. As a result, the appeal could not be entertained, and the ex-parte decree of divorce stood confirmed.