Aarti Devi vs Suraj Parkash Singh And Others

Sindhu Sharma, J

Applicant seeks condonation of 92 days' delay in filing an appeal under Section 34 of the Hindu Marriage Act against the judgment and decree dated 29.05.2015 passed by the learned Principal District Judge, Jammu vide which the petition under Section 13 of the Act filed by respondent No. 1 was allowed and the marriage of the parties was dissolved.

Ms. Kiran Thakur, learned counsel for the respondents, has opposed the application and submitted that the delay cannot be condoned in the appeal under Hindu Marriage Act as the limitation for filing the appeal is provided in the Act itself and Section 5 of the Limitation of the Act does not extend to the same.

Briefly stated the facts are that the marriage of the parties was solemnized on 29.10.2012. Since the relations between the parties were strained, therefore, respondent No. 1 filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage before the Court of learned Principal District Judge, Ramban.

According to the applicant, she could not pursue the said petition in Ramban, therefore, had filed CTA No. 35/2014, seeking transfer of the proceedings from Ramban to Jammu. It was only after CTA was decided on 15.09.2015 and was directed to forward a copy of the order to learned District Judge, Ramban, the applicant's father when approached the Court, he was informed that the petition under Section 13 of the Act stood decided on 29.05.2015. Thereafter the applicant's father approached the Advocate for obtaining certified copy of the order which was provided to her on 21.09.2015. It is submitted that as the judgment and decree dated 29.05.2015 was passed in ex-parte, as such, the applicant seeks condonation of delay of 92 days in filing the appeal which according to her is well within time.

Respondent No. 1 has filed his objections to the said application. It is submitted that relations between the parties became strained as the applicant did not wish to settle with respondent No. 1 in the matrimonial home at Senabathi. Reconciliation between the two was tried by family members, which failed, therefore, the respondent No. 1 had no option but to file a petition under Section 13 of the Hindu Marriage Act at Ramban.

Learned counsel for the respondents submits that the applicant was duly served in the petition for divorce pending at Ramban and also caused her appearance on 12.12.2014. On the said date, she submitted an application and stated that she has filed a transfer petition before this Court and would submit the order of of the proceedings. She, however, did not appear subsequently nor produced any copy of the stay order, therefore, she was set ex-parte, and the petition was decided on 29.05.2015. Since the applicant had appeared in the divorce petition and subsequently, on her non-appearance, she was set ex-parte, as such, the applicant had knowledge of the pendency of the proceedings of divorce petition at Ramban and, therefore, cannot now take a plea that she was not served. Moreover, delay in condonation application has not properly been explained by her.

Heard learned counsel for the parties.

A preliminary plea regarding maintainability of the application was raised by the respondents. Thus, the question which arises for consideration is with regard to maintainability of the application seeking condonation of delay. As limitation in terms of Hindu Marriage Act is contained in the Act itself and Section 5 whereof will not be applicable to the Court as the provisions of said Section does not extend to appeal under Hindu Marriage Act. Since there is delay of 92 days in filing the appeal, therefore, the same cannot be entertained.

Reliance is placed on a judgment of the Hon'ble Division Bench in Pushpa Devi V. Nanak Singh 1982 KLJ 278 in which the Hon'ble Division Bench has held that Section 5 does not apply to the appeals under Section 34 of the Jammu and Kashmir Hindu Marriage Act, 1980.

The Hon'ble Division Bench of this Court, while considering the question whether Section 5 of the J&K Limitation Act applies to the appeals under Section 34 of the Jammu and Kashmir Hindu Marriage Act has held in para Nos. 4 & 9 as under :

On the plain language of Sub-section (2) once it is shown that the special or local law under which the suit, application, or appeal is brought, provides for it a period of limitation different from the one provided therefor by the first Schedule, all provisions of the Limitation Act, except those contained in Sections 3, 4, 9 to 18 and Section 22 shall have no application to such suit, application or appeal proprio vigore. Even the provisions contained in Sections 4 and 9 to 18 and 22 shall have no application in so far and to the extent to which they are expressly excluded by the special or local law under which the suit application or appeal is brought With due respect to the learned Acting Chief Justice, there is no warrant for the proposition that Section 5 is independent of Section 29 and has nothing to do with reckoning of the period of limitation. Period of limitation is prescribed by the first schedule. How that period is to be reckoned in different cases under different circumstances, has been provided by various sections of the Limitation Act, including Section 5. which too has the effect of extending the same in certain given cases on proof of sufficient cause. It is therefore, idle to contend that this section has no bearing on the computation of period of limitation prescribed under the first Sch. Unless, therefore. Section 5 is specifically made applicable to any suit, appeal or application by the special or local law prescribing limitation for the same, it cannot apply to it by its own force. This view has been taken by almost all the courts in India and no court is shown to have taken a contrary view. (See Chheda Lal Jain v. Officer Commanding Station Meerut Cantonment, AIR 1941 All 207, M.K. Abu Bucker v, B. Moidu, AIR 1957 Andh Pra 473, Canara Bank Ltd., v. Warden Insurance Co. Ltd., AIR 1953 Bom 35, Rai Harendranath Chaudhari v. Sm. Daulatmani Chaudhuri, AIR 1958 Cal 539, Harbans Singh v. Karam Chand, AIR 1949 East Puni 299, A, C. Arumugham v. Manager, Jawahar Mills Ltd., AIR 1956 Mad 79, Ram Sagar v. Ram Nath, AIR 1941 Oudh 276, and Surya Mohan Thakur v. State of Bihar, AIR 1951 Pat 462.) In all these cases the court declined to condone delay on the ground that the period of limitation having been prescribed by the special law, Section 29 (2) excluded the application of Section 5, under which the delay was sought to be condoned.

Looked from any angle, therefore, Section 5 has no application to the present appeal and no exception can be taken to the view taken by one of us (Anand J.,) in 1981 Kash LJ 427 (supra).

In view of the opinion expressed by the Hon'ble Division Bench of this Court and also in the absence of any other contention, it is clear that Section 5 of the Limitation Act is not applicable to the appeals under Section 34 of the Jammu and Kashmir Hindu Marriage Act. This apart, the applicant was duly informed of the proceedings of the divorce petition, she also appeared and thereafter chose not to contest the proceedings, thus, was appropriately set ex-parte. The plea that the civil transfer application was pending due to which she did not pursue petition under Section 13 of the Hindu Marriage Act despite knowledge, cannot be accepted. Further, Transfer petition was decided on 21.09.2015, that is, nearly three months' after the judgment and decree under Section 13 of Hindu Marriage Act was passed. Applicant, however, has been unable to explain how she was precluded from contesting the case before the Court at Ramban.

In view of the aforesaid position and considering the facts of the application seeking condonation of delay in filing the appeal, there is no merit in the application, therefore, the same is dismissed.

Consequently, appeal alongwith connected application(s) is also dismissed. Registry is directed to diarize the appeal and the same be consigned to records.