Gauhati High Court: An Interlocutory Application filed under Section 5 of the Limitation Act, seeking a condonation for delay in filing a matrimonial appeal under Section 28 of the Hindu Marriage Act, 1955 (HMA), was rejected by Parthivjyoti Saikia, J. for not providing a sufficient cause for the said delay.
Background
Respondent-husband had filed for an application for dissolution of marriage with applicant-wife under Section 13 of the Hindu Marriage Act, 1955. The Trial Court issued a notice to the applicant, but the applicant did not contest the case. Subsequently, the Trial Court passed an ex-parte decree dissolving the marriage.
After the delay of 122 days, applicant approached the High Court, stating that her husband had sent her to Mathura, Uttar Pradesh, during the Covid-19 pandemic, due to which she could not come to contest the case before Trial Court in Kokrajhar. The applicant also stated that she had to look after her 8-year-old son and old parents which led to the delay.
Since applicant did not challenge the divorce decree within the stipulated time, respondent got remarried.
Contentions
The applicant placed reliance on the decision of the Supreme Court rendered in Tejinder Kaur v. Gurmit Singh, (1988) 2 SCC 90, in which the court stated that even though it was lawful for the husband to have remarried after the decree was passed, since no right to appeal lied against, still it was for husband to make sure that whether an application for a special leave had been filed.
The respondent, on contrary, relied upon the judgement delivered in Krishnaveni Rai v. Pankaj Rai, (2020) 11 SCC 253, wherein the Supreme Court held that, the bar, as given in Section 15, HMA is only applicable if the appeal is filed within the stipulated time frame and not after condonation of delay in filing the appeal.
Analysis and Decision
After examining the provision as given under Section 15, HMA, which allows for remarriage after the decree for dissolution of marriage has been passed if the time frame for filing an appeal has lapsed, the Court held that restriction to remarry in the aforesaid section was not applicable to the present case.
The Court further stated that the petitioner had also failed to provide sufficient grounds for the delay caused in filing of the matrimonial appeal. Thus, the Court rejected the plea for condonation of delay and dismissed the instant application.
[Rashmi Indoulya v. Ved Prakash Indoulya, 2024 SCC OnLine Gau 752, decided on 12-06-2024]
Advocates who appeared in this case :
For the Petitioner: P.K. Das
For the Respondent: S. Mitra
