* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 26.4.2011
+ R.S.A.No.73/2007
MARY THEODORE ROBERT ...........Appellant
Through: Mr.Alok Mahajan and
Mr.Pt.Rajesh Arya, Advocate.
Versus
MAN MOHAN ..........Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.3855/2007 (for exemption) Allowed subject to just exceptions.
R.S.A.No.73/2007
1. This appeal has impugned the judgment and decree dated 21.7.2006 which had endorsed the finding of the trial judge dated 27.3.2004 whereby the suit filed by the plaintiff Mary Theodore Robert seeking a declaration to the effect that her marriage RSA No.73/2007 Page 1 of 4 solemnized as per Hindu rites on 08.6.1999 with the defendant Man Mohan is null and void had been dismissed.
2. This is a second appeal. It has been admitted on 01.9.2008. The following substantial question of law has been framed:
"Whether the finding in the impugned judgment dated 21.7.2006 dismissing the suit of the plaintiff on the ground of limitation was a perverse finding and if so its effect?"
3. The trial judge had gone into the details of the evidence which had been led by the plaintiff; his finding was to the effect that the plaintiff is trying to wriggle out of the marriage illegally; she was not entitled to the declaration sought for by her; she had an alternate remedy.
4. Thereafter the plaintiff had filed a petition under Section 12 of the Hindu Marriage Act, 1955 seeking a declaration to the effect that her marriage be declared null and void; a marriage between a Christian (plaintiff) and a Hindu (defendant) is a nullity. This petition had also been dismissed on 07.5.2005; it was held that a petition under the Hindu Marriage Act which is admittedly seeking nullity of a marriage performed between a Christian and a Hindu cannot be dealt with under the provisions of the said Act. The said petition was dismissed as not maintainable.
RSA No.73/2007 Page 2 of 4
5. The judgment of 27.3.2004 had been assailed by way of a first appeal. The first appellate court had returned the impugned judgment on 21.7.2006. The impugned judgment had dismissed the suit of the plaintiff only on the ground of limitation. The merits of the case had not been adverted to. Plaintiff/appellant, before the first appellate court had preferred an application under Section 5 read with Section 14 of the Limitation Act, 1963; he had sought condonation of delay of 432 days in preferring this first appeal. The impugned judgment had noted that even after giving benefit of Section 14 of the said Act, the appeal was time barred. Qua the provisions of Section 5 of the Limitation Act the court was of the view that sufficient cause had not been explained by the appellant in preferring the appeal belatedly.
6. The averments made in the application under Section 5 read with Section 14 of the limitation Act preferred before the first appellant court have been perused; they are duly supported by the affidavit of the appellant.
7. Learned counsel for the appellant has pointed that in the present scenario the appellant has become remediless; she is knocking the door of one court after another but is not getting relief from any quarter. It is pointed out that the respondent has since entered into a second marriage and is living with his second RSA No.73/2007 Page 3 of 4 wife and has even otherwise chosen not to contest the proceedings.
8. Be that as it may, without adverting to the merits of the case; in view of the explanation tendered by the appellant in his application seeking condonation of delay, (para 43 of the first appeal court) sufficient cause has been evidenced in the averment; this is a fit case where the matter should be remanded back to the first appeal court to decide the controversy in dispute between the parties on its merits.
9. For the said purpose, parties are directed to appear before Learned District & Sessions Judge (Central) on 03.5.2011 who shall assign the case to the concerned first appellate court to decide the same on its merits. Substantial question of law is answered in favour of the appellant. Appeal is disposed of in the above terms.
10. Record be returned.
INDERMEET KAUR, J.
APRIL 26, 2011 nandan RSA No.73/2007 Page 4 of 4