Saurabh Garg vs Smt. Priyanka
2022 Latest Caselaw 8656 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- FIRST APPEAL No. - 558 of 2022
 

 
Appellant :- Saurabh Garg
 
Respondent :- Smt. Priyanka
 
Counsel for Appellant :- Himanshu Srivastava,Siddhartha Srivastava
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

The present appeal is directed against the order passed on an application 8C-2 filed under Section 5 of Limitation Act whereby the appellant herein sought for recall of the judgment and order dated 03.01.2019 passed under Section 25 of Hindu Marriage Act.

It may be noted that the respondent wife had filed a divorce suit under Section 13 of Hindu Marriage Act, which was decreed exparte on 25.05.2018. Thereafter, two proceedings were initiated by the respondent wife under Sections 25 and 27 of Hindu Marriage Act, which were registered separately as Case Nos. 192 of 2015 and 193 of 2015; respectively. Both the cases were decided exparte on 03.01.2019 by a common order.

It is admitted fact of the matter that the appellant herein did not seek recall of the divorce decree and the recall had been filed only with respect to the orders passed under Section 25 and 27 of Hindu Marriage Act. In the explanation offered by the appellant before the Family Court seeking condonation of delay, it was stated that the appellant came to know about the order dated 03.01.2019 only on 25.09.2019 when he had appeared in the execution proceeding, namely Case No. 31 of 2019. The said explanation offered by the appellant was found false by the Family Court recording a categorical findings that in the proceeding under Section 31 of Domestic Violence Act, namely Misc. Case No. 219 of 2016, on the bail application moved by the appellant herein, the competent Court while granting bail on 16.01.2019 had taken note of the fact of passing of the exparte order dated 03.01.2019, in the proceeding under Sections 25 and 27 of Hindu Marriage Act, as the said fact was brought to the notice of the Court in the objection filed by the respondent wife. The result is that the appellant herein came to know about the exparte order dated 03.01.2019 on 16.01.2019 itself, as the copy of the objection was received by him and the factum of passing of the exparte decree was noted by the competent Court while granting bail to the appellant herein. No explanation could be offered by the appellant in not seeking recall of the order dated 03.01.2019 even after having been released on bail in the criminal case pursuant to the order dated 16.01.2019.

As the appellant had not come with the clean hands before the Family Court, we do not find any error in the order passed by the Family Court, in rejection of the delay condonation application filed in support of the recall application.

The appeal is dismissed being devoid of merit at the admission stage itself.

Order Date :- 1.8.2022

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