Smt. Priyanka Gupta vs Amit Kumar Gupta
2023 Latest Caselaw 35779 ALL

Allahabad High Court

Smt. Priyanka Gupta vs Amit Kumar Gupta on 19 December, 2023

Author: Saumitra Dayal Singh

Bench: Saumitra Dayal Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:240630-DB
 
Court No. - 39
 

 
Case :- FIRST APPEAL DEFECTIVE No. - 3 of 2023
 

 
Appellant :- Smt. Priyanka Gupta
 
Respondent :- Amit Kumar Gupta
 
Counsel for Appellant :- Brij Raj
 
Counsel for Respondent :- Sunil Vashisth,Abhishek Tripathi
 

 
Hon'ble Saumitra Dayal Singh,J.
 

Hon'ble Shiv Shanker Prasad,J.

1. Heard Mr. Brij Raj, learned counsel for the appellant and Mr. Abhishek Tripathi, learned counsel for the respondent.

2. The present first appeal has been filed under Section 19 of the Family Court Act, 1984 arising from the judgment and order dated 11th January, 2019 passed in Matrimonial Petition No. 598 of 2017 (Amit Kumar Gupta Vs. Priyanka Gupta) and also the order 1st December, 2022 passed in Application No. 221 of 2021 (Priyanka Gupta Vs. Amit Kumar Gupta). By the first order, the learned court below has dissolved the marriage between the parties, at the instance of the respondent. By the second order i.e. 1st December, 2022, the learned court below has rejected the application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure (for short "CPC"), to recall the earlier order dated 11th January, 2019.

3. In such circumstances, the present appeal, insofar as it relates to the order dated 11th January, 2019, has been reported beyond time by 1350 days. Affidavits have been exchanged on the delay condonation application.

4. Having heard the learned counsel for the parties and perused the records, it is necessary to note that the appellant is a junior engineer working with the Power Corporation, whereas the respondent is a clerk working in the medical department of the Government of Uttar Pradesh. The marriage between the parties was solemnised on 13th July, 2013. There are no children born to them. The matrimonial relationship between the parties suffered hardships leading to institution of certain cases (criminal and civil). In such facts, the respondent approached this Court by means of Criminal Misc. Application No. 10930 of 2018 to quash criminal case proceedings. In that, the matter was referred to the mediation centre attached to this Court. It is not denied that interim settlement dated 16th July, 2018 was drawn between the parties before medication centre attached to this Court. It reads as below:

"This INTERIM SETTLEMENT AGREEMENT entered into on 16.07.2018, between Sri Amit Kumar Gupta (Applicant-Husband) and Smt. Priyanka Gupta (Opposite Party No. 2-Wife).

WHEREAS

1. Disputes and differences had arisen between the Parties hereto and Criminal Misc. Application No. 10930 of 2018 was filed before the Hon'ble High Court.

2. The matter was referred to mediation/conciliation vide order dated 04.04.2018 passed by Hon'ble Rajeev Misra, J.

3. The parties agreed that Mr. Rajesh Kumar Singh and Mr. Rajeshwar Singh, Advocates would act as their Conciliators/Mediators, in Mediation Case No. 1547 of 2018.

4. Joint and separate meetings were held during the process of Conciliation/Mediation on 16.07.2018 and the parties have with the assistance of the Mediator/Conciliator voluntarily arrived at an amicable solution resolving the above-mentioned disputes and differences.

5. The parties hereto confirm and declare that they have voluntarily and of their own free will arrived at this Settlement Agreement in the presence of the Mediator/Conciliator.

6. The following settlement has been arrived at between the Parties hereto:-

a) That the marriage of Sri Amit Kumar Gupta (Applican -Husband) and Smt. Priyanka Gupta (Opposite party No.2-Wife) was solemnized on 13.07.2013. After some time of the marriage, the relation between the parties became strained and hence they have been living separately since 25.06.2015. No issues were born out of the aforesaid wedlock.

b) That Sri Amit Kumar Gupta (Applicant-Husband) and Smt. Priyanka Gupta (Opposite party No.2-Wife) have decided to take mutual divorce and Smt. Priyanka Gupta (Opposite party No.2-Wife) has refused to take any alimony from Sri Amit Kumar Gupta (Applicant-Husband).

c) That it has been agreed between the parties that they will file a mutual divorce petition under section 13-B of Hindu Marriage Act before the Family Court, Chandauli on 25.07.2018 and they will bring the certified copy of mutual divorce petition on the next date fixed i.e., 06.08. 2018 fixed before the Mediation Centre.

d) That it has also been agreed between the parties that all the cases, either civil or criminal, shall be kept in abeyance for this intervening period.

Put up on 06.08.2018 at 3:30 P.M.

DATE: 16.07.2018"

5. However, no joint petition came to be filed and no final settlement was drawn. The above criminal case proceedings are still pending.

6. In such facts, the respondent instituted the divorce case proceedings before the learned court below. The same were allowed ex parte vide judgment and order dated 11th January, 2019. More than two years thereafter, the present respondent is disclosed to have re-married on 15th July, 2021. Nearly two months thereafter, the appellant filed an application under Order IX Rule 13 of the Civil Procedure Code seeking recall of the ex parte decree dated 11th January, 2019, that has been rejected by the learned court below vide order dated 1st December, 2022.

7. Section 15 of Hindu Marriage Act, 1955 (hereinafter referred to as the "Act) reads as below:

"15. Divorced persons when may marry again. When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again."

8. Section 28 (4) of the Act provides for limitation of 90 days to file an appeal. That limitation expired in April. 2019. More than two years thereafter, respondent is shown to have re-married. There is no infringement of the law made by the respondent in having, thus, re-married more than two years after dissolution of his first marriage.

9. The right to appeal that otherwise existed with the appellant is, thus, seen to have eclipsed by passage of time.

10. At this stage, it is also not disputed to the appellant that she had entered into interim settlement before the mediation centre attached to this Court, on 16th July, 2018. Therein, she had clearly agreed to dissolve the marriage between the parties, though under Section 13-B of the Act. No reason or fact has been shown to exist, as may lead to any doubt as to the consent given by the appellant before the mediation centre. Even if the proceedings of mediation are to be ignored, and no settlement is seen to have been reached, at the same time, for the purpose of testing the bona fides of the appellant, the above noted and still undisputed contents of the interim settlement may remain relevant. They do indicate that there is no sufficient cause for the extraordinary delay of more that 2 years, inasmuch as the recall application was filed for collateral purposes and not for any just ground or reason.

11. Then, to further test bona fide of the appellant, we put a specific query to the learned counsel for the appellant, if the appellant was ready and willing to revive her matrimonial relationship with the respondent. The answer has been wholly evasive and not in the affirmative, to any extent. There is also no denial to the contents of private communication made between the parties through social media, copy of which is annexed as Annexure-C.A.-2 to the counter affidavit filed by the respondent.

12. Purely to protect the privacy of the parties and not to show any of the parties in poor light, we are not extracting the contents of that communication. At the same time, those contents being not denied, we find, recall application has been filed for collateral purposes only and not to revive the matrimonial relationship between the parties.

13. Therefore, the further submission being advanced by the learned counsel for the appellant that no publication had been made at the relevant time and that the inference of deemed service was wrongly drawn by the learned court below, has been rendered an academic issue. For the foregoing reason, the extraordinary delay in filing of the appeal is not condoned as the cause shown is anything but sufficient.

14. Since the appellant is a government servant, we do not want to make any further observation as may prejudice her service record as well. While we proposed to impose costs, Mr. Abhishek Tripathi, learned counsel for the respondent states that no such order may be passed.

15. For the reasons recorded above, the delay condonation application is rejected and consequently, the instant appeal proceeding is dismissed as barred by limitation.

16. There shall be no order as to costs.

(Shiv Shanker Prasad, J.) (Saumitra Dayal Singh, J.)

Order Date :- 19.12.2023

Sushil/-