Allahabad High Court
Smt Meeta Bhittoria vs Dr Devendra Kumar Bhittoria on 14 May, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:86590-DB
Court No. - 29
Case :- FIRST APPEAL DEFECTIVE No. - 231 of 2024
Appellant :- Smt Meeta Bhittoria
Respondent :- Dr Devendra Kumar Bhittoria
Counsel for Appellant :- Rajendra Prasad Tiwari,Vinay Kumar Tiwari,Vineet Tiwari
Hon'ble Vivek Kumar Birla,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
Re: Civil Misc. Delay Condonation Application No.01 of 2024
1. Heard Shri Rajendra Prasad Tiwari, learned counsel for the appellant.
2. Present appeal has been preferred against the judgment and decree dated 05.04.2019 passed by Principal Judge, Family Court, Jhansi in Divorce Petition No.747/2018, under Section 13 of the Hindu Marriage Act whereby divorce petition filed by the husband has been allowed ex parte.
3. The appeal has been reported beyond time by 1765 days. Such huge delay has been explained in paragraphs no. 3, 4, 5, 6, 7 and 8 of the affidavit filed in support of the delay condonation application, which are quoted as under:-
"3. That the ex-parte divorce petition passed by Principal Judge Family Court Jhansi, appellant was not aware about the judgment & decree dated 05.04.19.
4. That the Crl. Misc. Application U/s 482 Cr.P.C. No. 46018/2023 by the Hon'ble High Court order dated 18.12.23 matter sent to mediation center and notices issued to the appellant same was returned back unserved with the report that she is not residing in this address.
5. That first date was in mediation center 25.02.24 on that date appellant/opp. party was present in the mediation center but applicant/opp. party was not present but his counsel called by the mediator then he appeared so next date fixed 10.03.24, that on 10.03.24 appellant and opp. party both were present before the mediator in the mediation center, on that date photo copy of the petition taken from to the counsel of opp. party then after seeing the petition this face came in the knowledge that the divorce petition no.747/2018 filed by opp. party same was ex-parte decree vide judgment and decree dated 05.04.19.
6. That the opp. party then applied for certified copy of the judgment and decree of the divorce petition dated 05.04.19 through pholio on 11.03.24 same was prepared on 16.03.24 and obtained on 29.03.24.
7. That the appellant then consulted to her counsel about the aforesaid judgment and decree which has been passed ex-parte without serving any notice upon her in which no any permanent alimony awarded then it has been advised to file appeal against the ex-parte judgment and decree passed by Principal Judge Family Court Jhansi before Hon'ble High Court.
8. That thereafter aforesaid appeal prepared along with delay condonation application same is filing before this Hon'ble Court there is delay in filing the aforesaid appeal is 04 years 09 months 28 days."
4. It has been submitted that the divorce petition filed by the husband under section 13 of the Hindu Marriage Act, was allowed ex parte vide judgment and decree dated 05.04.2019. It is further submitted that notices on the divorce petition were never served on the appellant and the appellant came to know about the ex parte decree only when she appeared in the mediation proceedings before the mediation centre of this Court. It is stated that on 25.02.2024 the appellant was present before the mediation centre but the opposite party was not present on that date. It is further stated that only on that date she came to about the filing of the divorce petition No.747 of 2018, which was allowed ex parte vide judgment and decree dated 05.04.2019.
5. Attention was drawn to paragraph 16 of the affidavit filed in support of the stay application which is quoted as under:
"16. That in the divorce petition address of appellant mentioned house no.105 Talpura, City Jhansi, P.S. Nawabad, Jhansi, notice issued against the appellant/opposite party same was returned without service with the report she is not residing in this address it is evident to mention to here that the appellant is presently residing in Poona Maharashtra inspite of this with malice intention opp. party not mentioned the proper address with the purpose to get ex-parte divorce decree."
6. It is submitted that the appellant is not residing at the address given i.e. house no.105 Talpura, City Jhansi, P.S. Nawabad, Jhansi, and that the appellant is presently residing in Pune, Maharashtra, therefore, she had no knowledge about the filing of the divorce petition, under such circumstances, such huge delay in filing the appeal is liable to be condoned.
7. We find that while filing the present appeal the appellant has given the address of Jhansi, which is quoted as under:
"Smt. Meeta Bhittoria, W/o Dr. Devendra Kumar Bhittoria, D/o of Sri Prem Chandra Arya, R/o House No.105, Talpura, P.S.Nawabad, District, Jhansi."
8. The name & address of the appellant mentioned in the affidavit filed in support of the delay condonation application reads as under:
"Affidavit of Meeta Bhittoria, aged about 51 years, W/o Devendra Bhittoria, R/o 250 Hevat Market Talpura, Jhansi, Jhansi Khas, Jhansi, Utttar Pradesh-284002."
9. The Aadhar Card indicating the same address has been annexed alongwith the affidavit filed in support of the delay condonation application, which is quoted as under:-
"Address:
W/o Devendra Bhittoria, 250 Hevat Market, Talpura, Jhansi, Jhansi Khas, Jhansi, Utttar pradesh-284002."
10. We find that in the affidavit filed in support of the delay condonation application, in the array of parties as well as in the Aadhar Card the address of Jhansi has been mentioned. The address of Pune, Maharashtra has not been disclosed anywhere, therefore, it is not known at to how the appellant had came to know about the matter having being referred to the mediation center whereas the learned counsel for the appellant submitted that in the application under Section 482 Cr.P.C. as well the same address has been given and it was served on the same address. Subsequently, his stand was changed and it was submitted that in the mediation proceedings the appellant came to know about the filing of divorce petition.
11. In this background, we find that the appellant has now come forward to challenge the ex parte order whereas admittedly the other proceedings are also pending. It is further reflected that one divorce petition No.649 of 2013 filed under Section 13 of the Hindu Marriage Act was withdrawn on 07.08.2014 as the compromise had taken place between the parties as indicated from Annexure-3 to the affidavit filed in support of the appeal. It appears that subsequently, husband filed fresh divorce petition no.209 of 2015 which again was got dismissed as withdrawn on 17.08.2016. Thereafter, the husband has filed present divorce petition no.747 of 2018, which was allowed ex parte in the year 2019.
12. It appears that the appellant has not come forward with clean hands. The address of Jhansi is stated to be the correct address of the appellant. She had filed proceedings under section 125 Cr.P.C. at Jhansi. In the year 2022 she filed an application under section 128 Cr.P.C. again showing as resident of Jhansi but without given her full current address and only this much is written "??? ?????? ???? ?????????" (at present resident of Pune, Maharashtra) (at page 58). She even failed to appear in mediation proceedings before this Court as noted in the order dated 25.09.2023 passed in Criminal Revision No.2563 of 2018 (at page 41).
13. Although in the affidavit as noted above, she claims that she was present in the mediation proceedings on few dates, it is nowhere reflected as to how she came to know about the mediation proceedings, if she is not having any knowledge of any proceedings and her current address is not disclosed anywhere. The Court below before proceedings ex parte found service of summons sufficient on her. Further, the case of the husband is that matter was compromised in Supreme Court Mediation Centre but was not honoured by the wife (appellant herein) and that she is living separately since 08.04.2013.
14. In this background it is clear that the appellant on one hand is deliberately not disclosing her full, correct current address and on the other hand is appearing in different proceedings as per her convenience.
15. In such view of the matter, we do not find any good ground to condone huge delay in filing the appeal.
16. Delay condonation application stands rejected.
Appeal
1. Since the delay condonation application is rejected by the order of this date, consequently, appeal also stands dismissed.
Order Date :- 14.5.2024
Nitendra
