Bombay High Court
Smt. Jyoti W/O Vinod Awari (Maiden ... vs Vinod Janba Ji Awari on 2 August, 2017
Bench: A.S. Chandurkar
sa371.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.371 of 2017
Smt. Jyoti wife of Vinod Awari,
[maiden name Ms. Jyoti daughter
of Bandu Thengne],
aged about 40 years,
occupation - Household,
resident of C/o Shri Bandu
Mahadeo Thengne,
Kumbharkhani, WCL Quarter
No. 23, Tq. Wani,
Distt. Yavatmal. ..... Appellant
Org. Respondent
Versus
Shri Vinod Janbaji Awari,
aged 48 years,
occupation - Agriculturist,
resident of Post - Pipri [Dhanora],
Tq. & Distt. Chandrapur. ..... Respondent
Org. Petitioner
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Mr. R. D. Bhuibhar, Adv., for the appellant.
Ms. Kirti Satpute, Adv., for respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 02nd August, 2017
ORAL JUDGMENT:
01. Admit. Heard finally on the following substantial question of
law:-
"Whether the appellate Court was justified in not
condoning the delay of eight days in filing appeal under
Section 28 of the Hindu Marriage Act?"
02. The appellant is the original respondent against whom the
present respondent has filed a petition for divorce under provisions of
Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 [for short, "the said
Act"]. The trial Court by its judgment dated 17th July, 2013 allowed
the said petition and dissolved the marriage between the parties.
Being aggrieved, the present appellant filed an appeal under
provisions of Section 28 of the said Act on 28th August, 2013. The first
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appellate Court on 12th June, 2015 refused to condone delay of eight
days in filing the proceedings. Being aggrieved, this appeal has been
filed.
03. Shri Bhuibhar, learned counsel for the appellant, submitted
that the appeal had been filed under Section 28 (1) of the said Act
within the limitation prescribed by Section 28 (4) of the said Act. It
was only out of abundant precaution that it was accompanied by
application for condonation of delay. In fact, the appeal having been
filed within a period of ninety days from the judgment of the trial
Court, same ought to have been entertained on merits.
04. Ms. Satpute, learned counsel for the respondent, fairly
stated that the appeal was filed within the limitation prescribed by
Section 28 (4) of the said Act. The application for condonation of delay
was contested on the misconception of law.
05. The judgment of the trial Court is dated 17th July, 2013. In
terms of Section 28 (4) of the said Act, the appeal was required to be
filed within a period of ninety days from said judgment. The appeal
has been filed on 28th August, 2013, which is, thus, within limitation.
It was, therefore, not necessary to file any application for having the
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delay condoned. In that view of the matter, the impugned order dated
12th June, 2015 refusing to condone the delay is liable to be set aside.
06. The substantial question of law is answered in favour of the
appellant. Order dated 12th June, 2015 in Misc. Civil Application No.
82 of 2013 is set aside. The appeal filed by the present appellant
shall be registered and entertained on its own merits and in
accordance with law.
07. Appeal is allowed in aforesaid terms.
Judge
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