Bombay High Court

Sou.Sunita Masaji Waghmare vs Shri.Masaji Bhimrao Waghmare on 1 February, 2023

Bench: Madhav J. Jamdar

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       Digitally
       signed by
                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
       SONALI
SONALI MILIND                           CIVIL APPELLATE JURISDICTION
MILIND PATIL
PATIL Date:
       2023.02.02
       17:15:05
       +0530
                                        SECOND APPEAL NO.833 OF 2017


                    Sou. Sunita Masaji Waghmare                           ...Appellant
                        Versus
                    Shri. Masaji Bhimrao Waghmare                         ...Respondent


                    Mr. Ajit M. Savagave, for the Appellant.

                    Mr. Umesh Kurand, for the Respondent.


                                               CORAM : MADHAV J. JAMDAR, J.

DATED : 1st FEBRUARY 2023

P.C. :

1. Heard Mr. Savagave, learned counsel appearing for the

Appellant and Mr. Umesh Kurand, learned counsel appearing

for the Respondent.

2. Mr. Savagave, learned counsel appearing for the

Appellant submits that the following substantial questions of

law are involved in this Second Appeal:-

i. Whether the order dated 3 rd April 2017 passed by the learned District Judge-1, Barshi below Exhibit-1 in Civil Miscellaneous Application No.49 of 2016 is proper and legal?

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ii. Whether sufficient reasons given in Civil Miscellaneous Application No.49 of 2016 for condonation of delay in filing the Appeal challenging the Judgment and Decree dated 24th August 2012 in Hindu Marriage Petition No.66 of 2011 are ignored by the learned District Judge-1, Barshi in passing the impugned order dated 3rd April 2017 passed below Exhibit-1 in Civil Miscellaneous Application No.49 of 2016?

3. It is the contention of Mr. Savagave, learned counsel

appearing for the Appellant that sufficient reasons are given in

Civil Miscellaneous Application No.49 of 2016. However, the

same are completely ignored by the learned First Appellate

Court and therefore, the impugned order is totally perverse.

4. Mr. Savagave also pointed out that the Respondent has

filed Hindu Marriage Petition No.149 of 2013 seeking divorce

inter alia on the ground that the Judgment and Decree of

restitution of conjugal rights passed by the learned Civil Judge,

Senior Division, Barshi in Hindu Marriage Petition No.66 of

2011 has not been complied with by the Appellant-wife. He

submitted that learned Civil Judge, Senior Division, Barshi,

decreed the said petition on 1st December 2015. He further

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pointed out that the said Judgment and Decree has been set

aside in Regular Civil Appeal No.5 of 2016 by the learned Extra

Joint District Judge, Barshi by the Judgment and Decree dated

11th December 2018.

5. On the other hand, it is the submission of Mr. Umesh

Kurund, learned counsel appearing for the Respondent that the

Appellant failed to assign sufficient reasons for condonation of

delay and therefore, the application was rightly rejected. The

learned counsel appearing for the Respondent supported the

impugned order dated 3rd April 2017.

6. Before considering the substantial questions of law raised

by the learned counsel appearing for the Appellant, following

undisputed facts are required to be noted:-

i. The marriage between the Appellant and the

Respondent took place on 7th February 1988 and

five daughters were born out of said wedlock.

ii. The Respondent-husband filed petition for

restitution of conjugal rights bearing Hindu

Marriage Petition No.66 of 2011 under Section 9 of

the Hindu Marriage Act, 1955 and the same was

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decreed on 24th August 2012.

iii. Thereafter husband filed petition for divorce

under Section 13(1)(ia) and 13(1)(ib) of the Hindu

Marriage Act, 1955 bearing Hindu Marriage

Petition No.149 of 2013. The said Hindu Marriage

Petition No.149 of 2013 was decreed by the

Judgment and Decree dated 1st December 2015. The

said decree has been challenged by the present

Appellant by filing Regular Civil Appeal No.5 of 2016

before the learned Extra Joint District Judge,

Barshi, Dist. Solapur and the said divorce decree

has been set aside by the Judgment and Decree

dated 11th December 2018. However, the

maintenance amount was reduced from Rs.8,000/-

to Rs.4,000/- per month from 1st December 2015.

7. Perusal of the contentions raised by the Appellant in Civil

Miscellaneous Application No.49 of 2016, by which application

was filed seeking condonation of delay of 3 years and 11

months in filing the Appeal challenging the Judgment and

Decree dated 24th August 2012 passed in Hindu Marriage

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Petition No.66 of 2011 passed under Section 9 of the Hindu

Marriage Act, inter alia, the following reasons are given:-

i. It is the contention of the Appellant that in

compliance with Judgment and Decree dated 24th

August 2012, the Appellant went for cohabitation on

12th September 2012, however, she was thrown out

of the house on 9th March 2013.

ii. The Respondent has not paid the amount of

maintenance and arrears are of more than

Rs.1,50,000/- and therefore, execution for recovery

of the said amount is pending. As the Appellant is

facing financial constraints, there is delay in filing

the Appeal.

iii. The Appellant is suffering from health issues.

iv. Daughter Sarika is suffering from health

issues.

v. After the Hindu Marriage Petition No.66 of

2011 was decreed on 24th August 2012, marriage of

elder daughter Subhdra was fixed and the same was

performed on 9th February 2013. It is mentioned

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that as the Respondent refused to advance any

amount for the purpose of said marriage, private

loan was taken.

vi. Thereafter, marriage of another daughter

Sushila was also fixed and the same was performed

on 27th May 2013 and for that purpose loan was

taken from the relatives and others.

vii. On 4th May 2014, daughter Sushila gave birth

to Ashwini and thereafter again daughter Sushila

delivered on 28th October 2015.

viii. It is the contention of the Appellant that as

the Respondent-husband refused to pay any amount

to the Appellant, she was required to spend money

for the said marriages and the deliveries of the

daughter and therefore, time was required for filing

the Appeal.

8. Perusal of the impugned order dated 3 rd April 2017 passed

by the learned District Judge-1, Barshi shows that the detailed

reasons given by the Appellant are completely ignored. The

reasons given by the learned First Appellate Court for rejecting

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the delay condonation application of the Appellant are set out

hereinbelow:-

"The appeal against the judgment and decree of divorce is pending before this Court. Now, the applicant wants to get condoned the delay in filing the appeal against the judgment and decree in petition for restitution. There is no doubt that there is reason to condone the delay as the applicant could not file any appeal against the judgment and decree in petition for restitution i.e. HMP No.66/2011. Now, the applicant wants to get set aside the said judgment and decree passed against her for restitution by condoning the delay. There is no sufficient ground to condone the delay. The right is accrued in favour of respondent and the application is liable to be rejected."

9. Perusal of the reasons given by the learned First

Appellate Court clearly shows that sufficient reasons given by

the Appellant are not at all taken into consideration by the

learned District Judge-1, Barshi. Therefore, impugned order

rejecting Civil Miscellaneous Application No.49 of 2016 is

totally perverse. The reasons given by the Appellant in Civil

Miscellaneous Application No.49 of 2016 clearly show that

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there are very valid and sufficient reasons for condonation of

delay. Therefore, the impugned order dated 3 rd April 2017

passed by the learned District Judge-1, Barshi below Exhibit-1

in Civil Miscellaneous Application No.49 of 2016 is required to