Bombay High Court
Surendra Vasant Mahajan vs Varsha Surendra Mahajan on 24 January, 2024
2024:BHC-AUG:1829
1 960-SA 147-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 147 OF 2023
Surendra Vasant Mahajan .. Appellant
Versus
Varsha Surendra Mahajan .. Respondent
Mr. M. R. Wagh, Advocate for the Appellant.
Mr. P. H. Patil, Advocate for Respondent.
CORAM : R. M. JOSHI, J.
DATE : 24th JANUARY, 2024.
PER COURT :-
. This appeal is filed under Section 100 of the Code of Civil
Procedure taking exception to the judgment and order dated
07.12.2021 passed in Civil Miscellaneous Application No. 7/2021. The
First Appellate Court has refused to condone the delay of five years and
nine days caused in preferring appeal against the judgment and order
dated 27.03.2015 passed in H.M.P. No. 112/2014.
2. The appellant is husband who had filed petition under the
provisions of Section 13 (1A) (1B) of the Hindu Marriage Act for
dissolution of marriage being H.M.P. No. 112/2014. The wife appeared
in the said proceeding. The husband though filed his affidavit in
examination in chief, but thereafter he remained absent. As a result of
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this, the petition was dismissed by order dated 27.03.2015. Thereafter,
the husband filed another petition in the year 2019 seeking divorce
from the wife. The said petition was withdrawn. It is in the year 2021
the husband has filed application for condonation of delay caused in
preferring appeal by contending that since April 2012 the wife has
deserted him and before the Trial Court in H.M.P. No. 112/2014 she
requested him not to seek decree of divorce. For this reason he did not
pursue the said proceeding. He further alleges that, even thereafter she
did not resume cohabitation and according to him this is satisfactory
explanation for condonation of delay.
3. The learned counsel for the appellant - husband submits that, if
the delay is not condoned, there is huge loss to him. According to him,
as the wife has given assurance to the husband of resuming
cohabitation, therefore, he had not pursued H.M.P. No. 112/2014. So
also, he withdrew subsequent petition filed by him.
4. Perusal of the application does not show any such plea being
taken by the husband for the purpose of condonation of delay. The
only reason given is that since the wife has requested him not to obtain
decree of divorce, he did not pursue H.M.P. No. 112/2014. In order to
seek condonation of delay it was on the part of the husband must show
sufficient ground. He has to plead and prove the circumstances which
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were beyond his control resulted into causing of delay in preferring the
appeal against the judgment and order in the H.M.P. No. 112/2014.
Needless to say that he would not be permitted to take advantage of his
own fault. As rightly observed by the First Appellate Court that there is
gross delay on the part of the husband which is not satisfactorily
explained.
5. This Court therefore finds no perversity in the said finding. Since
no substantial question of law is involved in this appeal, same is
dismissed.
( R. M. JOSHI, J. )
P.S.B.
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