Mary Theodore Robert vs Man Mohan
2011 Latest Caselaw 2219 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 26.4.2011

+                  R.S.A.No.73/2007

MARY THEODORE ROBERT                      ...........Appellant
                 Through:            Mr.Alok Mahajan and
                                     Mr.Pt.Rajesh Arya, Advocate.
                   Versus

MAN MOHAN                            ..........Respondent
                         Through:    None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

CM No.3855/2007 (for exemption)

Allowed subject to just exceptions.

R.S.A.No.73/2007

1. This appeal has impugned the judgment and decree dated

21.7.2006 which had endorsed the finding of the trial judge dated

27.3.2004 whereby the suit filed by the plaintiff Mary Theodore

Robert seeking a declaration to the effect that her marriage

solemnized as per Hindu rites on 08.6.1999 with the defendant

Man Mohan is null and void had been dismissed.

2. This is a second appeal. It has been admitted on 01.9.2008.

The following substantial question of law has been framed:

"Whether the finding in the impugned judgment dated 21.7.2006 dismissing the suit of the plaintiff on the ground of limitation was a perverse finding and if so its effect?"

3. The trial judge had gone into the details of the evidence

which had been led by the plaintiff; his finding was to the effect

that the plaintiff is trying to wriggle out of the marriage illegally;

she was not entitled to the declaration sought for by her; she had

an alternate remedy.

4. Thereafter the plaintiff had filed a petition under Section 12

of the Hindu Marriage Act, 1955 seeking a declaration to the

effect that her marriage be declared null and void; a marriage

between a Christian (plaintiff) and a Hindu (defendant) is a

nullity. This petition had also been dismissed on 07.5.2005; it was

held that a petition under the Hindu Marriage Act which is

admittedly seeking nullity of a marriage performed between a

Christian and a Hindu cannot be dealt with under the provisions

of the said Act. The said petition was dismissed as not

maintainable.

5. The judgment of 27.3.2004 had been assailed by way of a

first appeal. The first appellate court had returned the impugned

judgment on 21.7.2006. The impugned judgment had dismissed

the suit of the plaintiff only on the ground of limitation. The

merits of the case had not been adverted to. Plaintiff/appellant,

before the first appellate court had preferred an application under

Section 5 read with Section 14 of the Limitation Act, 1963; he had

sought condonation of delay of 432 days in preferring this first

appeal. The impugned judgment had noted that even after giving

benefit of Section 14 of the said Act, the appeal was time barred.

Qua the provisions of Section 5 of the Limitation Act the court was

of the view that sufficient cause had not been explained by the

appellant in preferring the appeal belatedly.

6. The averments made in the application under Section 5 read

with Section 14 of the limitation Act preferred before the first

appellant court have been perused; they are duly supported by

the affidavit of the appellant.

7. Learned counsel for the appellant has pointed that in the

present scenario the appellant has become remediless; she is

knocking the door of one court after another but is not getting

relief from any quarter. It is pointed out that the respondent has

since entered into a second marriage and is living with his second

wife and has even otherwise chosen not to contest the

proceedings.

8. Be that as it may, without adverting to the merits of the

case; in view of the explanation tendered by the appellant in his

application seeking condonation of delay, (para 43 of the first

appeal court) sufficient cause has been evidenced in the

averment; this is a fit case where the matter should be remanded

back to the first appeal court to decide the controversy in dispute

between the parties on its merits.

9. For the said purpose, parties are directed to appear before

Learned District & Sessions Judge (Central) on 03.5.2011 who

shall assign the case to the concerned first appellate court to

decide the same on its merits. Substantial question of law is

answered in favour of the appellant. Appeal is disposed of in the

above terms.

10. Record be returned.

INDERMEET KAUR, J.

APRIL 26, 2011 nandan