Krishan Lal vs Manju
2015 Latest Caselaw 1913 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                                   Mat Appeal No.56/2012

                                            Decided on : 4th March, 2015

KRISHAN LAL                                            ...... Appellant
                         Through:     Mr. O.N. Sharma, Advocate.

                           Versus

MANJU                                                   ...... Respondent
                         Through:     Mr. Mohd. Ali, proxy counsel.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

C.M. No.13762/2012

1. This is an appeal filed by the appellant against the judgment dated

24.02.2005 by virtue of which the petition of the respondent for divorce

on the ground of mental cruelty and desertion was allowed ex parte.

Along with the appeal, CM No.13762/2012 has been filed under Order 41

Rule 3A read with Section 5 of the Limitation Act, 1963 seeking

condonation of delay of 2594 days.

2. I have heard the learned counsel for the appellant and gone through

the record.

3. Briefly stated the admitted facts of the case are that the present

appellant is purported to have got married to the respondent according to

Hindu rights and ceremonies on 11.04.1992 at Delhi. It is also not

disputed that both the appellant as well as the respondent were having this

as a second marriage. The appellant alleged that on 28.04.1993, he was

thrown out from the house of the respondent which resulted in his filing a

petition under Section 9 of the Hindu Marriage Act, 1955 bearing

No.292/1993. The respondent in order to counter the said petition, filed a

petition for divorce on 12.08.2000 under Section 13 of the Hindu

Marriage Act, 1955 which was given No.536/2000. The petition under

Section 9 of the Hindu Marriage Act, 1955 is stated to have been

dismissed as withdrawn by the appellant on 11.10.2001. Further the

respondent's petition for divorce under Section 13 of the HMA Act

(536/2000) was also dismissed by the learned ADJ on merits after trial on

01.06.2002.

4. On 11.03.2003, the appellant filed a second petition under Section

9 of the Hindu Marriage Act, 1955 which was dismissed in default. The

respondent chose to file a second petition for divorce on the ground of

cruelty and desertion which was given number 402/2003 under Section

13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.

5. It is alleged that the appellant filed a suit bearing No.166/2003

before the Civil Judge, Delhi and also filed a criminal complaint for

various offences committed by the respondent at Gohana, Haryana. On

24.02.2005, an ex parte decree of divorce against the present appellant

was passed by the learned ADJ in HMA No.402/2003 without the

appellant being served. It has been alleged by him that he also filed a

third petition under Section 9 of the Hindu Marriage Act, 1955 being

HMA No.474/2007 which also came to be dismissed on 21.08.2008 on

the ground that a decree of divorce has already been passed against the

appellant and, therefore, the said petition is not maintainable. It is alleged

by the appellant that on 09.07.2008, the appellant learnt about for the first

time that a decree of divorce on the ground of cruelty and desertion has

been passed against him by the learned ADJ. As a consequence of which,

he filed an application under Order 9 Rule 13 CPC for setting aside the ex

parte decree of divorce granted against him which was also dismissed by

the learned ADJ on 22.10.2009 on the ground that the appellant was not

able to show sufficient cause for setting aside the ex parte decree of

divorce. The appellant filed an appeal against the said order being FAO

No.376/2009 which was also dismissed vide order dated 30.03.2012. As

a consequence of which, the appellant filed the present appeal against the

ex parte divorce deed dated 24.02.2005 in HMA No.402/2003 along with

an application for condonation of delay of 2594 days in filing the instant

appeal.

6. So far as the condonation of delay in filing the appeal against the

ex parte decree is concerned, that is without any merit on account of the

fact that not only the application seeking condonation of delay has been

rejected by the learned ADJ, but also by the learned single Judge of the

High Court in FAO No.376/2009 where the court has observed that there

is no illegality or infirmity in the order of the trial court which may call

for interference. The reason for this finding returned by the learned

single Judge is that it has taken note of the fact that not only there were

three addresses furnished by the respondent in the divorce petition and

the appellant had been served by registered post at one of the addresses,

but also, he was served at the address which was furnished by him at

Gohana, Haryana. It was also taken note of by the learned Judge of the

High Court that the address at Gohana, Harayana, which was furnished as

one of the addresses by the respondent, is the same address which has

been disclosed by the appellant in the criminal complaint filed by him at

Gohana, Haryana.

7. In addition to this, the court has taken note of the fact that the

appellant was also served through substituted service by way of

publication in Dainik Tribune, Hindi Edition which has a wide circulation

in Tehsil Gohana, Haryana.

8. All these facts made the court to draw an irresistible conclusion

that the appellant was duly served and he is not able to show any

sufficient cause for his non appearance which prevented him from

contesting the divorce petition. Accordingly, the present application

seeking condonation of delay of 2594 days in filing the instant appeal

also deserves to be dismissed as the finding with respect to the appellant

having not been able to show sufficient cause has attained finality and the

same cannot be reopened in the present proceedings.

9. If that be so, then the delay of 2594 days stands as not condoned

and consequently, the resultant effect would be that the appeal of the

appellant against the ex parte decree of divorce granted by the court

becomes non entertainable.

10. Even if this aspect of the matter is kept aside and the merit of the

ex parte decree of divorce is seen, then a reading of the sequence of

events as well as the controverted testimony of the respondent clearly

shows that the learned trial court has rightly passed a decree of divorce in

favour of the respondent on the ground of mental cruelty and desertion.

This is reflected from the uncontroverted testimony of the respondent

herself who has appeared in the witness box and her testimony has been

corroborated by the testimony of two other witnesses which she has

chosen to produce clearly states that both the parties had this as a second

marriage. The respondent was employed and she had from her own

funds, been able to create an immovable asset by purchasing an LIG flat,

the appellant was pestering the respondent right from the first day of

marriage to transfer the said LIG flat in his name and wanted the

respondent to credit her entire salary to his account so as to squeeze

money from her. He had not only cajoled, persuaded, but threatened her

to the extent of blackmailing her that in case she does not do this, then

cases would be registered against her and her family members which

threat, as a matter of fact, the appellant executed by filing a criminal

complaint against the respondent and her brother at Gohana, Haryana

which was also dismissed.

11. All these aspects have been held to be constituting mental cruelty

on the part of the appellant on the basis of which the court has passed an

ex parte decree of divorce against the present appellant. So far as the

second ground is concerned, it has been stated by the said ex parte

judgment that the respondent was deserted by the appellant in the year

1993 till 2005 when the divorce was granted and the appellant never took

any steps to resume cohabitation with the respondent and only repeatedly

filed petitions under Section 9 of the Hindu Marriage Act, 1955 to give a

semblance as if he was very keen to give matrimonial company to the

respondent. These petitions have either been withdrawn or dismissed by

the court which fortifies that at the time when the decree of divorce on the

ground of desertion was passed, the respondent had been living in

desertion for more than a decade after having been abandoned by the

appellant.

12. A perusal of the analysis of evidence done by the learned trial court

clearly shows that there was ample evidence before the trial court to

warrant passing of the decree on the ground of mental cruelty as well as

desertion as ha s been done by it and, therefore, I find no infirmity in the

ex parte decree of divorce passed by the court which may warrant

interference by this court.

13. For the reasons mentioned above, I find that the present appeal

filed by the appellant is without any merit. The appellant has not been

able to show any sufficient cause for his non appearance despite the fact

that he was served. Even if this aspect is ignored, he has not been able to

show even on merits as to how the decree of divorce suffers from any

illegality, infirmity or irregularity.

14. The present appeal is accordingly dismissed.

V.K. SHALI, J.

MARCH 04, 2015 dm