Ansoyaben D/O Muljibhai ... vs Maheshbhai Chimanbhai Rohit
2021 Latest Caselaw 5537 Guj

        C/CA/468/2020                               ORDER DATED: 07/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CIVIL APPLICATION NO. 468 of 2020

              In F/FIRST APPEAL NO. 41638 of 2019
==========================================================
  ANSOYABEN D/O MULJIBHAI DEVJIBHAI ROHIT W/O MAHESHBHAI
                       CHIMANBHAI ROHIT
                            Versus
                MAHESHBHAI CHIMANBHAI ROHIT
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS. ALKA B VANIYA(6945) for the Applicant(s) No. 1
VASIMRAJA A KURESHI(8609) for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                    Date : 07/06/2021
                       ORAL ORDER

(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)

1. Heard Ms. Alka Vaniya, the learned counsel appearing for the appellant - wife. Ms. Alka Vaniya, the learned counsel has been appointed by the High Court Legal Services Committee.

2. This Civil Application is at the instance of the wife seeking condonation of delay of 2029 days caused in instituting the First Appeal against the judgment and decree dated 19.04.2014 passed by the learned Additional Family Judge, Vadodara in the Family Suit No.60 of 2012.

3. We take notice of the fact that the wife preferred an application under Section­9 of the Hindu Marriage Act seeking restitution of conjugal rights before the learned Family Court and by order dated

C/CA/468/2020 ORDER DATED: 07/06/2021

19.04.2014, a decree was passed in favor of the wife granting restitution of conjugal right under Section­9 of the Hindu Marriage Act. We fail to understand as to why the wife has instituted the present appeal when the family Court has allowed the application under Section­9 of the Hindu Marriage Act in favour of the wife. To a specific query in this regard, Ms. Alka Vaniya, the learned counsel submitted that as the husband is not complying with the decree passed by the Court below, the first appeal has been preferred with the delay of 2029 days.

4. We find no merit either in the delay condonation application nor in the First Appeal. First, we are not convinced with the sufficient cause assigned by the applicant for such a long and inordinate delay and secondly, in our opinion, the first appeal itself is not maintainable. As the wife has succeeded in obtaining a decree for restitution of conjugal rights, the first appeal could not have been preferred to enforce the decree against the husband.

5. In view of the above, the Civil Application seeking condonation of delay is hereby rejected. As a result, the First Appeal also stands dismissed.

The disposal of the appeal shall not come in the way of the appellant - wife in filing any other legal remedy against the husband.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) A. B. VAGHELA