Smt. Nirmala W/O Praveen ... vs Sri. Praveen S/O Shivaputrappa ...
2023 Latest Caselaw 2821 Kant

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                                                        MFA No. 102785 of 2022




                     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 2ND DAY OF JUNE, 2023

                                             PRESENT
                               THE HON'BLE MR JUSTICE S G PANDIT
                                               AND
                          THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                   MISCELLANEOUS FIRST APPEAL NO. 102785 OF 2022 (FC)
                   BETWEEN:

                      SMT. NIRMALA W/O PRAVEEN BHOJANNAVAR
                      AGE.52 YEARS, OCC.HOUSEHOLD WORK,
                      R/O.C/O.NATARAJ MALLIKARJUN VINEKAR
                      LAXMI NAGAR, KAKATI,
                      TQ AND DIST.BELAGAVI-590001

                                                                  ...APPELLANT
                   (BY SRI. GANGADHAR S KAMBLE, ADVOCATE)
                   AND:

                      SRI. PRAVEEN S/O SHIVAPUTRAPPA BHOJANNAVAR
                      AGE.57 YEARS, OCC.BUSINEES,
                      R/O.C/O.KAHDE BAZAR BELAGAVI,
                      DIST.BELAGAVI-590003
Digitally signed
by JAGADISH T
R
                                                                ...RESPONDENT
Location:
DHARWAD            (BY SRI.PRASHANT F GOUDAR, ADVOCATE)
Date: 2023.06.08
13:18:31 -0700
                          THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURT ACT,
                   ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT PASSED
                   IN MC PETITION NO.1/2005 DATED 28.06.2007 PASSED BY THE
                   PRINCIPAL FAMILY COURT BELAGAVI AT BELAGAVI IN THE
                   INTEREST OF JUSTICE AND EQUITY

                          THIS APPEAL COMING ON FOR HEARING ON IA, THIS DAY,
                   S.G. PANDIT J., DELIVERED THE FOLLOWING:
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                                     MFA No. 102785 of 2022




                        JUDGMENT

Heard the learned counsel for appellant and learned

counsel for respondent and perused the appeal papers

including an affidavit in support of IA No.1/2023 filed under

Section 5 of the Limitation Act, praying to condone the delay

of 4653 days in preferring the appeal.

2. It is submitted that the appellant married the

respondent on 13.08.1995 as per Hindu customs and rituals.

After sometime, respondent/husband has driven out the

appellant/wife, which made the appellant to file petition

under Section 9 of the Hindu Marriage Act, 1955 (for short,

'Act, 1955') for restitution of conjugal rights. The said

petition was filed in the year 2005 before the Family Court,

Belagavi, which was numbered as MC No.1/2005. In the

said proceedings, the petitioner herself examined as PW1

and marked documents as Ex.P1 to P5, whereas respondent

examined himself as RW1 and marked documents as Ex.R1

to R17. The Family Court after hearing both the parties and

on scrutiny of the material on record, dismissed the petition

filed under Section 9 of the Act, 1955 holding that the

MFA No. 102785 of 2022

appellant has failed to prove the marriage with respondent.

Against dismissal of the petition filed under Section 9 of the

Act, 1955 for restitution of conjugal rights, present appeal is

filed under Section 19(1) of the Family Courts Act, 1984 (for

short, 'Act, 1984') before this Court on 8.6.2022.

3. There is inordinate delay of 4653 days in

preferring the present appeal.

4. Learned counsel for the appellant would submit

that the appellant has very much struggled in life and she

was not in a position to prefer appeal within time. It is

submitted that the appellant had to initiate several

proceedings against the respondent for his conduct and

behaviour towards the appellant. Learned counsel referring

to the affidavit averments in support of the application for

condonation of delay submits that the wife has already

suffered damages due to illegal acts committed by the

respondent and his family members. He further submits that

the appellant had also suffered mental and physical torture,

due to which, her health condition deteriorated. Learned

counsel also submits that the appellant was admitted to the

MFA No. 102785 of 2022

hospital as inpatient. In paragraph-6 and 7 of the affidavit,

the appellant has stated that she had filed

Crl.Misc.No.80/2009 before the IV Addl. JMFC Court,

Belagavi and Crl.Misc.No.230/2018 on the file of III JMFC

Court, Belagavi seeking relief of maintenance. It is further

stated that the appellant has also filed complaint in Crime

No.18/2022 before III JMFC Court, Belagavi for the offences

punishable under Sections 498-A, 420 read with Section 34

of IPC. Learned counsel would submit that the appellant is

not well acquainted with the Court proceedings and on

advice from the counsel at Belagavi and Dharwad, present

appeal is being presented.

5. On the contrary, learned counsel Sri.Prashant F

Goudar appearing for the respondent submits that the appeal

is filed with inordinate delay of 4653 days i.e. more than 14

years and the appellant has not made out any ground to

condone the said inordinate delay. Learned counsel would

further submit that it is not the case of the appellant that she

was not aware of the proceedings. But the proceedings

culminating in dismissal of petition filed under Section 9 of

MFA No. 102785 of 2022

the Act, 1955 was well within the knowledge of the appellant

and she subsequently initiated several criminal proceedings.

It is his submission that the petition for restitution of

conjugal rights came to be dismissed under impugned

judgment and decree dated 28.06.2007 and subsequent to

dismissal of the Section 9 petition, the appellant has initiated

four criminal proceedings. As such, he submits that there

are no bonafide reasons in the affidavit filed by the appellant

for condonation of delay. Thus, he prays for dismissal of the

appeal only on the ground of delay.

6. Having heard the learned counsel for the parties

and on perusal of the appeal papers as well as affidavit in

support of application for condonation of delay, the only

point that would fall for consideration in this appeal is,

whether the appellant has made out a case for condonation

of 4653 days delay in preferring the appeal?

7. Our answer to the above point would be in the

negative for the following reasons:

MFA No. 102785 of 2022

8. The appellant initiated proceedings under Section

9 of the Act, 1955 for restitution of conjugal rights alleging

that the respondent married her in the year June, 1995. As

the respondent had driven her out, she had filed petition for

restitution of conjugal rights. After trial, the Family Court on

appreciation of the evidence both oral and documentary has

come to the conclusion that the appellant has failed to prove

the marriage with the respondent. Further, the Family Court

has also noted that the respondent/husband has married one

Smt. Varsha.

9. Be that as it may, the present appeal is presented

before this Court on 8.6.2022 i.e. more than 14 years after

judgment passed in MC No.1/2005 on the file of Family

Court, Belagavi. We have gone through the affidavit

accompanying the application for condonation of delay. No

cause much less sufficient cause is shown to condone the

delay.

10. It is not the case of the appellant that the

appellant was not aware of the judgment passed by the

Family Court in MC No.1/2005 rejecting her petition filed

MFA No. 102785 of 2022

under Section 9 of the Act, 1955 for restitution of conjugal

rights. Averments of the affidavit clearly indicate that the

appellant was very much aware of dismissal of the petition

under Section 9 of the Act, 1955, but she was busy in

initiating other criminal proceedings against the respondent.

11. The appellant has initiated following criminal

proceedings subsequent to dismissal of MC No.1/2005 filed

for restitution of conjugal rights:

Sl. Case Nos. Provisions Status of the case No.

 1.       Crl.Misc.No.80/2009    U/S 12 of Domestic         Withdrawn on
                                    Violence Act              16.01.2010
 2.       Crl.Misc.No.230/2018   U/S 31 of Domestic      Pending (application
                                    Violence Act              for interim
                                                          maintenance came
                                                           to be dismissed.
 3.        Crl.A.No.391/2020      Appeal against the           Dismissed
                                 order of dismissal of
                                     application for
                                 interim maintenance
 4.       Crl.Misc.No.226/2021    U/S 125 of Cr.P.C.           Pending
                                   for maintenance

12. When the petitioner had time to initiate several

criminal proceedings against the respondent referred to

supra, the contention that the appellant could not prefer this

appeal in time cannot be believed.

MFA No. 102785 of 2022

13. The present appeal is filed under Section 19(1) of

the Act, 1984. Section 19(1) of the Act, 1984 provides for

filing appeal from every judgment or order, not being an

interlocutory order, of a Family Court to the High Court.

Sub-section 3 of Section 19 provides for preferring an appeal

to the High Court within a period of thirty days from the date

of judgment or order of a Family Court. No provision for

condonation of delay is provided under Section 19 of the Act,

1984. We have to fall back for consideration of delay under

Section 5 of the Limitation Act. Application under Section 5

of Limitation Act is filed praying to condone the delay of

4653 days in preferring appeal. Section 5 would permit

condonation of delay on sufficient cause.

14. The Hon'ble Apex Court in a recent judgment in

the case of Ajay Dabra Vs. Pyare Ram & others1 has

clearly held that belated appeals can only be condoned,

when sufficient reason is shown before the Court for the

delay. The appellant who seeks condonation of delay

therefore must explain the delay of each day. It is true that

AIR 2023 SC 698

MFA No. 102785 of 2022

the Courts should not be pedantic in their approach while

condoning the delay, and explanation of each day's delay

should not be taken literally, but the fact remains that there

must be a reasonable explanation for the delay.

15. In the instant case, the appellant has not shown

any cause much less sufficient cause to condone inordinate

delay of 4653 days. Affidavit in support of the application

would only state with regard to initiation of criminal

proceedings by the appellant against respondent/husband.

Nowhere in the affidavit, the appellant has explained with

regard to delay of more than 14 years in preferring the

present appeal. A person who sleeps over his/her right

cannot approach the Court at their sweet will. In the instant

case, particularly, when the appellant was aware of the order

passed by the Family Court, she could not have slept over

the matter and approach this Court more than 14 years from

the date of passing the judgment and decree in MC

No.1/2005 by the Family Court. Thus, we are of the

considered view that the appellant has not made out any

ground to condone inordinate delay of 4653 days in

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MFA No. 102785 of 2022

preferring the present appeal. Accordingly, IA No.1/2023

filed for condonation of delay is dismissed, consequently,

appeal also stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

JTR