Karnataka High Court
Smt. Dhakshyani vs Sri. K V Vivekananda on 1 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 3019 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3019 OF 2019 (MC)
BETWEEN:
SMT. DHAKSHYANI
W/O K V VIVEKANANDA
AGED ABOUT 41 YEARS,
R/AT KOTEHAL VILLAGE,
RANEBENNUR TALUK
HAVERI DISTRICT.
...APPELLANT
(BY SMT RAJESWARI B R., ADVOCATE)
AND:
Digitally signed
by BANGALORE
MADHAVACHAR
VEENA
Location: High
SRI. K V VIVEKANANDA
Court of
Karnataka S/O K V VEERABHADRAPPA
AGED ABOUT 52 YEARS,
R/AT SONDEKOLA VILLAGE,
KASABA HOBLI,
CHITHRADURGA TALUK.
...RESPONDENT
(BY SRI. S V SHASTRI, ADVOCATE)
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MFA No. 3019 of 2019
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 28(1)
OF HINDU MARRIAGE ACT, PRAYING TO CALL FOR RECORDS
AND SET ASIDE THE JUDGMENT DATED.06/12/2005, PASSED
IN MC NO.44/2003, ON THE FILE OF THE SENIOR CIVIL JUDGE,
CHITRADURGA IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ORDERS THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING, THIS DAY, DR. H.B.PRABHAKARA SASTRY,
J., MADE THE FOLLOWING:
ORDER
Learned counsel from both side are physically
present.
2. Heard the both side on I.A.No.1/2019 which is
filed under Section 5 of Limitation Act seeking condonation
of delay of 4778 days in filing the appeal.
3. Learned counsel from both side reiterate the
contents of the I.A. No.1/2019 and the statement of
objections respectively, even in their argument also.
4. Perused the memorandum of appeal, annexures
to it, impugned judgment and I.A. under consideration,
along with its objections.
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5. The only point that arise for our consideration
is:
"Whether the appellant/applicant has
shown sufficient cause for condonation of
delay of 4778 days in filing this appeal?"
6. The appellant in the present appeal has
challenged the judgment and decree of dissolution of
marriage (divorce) ordered by Civil Judge (Sr.Dn.),
Chitradurga (hereinafter for brevity referred to as the 'trial
Court') in M.C.No.44/2003 dated 06.12.2005.
7. The present respondent was the petitioner in
the said M.C.No.44/2003. The present appellant was the
sole respondent in the said petition. Under the impugned
judgment, which is dated 06.12.2005, the marriage, said
to have been solemnized between the parties on
12.11.1997, came to be dissolved by a decree of divorce.
The petitioner before it could able to prove the ground
under Section 13(1)(ia) of Hindu Marriage Act, 1955.
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Aggrieved by the same, the wife in the trial Court has
preferred the present appeal.
8. In the affidavit, accompanying the application,
the deponent/applicant has stated that, it is recently, she
came to know about the case, as the respondent marked
the decree of divorce in Crl.Misc.No.60/2015. She has
stated that she had executed the Vakalath to one
advocate, whom, she met for the first time in the Court
premises. Thereafter, she lost his contact number as well
as the track of the case. It is only after enquiry, she came
to know that the respondent had obtained a decree of
divorce against her. Immediately, by making subsequent
enquiries about the case, she came to know about the
impugned judgment of divorce and thereafter, applying for
the certified copies, she has preferred the present appeal.
9. The respondent who has filed his detailed
statement of objections to the said application has
vehemently denied the cause shown for the delay caused
in filing the appeal. He has contended that the present
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appellant (wife) herself has filed the Crl.Misc.No.60/2015
under Section 125 of Code of Criminal Procedure, 1973
(hereinafter for brevity referred to as the 'Cr.P.C') in the
Court of Principal Civil Judge and I Additional Judge, JMFC
at Ranebennur. However, the said petition came to be
dismissed for want of territorial jurisdiction on 07.01.2020.
He has further contended that the order issued in the said
judgment, dated 07.01.2020, shows that the present
appellant was physically present in the said proceedings
and was aware of the decree of divorce passed against
her, as long back as in the year 2015. The other
allegations made by the appellant in her affidavit has also
been specifically denied by the respondent in his
statement of objections.
10. Firstly, a perusal of the impugned judgment,
under this appeal, would go to show that the present
appellant, who was the sole respondent in
M.C.No.44/2003, appeared in the said matter through her
counsel, however, did not contest the matter thereafter.
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Thus, at the very first instance, the present appellant, as a
sole respondent in M.C.No.44/2003, was aware of the
institution of a petition for divorce against her by her
husband and she even engaged services of a counsel. As
such, it is not the case that she was ignorant of the
institution of the proceedings by her husband for
dissolution of their marriage.
11. Secondly, when the present appellant, as a
respondent in M.C.No.44/2003, could able to engage the
services of a counsel, it is expected of she knowing about
the case and the advocate. Her statement, made in the
affidavit accompanying the application that she met the
said advocate for the first time in the Court premises and
thereafter she lost his contact number, is highly
unbelievable and appears to be thought of only to find a
cause to explain enormous delay of more than 13 years
that has been caused in preferring this appeal.
12. Thirdly, even according to the present appellant
and as the records would speak, she had engaged the
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services of a counsel in M.C.No.44/2003 which is of the
year 2003. Assuming for a moment that she had lost the
address of the advocate, nothing had prevented her from
going once again to the very same Court, where, she met
the said advocate and make enquiry about the advocate or
about the case. Probably she did not do it for atleast a
decade. In the very same affidavit under consideration,
she has stated that on enquiry, she came to know that the
respondent has obtained a decree of divorce against her.
Immediately, she made enquiries about the case. Which
means, she had the knowledge of making enquiry and
capable of making enquiry, still, she did not do the same
to know the status or the stage of the case in
M.C.No.44/2003 at the relevant point of time.
What enquiry she did for filing the present appeal
and finding a reason to show as a cause for delayed filing
of the appeal, she could have and she should have done
the similar enquiry at the earliest point of time. On the
contrary, even according to her, she did not made any
such enquiry for more than a decade. Thus, the
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submission of the learned counsel for the appellant that
the appellant is a semi-educated lady and was unable to
understand the worldly affair is not convincing and
acceptable.
13. At the cost of repetition, it is observed again
that appellant herself has stated in her sworn affidavit that
she had made enquiries on different occasions to know
about the stage of the case in M.C.No.44/2003, though
belatedly, and thereafter in securing the certified copy of
the judgment and engaging the services of other counsel
in preferring this appeal some more delay was caused.
Thus, the appellant was capable and had the required
knowledge to make enquiry about the case and pendency.
14. Fourthly, it is an undisputed fact that the
present appellant herself has instituted
Crl.Misc.No.60/2015 against her husband (i.e., present
respondent) under Section 125 of Cr.P.C. in the Court of
Principal Civil Judge and I Additional JMFC at Ranebennur.
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The same is evident even in document No.1 annexed to
statement of objection filed by the respondent.
In the said Crl.Misc.No.60/2015 the present
respondent appeared. As could be seen in the copy of the
order sheet of Crl.Misc.No.60/2015 produced as document
No.2 by the respondent along with his statement of
objections to the application under consideration. It can be
seen that on 16.04.2015 both the parties to
Crl.Misc.60/2015 were physically present before the Court
and the matter was referred to mediation centre. Thus,
even if we assume that the present appellant was unaware
of the impugned judgment of divorce for a long time, still,
atleast on 16.04.2015, when both the parties were
physically present in the trial Court, which was ceased of
Crl.Misc.No.60/2015, the present appellant herein, who
was the petitioner therein, must have the knowledge of
the impugned judgment of divorce.
Even, if it is assumed that, on 16.04.2015 also, she
was not aware of the impugned judgment of divorce, still,
atleast on 25.06.2015 she was fully aware of passing of
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the impugned judgment, dissolving her marriage with the
respondent under an order of divorce, since, on the said
date the respondent filed his statement of objection in
Crl.Misc.No.60/2015.
15. Thus, if all her contentions that she met a trial
Court advocate in the Court premises accidentally and she
has lost the track of the case etc., are believed, still, the
fact shows that she had the knowledge of worldly affairs.
Since, even after engaging the services of an accidentally
met advocate in the Court premises to contest the matter
in M.C.No.44/2003, she herself could able to engage the
services of another counsel at a different place i.e., at
Ranebennuru, to file a petition against respondent in
Crl.Misc.No.60/2015. Therefore, when she had the
knowledge of selecting the advocates at different places at
different time, it is easily expected of her giving the details
of the previous case i.e., of M.C.No.44/2003 to the
subsequent counsel who filed petition for her in
Crl.Misc.No.60/2015. As such also, it cannot be believed
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even for imagination that she was not aware of the legal
proceedings.
16. Fifthly, as observed above, atleast on
25.06.2015, the present appellant who was the
respondent in Crl.Misc.No.60/2015 came to know about
the impugned judgment dated 06.12.2005, passed in
M.C.No.44/2003 since, in the statement of objections filed
on the said date by the respondent, he has clearly
mentioned about the impugned judgment dated
06.12.2005 passed in M.C.No.44/2003, where under, their
marriage came to be dissolved, as such, with all details,
she had the knowledge of the impugned judgment of
dissolution of marriage, at the latest on 25.06.2015. Even
thereafter, she did not take immediate effective step to
prefer the appeal. On the other hand, the present appeal
came to be filed by her only on 05.04.2019, thus, nearly
four years after she coming to know through records about
the impugned judgment passed in M.C.No.44/2003.
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17. Under the above circumstance, when the
appellant herself was not diligent in prosecuting the matter
and pursuing the legal remedies available to her, but, has
slept over her rights for more than thirteen years, the
mere contention that she is semi-educated and was
unaware of the legal implications is not acceptable. For
that matter, the respondent in his statement of objection
filed in Crl.Misc.No.60/2015 has stated that the petitioner
therein i.e., the appellant herein, has studied upto PUC,
which is not denied from the other side.
18. As observed above, the appellant herself has
shown that she is capable of making enquiries and getting
information, which she claims to have done at a later date.
Therefore, showing sympathy cannot be a cause to
condone the delay. The law could only rush to the help of
the one who is diligent in the matter, but, not to the one
who ignoring his/her rights or his/her entitlements, sleep
over rights showing no convincing reasons. The instance of
the appellant herein falls in the second category.
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19. Under the said circumstances, condonation of
delay of more than thirteen years would not only results in
misusing the discretionary power of the Court, but, it also
causes great injustice to the respondent. Thus, we do not
find any cause, much less, sufficient cause to condone the
delay.
Accordingly, I.A.No.1/2019 stands dismissed.
In view of the dismissal of I.A.No.1/2019, the appeal
stands barred by limitation, as such, does not survive for
consideration.
Sd/-
JUDGE
Sd/-
JUDGE
