Madhya Pradesh High Court
Smt. Ayushi Patel vs Satish Patel on 5 December, 2023
Author: Sheel Nagu
Bench: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 5 th OF DECEMBER, 2023
FIRST APPEAL No. 809 of 2023
BETWEEN:-
SMT. AYUSHI PATEL W/O SATISH PATEL, AGED ABOUT
27 YEARS, HOUSE NO. 1327 MAHESHPUR NEARBY RAJIV
GANDHI SCHOOL NARSHINGH WARD MADAN MAHAL
JABALPUR PRESENTLY RESIDENCE THROUGH ITS
FATHER SHRI NARENDRA PATEL BOHARIBAND BAKAL
DISTRICT KATNI (MADHYA PRADESH)
.....APPELLANT
(BY MR. RAJMANI SINGROUL - ADVOCATE)
AND
SATISH PATEL S/O RAMSEVAK PATEL, AGED ABOUT 38
YEAR S , 1327 MAHESHPUR NEARBY RAJIV GANDHI
SCHOOL NARSHINGH WARD MADANMAHAL DISTRICT
JABALPUR (MADHYA PRADESH)
.....RESPONDENT
(BY MR. SALIM AHMAD - ADVOCATE)
This appeal coming on for admission this day, Justice Devnarayan
Mishra passed the following:
ORDER
Record of the Family Court has been received.
2. Heard on I.A. No.5521 of 2023, an application under Section 5 of
Limitation Act for condonation of delay in filing this appeal.
3. Learned counsel for the appellant has argued that the appellant/wife
had no knowledge about the decree of dissolution of marriage. She was living
with her husband and there was no dispute between the parties. On the festival
of Rakshabandhan, the appellant/wife came to her parental home situated at
Jabalpur in the month of July, 2022. After celebrating the festival of
Rakshabandhan, the respondent/husband was asked by appellant's father to
take the appellant/wife to her matrimonial home but he failed to respond.
Thereafter, the father of appellant went to the house of appellant where he came
to know about the decree of dissolution of marriage. Thereafter, the appellant
received judgment of decree dated 31.01.2022 and filed the review petition
before the Principal Judge Family Court on 18.10.2022 but on 23.02.2023, the
aforesaid petition was withdrawn and thereafter, the first appeal has been filed.
4. Learned counsel for the appellant has submitted that the appellant is a
rustic lady and unaware of the legal proceedings. The judgment and decree has
been obtained by the respondent by playing fraud and the appellant has no
knowledge of the dissolution of marriage. The delay is bonafide and seems to
be reasonable so delay of 312 days be condoned by this Court and this appeal
be heard on merits.
5. The respondent/husband has filed reply to the aforesaid application
and has raised an objection on the ground that is no legal force in the
application so it is not maintainable.
6. Learned counsel for the respondent has submitted that the appellant
had initiated the proceedings of divorce by mutual consent. Mediation had
taken place and after cooling period, proceedings of mediation took place. The
respondent paid an amount of Rs.3,00,000/- by cheque which was withdrawn
by the appellant. The appellant has wrongly mentioned that she has no
knowledge about the decree of dissolution of marriage. The cause of delay is
not sufficient and not bonafidely explained, hence, I.A. No.5521 of 2023 filed
by the appellant be rejected.
7. Heard the parties and perused the record of the Family Court.
8. From the record of the Family Court Jabalpur H.M.A Case
No.566/2021 reveals that the appellant/wife Mrs. Ayushi Patel and
respondent/husband Satish Patel have filed the petition under Section 13-B of
the Hindu Marriage Act before the Principal Judge Family Court Jabalpur on
23.06.2021. The Court has verified the identity of both the parties from their
Aadhar Cards. As per the report of counsellor dated 23.06.2021, the
counselling was unsuccessful and both the parties were at consensus for
divorce by mutual consent. At that time, the husband/respondent deposited a
cheque of Rs.3,00,000/- that was kept in the custody of the Court and was sent
to Nazarat of the Family Court. The case was fixed on 04.01.2022 i.e. after six
month of cooling period.
9. On 04.01.2022, the parties were again sent for counselling and as per
the report of counsellor Mrs. Manju Singh, the counselling between the parties
was unsuccessful. When the counsellor has submitted a counselling report
before the Family Court, the Court fixed the case for statements of the parties
on 05.01.2022. The statements of the parties were recorded. A cheque vide
number 000011 of Bank of India was re-validated. The case was fixed on
25.01.2022. On 25.01.2022, the parties were sent for mediation and as per the
report of the Mediator Judge/Second Additional Principal Judge, Family Court,
Jabalpur, the mediation proceedings were unsuccessful and the parties were at
consensus for dissolution of marriage. After that the case was fixed for
judgment on 29.01.2022 after which, the judgment was delivered on 31.01.2022
and no one filed the objection, decree was signed.
10. From the record of the Family Court, it is clear that both the parties
were physically present before the Court, the Court himself has identified the
parties. The parties were represented by counsel Mr. V.K. Tiwari. During the
course of proceedings, the Court himself and through counsellor tried to
reconcile the proceedings of divorce between the parties but the parties were
not agreeable for the same.
11. The case was adjourned for six month and during this cooling
period, the parties have not withdrawn their consent. Thereafter, the Family
Court in the second round adopted the proceedings of conselling and sent the
parties for mediation when these measures were found unsuccessful, then the
statements of the parties were recorded. Permanent alimony that was submitted
through cheque was handed over to the appellant. Thus, in the full knowledge
of the appellant, the judgment and decree has been passed.
12. From the appeal and the record, it cannot be inferred that fraud had
been played by the respondent with the appellant. It is also worthwhile to
mention that the appellant has adopted the process of review and after pursuing
for considerate period, the appellant has not pressed that application, thus, it
was rejected. From the very beginning, the appellant has knowledge of
proceedings of judgment and decree. Thus, the delay of 312 days in filing this
appeal has not been properly explained by the appellant. Hence, the I.A.
No.5521/2023 filed by the appellant is rejected.
13. Appeal being time barred cannot be admitted and the same is hereby
dismissed.
(SHEEL NAGU) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
