Chandrakant Ojha v. Chanchala Kumari

The instant appeal under section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 15.04.2024 passed in Original (M.M.) Suit No.227 of 2019 by the learned Principal Judge, Family Court, Garhwa (in short-Family Judge) whereby and whereunder the petition filed under section 13(1) of the Hindu Marriage Act, 1955 by the appellant-husband against the respondent-wife has been dismissed on contest.

The brief facts of the case as per the pleadings made in the plaint having been recorded by the learned Family Judge, needs to be referred herein under as: (i) The case of the petitioner as per plaint in brief is that the marriage of the petitioner was solemnized with the respondent on

23.11.2017 as per Hindu rites and rituals at her maike situated at Hamidganj Police Line, Daltonganj and after the same, she came to the house of the petitioner under masque veil, which gave rise to the factum of showing another girl in place of Chanchala Kumari spreading out the same among the family members. (ii) It is further stated pointing out that later on, the respondent Chanchala Kumari became furious uttering that she was not intended to marry with the petitioner and her marriage was solemnized under the pressure of her parents and, therefore, the petitioner will have no marital relation with her and he can’t be represented himself to be her husband. (iii) It is further case of the petitioner that the parents of the respondent gifted a Swift Dzire car on the occasion of marriage purchasing the same in her name. However, she accompanied back the same to her maike. Not only this, on the very night of the same day, when the petitioner arranged a room in his house, the respondent didn’t allow him to have physical relation with her and on inquiry, she abused with strict warning so as not to approach her in any manner as she had better proposal and due to that, she didn’t intend to marry but was compelled to do so.

(iv) Consequently, she called for her parents and accompanied back to her maike with ornaments gifted to her on behalf of the petitioner side. Subsequently, there were several efforts made but she refused to come back to the petitioner’s house. (v) However, he tried his best to convince her but she was adamant with her previous attitude of not discharging his marital obligation and, thereafter, she never came to the matrimonial 2 house nor did she have any physical relation at any time since the marriage despite being well educated and a teaching girl, in Rotary Public School, Chainpur, Daltonganj. Apart from that, it is also stated that on 08.05.2019, the parents and brother of the respondent, came to the house of the petitioner and abused him, for which, a case was lodged on his behalf before the Garhwa court. Not only this, the parents of the respondent also demanded for crediting half of his salary amount into their account.

(vi) It is stated that the marriage of both the spouses was a proposed marriage and even after the engagement, the respondent behaved the petitioner rudely. However, subsequent solemnization of the marriage, the petitioner with his parents and relatives made endeavour to resolve the dispute but the respondent and her parents behaviour was rude and insolent, as the petitioner is a government teacher, over whom, the respondent with her parents practiced fraud even before and after the marriage and intended to have the monthly salary of the petitioner and also pressurized him to credit the same in their account and, therefore, the petitioner has been deserted continuously since marriage and therefore no option was left for him to live with the respondent wife. (vii) The cause of action for the suit arose on several days and lastly on 15.12.2019 when the respondent refused to enjoy the conjugal life with the petitioner.

It is evident from the factual aspect as narrated hereinabove that the marriage in between the appellant and the respondent, the wife and the 3 husband, respectively was solemnized sometime in the year 2017 as per Hindu rites and rituals. It is averred that the marriage of the petitioner has been solemnized by committing fraud as before the marriage in place of the respondent another girl was shown to the petitioner and his family members. Thereafter, some dispute arose in between the parties which ultimately lead to filing of several cases against each other and finally a suit under sections 13(1) of the Hindu Marriage Act, 1956 has been filed by the husband for dissolution of their marriage.

In the divorce suit, the appellant-wife has appeared and filed her written statement denying all the allegations levelled against her by her husband. The factum of marriage has been admitted but it is denied that the marriage was solemnized by committing fraud and before marriage in place of the respondent another girl was shown to the petitioner and his family members.

In the written statement, she has admitted the fact that the said marriage has not been solemnized under pressure rather a handsome amount of Rs.14,00,000/- and a Swift Dzire car including other articles were presented on the occasion of marriage to the petitioner and marriage was consummated between the husband and wife.

It is alleged in the written statement that after marriage the respondent went to her inlaws’ house where the petitioner and his family members behaved in cruel manner for want of dowry demand. Thereafter, the respondent had to take shelter at her maike leaving all ornaments and clothes there on account of the torture and cruelty meted out to her by her inlaws. 4

It is averred in the written statement that the respondent and her family members always tried their best to conciliate with the petitioner and his family members for living together, but he always avoided by leveling false allegation and also instituted false case against the respondent and her family members.

The respondent has denied by saying that it is incorrect to say that she or her family members ever demanded salary of the petitioner or any kind of money from him. It is also averred that she never deserted the petitioner rather it is the petitioner himself who neglected and deserted her for more dowry demand and, as such, the petitioner has no cause of action to sue and the suit for divorce may be dismissed with cost.

Altogether six witnesses have been examined on behalf of the appellant-husband. The husband himself has been examined as PW1 and certain documents have been exhibited on behalf of the appellant- husband.

On the other hand, on behalf of the respondent-wife four witnesses have been examined including the respondent-wife herself as OPW1.

The learned Family Court, Garhwa has formulated five issues, one of the issues is as to whether the respondent has deserted and neglected the petitioner for a continuous period of more than two years without any reasonable cause and excuse. The issues have been answered in favour of the respondent-wife and, accordingly, the learned Family Judge has dismissed the suit for divorce on contest.

The said judgment has been challenged by the appellant- husband by filing the instant appeal. 5 Submission on behalf of the appellant-husband:

In support of his contention, Mr. Binod Singh, the learned counsel appearing for the appellant-husband has taken the following grounds in assailing the impugned order: (i) It has been contended that the present appeal has been filed after delay of 207 days and for condonation of such delay, an interlocutory application under section 5 of the Limitation Act, 1963 being I.A No.1826 of 2025 has been filed by the petitioner- husband (appellant herein). (ii) It has been contended by referring to paragraph nos.4 to 9 of the application for condonation of delay that due to the reason mentioned in those paragraphs, the delay has been caused and, as such, a prayer has been made to condone the delay so as to hear the matter on merit. (iii) There is an error in the impugned judgment, since, each and every aspect of the matter has not been taken into consideration based upon the documentary evidences as well as ocular evidences. (iv) The element of desertion has been found to be there if the evidences adduced on behalf of the appellant-husband will be taken into consideration but without appreciating the same properly the learned Family Judge has come to the finding by holding that no element of desertion is there and, as such, the impugned judgment suffers from an error. (v) It has been contended that the appellant has been meted out with the cruelty as also respondent-wife is living separately and, as such, both the grounds are available as would be evident from the 6 evidence adduced on behalf of the appellant-husband, but the same has not been taken into consideration.

Learned counsel appearing for the appellant-husband, based upon the aforesaid ground, initially, has contested the case by showing the error in the impugned order and has submitted that the impugned judgment needs interference said to be perverse. Submission on behalf of the respondent-wife:

While on the other hand, Mr. Sheo Kumar Singh, the learned senior counsel appearing for the respondent-wife has submitted that the reason which has been assigned for condoning the 207 days, inordinate delay, in filing the appeal cannot be said to be sufficient cause.

It has been contended that the delay is shown to be there due to illness of father of appellant and financial crunch which is not true.

The learned Family Judge has committed no error in passing the impugned judgment reason being that the interpretation of the word “desertion” as has been interpreted by the Hon’ble Apex Court has been taken into consideration in right perspective and thereafter assessing the evidence adduced on that count the learned Family Judge has come to conclusion that the element of desertion is not available, as such, it is incorrect on part of the appellant-husband to take the ground that there is no consideration of the material evidence adduced on behalf of the appellant-husband.

The learned counsel, however, has submitted that the reason for condoning the delay cannot be said to be sufficient, hence, the application for condonation of delay being I.A No.1826 of 2025 filed by the appellant- 7 husband may be dismissed due to want of sufficient cause for condoning the inordinate delay in filing the appeal of 207 days.

The learned counsel, based upon the aforesaid ground, has submitted that the learned Family Judge after taking into consideration the aforesaid aspect of the matter has passed the impugned judgment and, thus, the same cannot be said to suffer from an error and, as such, the impugned judgment needs no interference. Analysis:

We have heard the learned counsel appearing for the parties and gone through the application for condonation of delay and the findings recorded by the learned Family Judge.

This Court, after taking into consideration the fact that the instant intra-court appeal has been field after inordinate delay of 207 days, deems it fit and proper, to first consider the delay condonation application before going into the legality and propriety of the impugned order on merit.

Learned counsel for the State-appellant has submitted that delay in preferring the appeal may be condoned by allowing the Interlocutory Application being I.A No. 1826 of 2025 on the basis of grounds shown therein treating the same to be sufficient.

The grounds for condoning the delay in preferring the instant appeal as has been mentioned in the said interlocutory application, the relevant at paragraph nos. 4 to 8, are being referred herein as under: “4. That father of the applicant of this case is Senior Citizen who is the continuously suffering from old age ailments and during intervening period, the father of the petitioner continuously treatment of the doctor and petitioner being the son, was fully involves in looking after his father during his illness and in managing the expenditure of the treatment. Due to 8 the aforesaid reason the petitioner was facing financial crisis as well as paucity of time and therefore, there is some delay in contacting and consulting the conducting lawyer with regard to challenging the impugned Judgment of this case before this Hon’ble Court by filing the first appeal. 5. That it is stated that some time has been consumed in getting the certified copy of the judgement of the Trial Court passed in original suit No. 227/2019, judgement dated 15.04.2024.

6. That it is stated that the appellant because of this litigation related to his matrimonial life, he is very much disturbed and at any cost, he does not want to lose his father due to his illness and improper care during his treatment and further. the best possible treatment he wanted to provide. 7. That it is stated that the present remedy by filing the first appeal before this Hon’ble Court is the only statutory remedy available to the appellant and this Hon’ble High Court is the only forum where the appellant can have the legal recourse to get the relief as prayed in the original suit as well as prayed in the first appeal. 8. That it is stated and submitted that the appellant during the intervening period was facing financial crisis and for filing the present case, sometime has been consumed in arranging the litigation cost as well as lawyer’s fee.”

We have heard the learned counsel for the appellants on delay condonation application and before considering the same, this Court, deems it fit and proper to refer certain legal proposition as has been propounded by the Hon’ble Apex Court with respect to the approach of the Court in condoning the inordinate delay.

There is no dispute about the fact that generally the lis is not to be rejected on the technical ground of limitation but certainly if the filing of appeal suffers from inordinate delay, then the duty of the Court is to consider the application to condone the delay before entering into the merit of the lis. 9

It requires to refer herein that the Law of Limitation is enshrined in the legal maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time, as has been held in the judgment rendered by the Hon’ble Apex Court in Brijesh Kumar & Ors. Vrs. State of Haryana & Ors., (2014) 11 SCC

The Privy Council in “General Accident Fire and Life Assurance Corpn. Ltd. v. Janmahomed Abdul Rahim”, (1939-40) 67 IA 416, relied upon the writings of Mr. Mitra in Tagore Law Lecturers, 1932, wherein, it has been said that:

A Law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by law.

In “P.K. Ramachandran v. State of Kerala”, (1997) 7 SCC 556, the Hon’ble Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held at paragraph-6 as under:

6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds.

10

While considering the similar issue, this Court in “Esha Bhattacharjee v. Raghunathpur Nafar Academy”, (2013) 12 SCC 649, wherein, it has been held as under: “21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.9. (ix) the conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.”

It is settled position of law that when a litigant does not act with bona fide motive and at the same time, due to inaction and laches on its part, the period of limitation for filing the appeal expires, such lack of bona fide and gross inaction and negligence are the vital factors which should be taken into consideration while considering the question of condonation of delay.

In the case of “Post Master General & Ors. Vrs. Living Media India Limited & Anr.”, [(2012) 3 SCC 563], it has been held by the Hon’ble Apex Court that it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file 11 was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. The Hon’ble Apex Court has further observed that Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: “27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence 12 and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”

Likewise, the Hon’ble Apex Court in “State of Madhya Pradesh & Anr. Vrs. Chaitram Maywade”, [(2020) 10 SCC 667], after referring to the judgment rendered by the Hon’ble Apex Court in “Post Master General & Ors. Vrs. Living Media India Limited & Anr.” (supra,) has held at paragraphs 1 to 5 as hereunder: “1. The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The special leave petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654] in terms of our order dated 15- 10-2020.

2. We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 5-1-2019, it is stated that the Government Advocate was approached in respect of the judgment delivered on 13-11-2018 [Chaitram Maywade v. State of M.P., 2018 SCC OnLine HP 1632] and the Law Department permitted filing of the SLP against the impugned order on 26-5-2020. Thus, the Law Department took almost about 17 months’ time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the Legal Department.

3. We consider it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the Legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of judgment in Postmaster General v. Living Media (India) Ltd. [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649] 13

4. We have also expressed our concern that these kinds of the cases are only “certificate cases” to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing.

5. Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, we impose costs on the petitioner State of Rs 35,000 to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time. We have put to Deputy Advocate General to caution that for any successive matters of this kind the costs will keep on going up.”

The Hon’ble Apex Court in “Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd.”, (1962) 2 SCR 762, has held that merely because sufficient cause has been made out in the facts of the given case, there is no right to the appellant to have delay condoned. At paragraph- 12, it has been held as hereunder:- “12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant.

Thus, it is evident that while considering the delay condonation application, the Court of Law is required to consider the sufficient cause for condonation of delay as also the approach of the litigant as to whether it is bona fide or not as because after expiry of the period of limitation, a right is accrued in favour of the other side and as such, it is necessary to look into the bona fide motive of the litigant and at the same time, due to inaction and laches on its part.

It also requires to refer herein that what is the meaning of ‘sufficient cause’. The consideration of meaning of ‘sufficient cause’ has been made in “Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer”, [(2013) 14 SCC 81], wherein, it has been held by the Hon’ble Apex Court at paragraphs 9 to 15 hereunder:- “9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer 15 the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] , Mata Din v. A. Narayanan [(1969) 2