IMPORTANT POINT
A party seeking to challenge a decree must do so within the prescribed limitation period, and claims of fraud must be substantiated by clear evidence; mere delay in seeking relief can bar the claim.

JUDGMENT

Arif S. Doctor, J. - The present Appeal impugns an order dated 18th April 2017, by which the captioned Notice of Motion ('the said Notice of Motion') came to be dismissed. The said Notice of Motion was filed by the Appellant on 20th October, 2016 seeking to set aside a Decree of Divorce dated 8th December 1987 ('the said Decree') by which the marriage between the Appellant and the Respondent had been dissolved. Thus, admittedly, the said Notice of Motion was filed after over 28 years from the date of the Decree.

2. Before adverting to the rival contentions, it is useful to first set out a few facts, viz.

i. The Appellant and the Respondent were married in the year 1981 in accordance with the provisions of the Parsi Marriage & Divorce Act,1936. In the year 1982 the Appellant and the Respondent were blessed with the birth of their daughter.

ii . It appears that thereafter there was some matrimonial discord between the Appellant and the Respondent, which led to both of them filing their respective Petitions under the provisions of The Guardians and Wards Act,1890 both seeking custody of their minor daughter. MPT No. 531 of 1987 was filed by the Respondent and MPT No. 532 of 1987 was filed by the Appellant.

iii. After the filing of the aforesaid MPT's, settlement talks ensued between the Parties and their respective advocates. The Respondent then, during the pendency of the settlement talks on 29th October 1987 filed the captioned Suit inter alia seeking a divorce from the Appellant on the ground of desertion. The Appellant thereafter on 10th November 1987, filed another MPT (Being MPT No. 596 of 1987) seeking custody of their minor daughter.

iv . It is not in dispute that, the Appellant then on 7th December 1987 filed her written statement and counter claim ('the first written statement') in which the Appellant opposed the Suit and inter alia sought restitution of conjugal rights. Also, during this time, it is not in dispute and the record infact bears out that settlement talks were also on going between the Parties and their respective Advocate.

v. Thereafter, on 8th December 1987 various events took place, namely (a) that a sum of Rs. 2,00,000/- was sent by the Respondent to advocate of the Appellant, (b) the Respondent executed a second written statement dated 8th December, 1987 ('the second written statement) -which is denied by the Appellant, (c) the advocate for the Respondent gave a no objection to the sum of Rs. 2,00,000/- being handed over to the Appellant and (d) the Advocate for the Respondent lodged a draft of the Divorce Decree with the Chief Matrimonial Court with a request to issue two certified copies thereof.

vi . On 9th December 1987 Parties entered into consent terms in MPT No. 596 of 1987, which inter alia provided (a) the Appellant would get custody of their then minor daughter, (b) the Respondent was to make payment of a sum of Rs. 2,00,000/- as maintenance of then minor daughter; and (c) the Respondent was permitted visitation rights in respect of his minor daughter. Thereafter, on 13th February 1988 the Decree for Divorce was drawn up. The Respondent then on 1st November, 1988 got remarried and has a son out of that wedlock.

vii. The Appellant on 18th July, 2014 filed a praciepe with the Registrar of Parsi Chief Matrimonial Court in which the Appellant had stated, viz.

'Be pleased to furnish certified copy of Judgment and Decree passed in the above mentioned Suit. The Defendant is unable to recollect the date of the passing of the Decree. The Defendant is ready and willing to bear the necessary charges for the same.'

The Appellant thereafter, as already noted above, on 20th October, 2016 filed the said Notice of Motion in which the Appellant sought the following reliefs, viz.

'a) This Hon'ble Court may be pleased to set aside the incorrect Decree dated 8.12.1987 unilaterally drawn up on 13.2.1988 by the Plaintiff and declare the Divorce Decree as null and void;

b) This Hon'ble Court may be pleased to condone t