Failure to provide a cogent explanation for delay in challenging a Decree of divorce by Mutual Consent may lead to the dismissal of the appeal.

JUDGMENT (Oral)

1. CM Appl. 3453/2019 under Section 5 read with Section 14 of the Limitation Act, 1963 has been filed by the appellant seeking condonation of delay of 4133 days in filing the appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 for setting aside the Order and Judgment dated 28.05.2007 vide which the learned Additional District Judge has allowed the divorce by mutual consent under Section 13(B)(2) of the Hindu marriage Act, 1955 (in short, the `HMA').

2. It is submitted in the application that the divorce by mutual consent under Section 13(B)(2) of the HMA was granted by the learned Additional District Judge vide Order and Decree dated 28.05.2007. It is claimed that the Decree of divorce was obtained by making the appellant believe that the said proceedings were necessary for the appellant to be able to visit and reside in Italy with the respondent. Believing the representation to be true and without the knowledge of the proceedings, she participated in the proceedings for divorce by Mutual Consent.

3. Subsequently, she came to know that a fraud has been committed upon her. She contacted her lawyer who filed an application for annulment of marriage before the same Court of learned Additional District judge. She left the matter to be pursued by her counsel but he was unable to pursue it since he suffered from brain haemorrhage. The appellant was not aware of his medical condition till she enquired about the matter in November, 2018 and came to know that her counsel was bed-ridden. Upon further enquiry, she was informed that the application of the appellant has been dismissed in default. She obtained the certified copy of the order of dismissal.

4. It is claimed that there is a delay of 4133 days in filing the present appeal for the reasons stated above. Prayer is therefore made that the delay in filing the appeal may be condoned and the impugned Order dated 28.05.2007 granting divorce by mutual consent be set aside.

5. The respondent in his reply to the application has observed that the appellant has not approached the Court with clean hands and has suppressed material facts. The application i.e. CM Appl.3453/2019 for condonation of delay is not maintainable as the appellant had voluntarily, in sound mind, given the statement on oath before the Court of learned Additional District Judge for grant of divorce and stated that the consent of the appellant was not obtained by any `force', `fraud' or `undue influence'. In fact, the joint application under Section 151 CPC has also been filed to seek waiver of statutory period of six months which was allowed and thereafter, the statements of the parties were recorded. It is claimed by the respondent that in fact, the appellant intends to harass the respondent and she in connivance with both the daughters who are now major, want to usurp the property bearing No. 1408/13, Second Floor, Govindpuri, Kalkaji, New Delhi which is the only property that the respondent owns.

6. It is also stated that the appellant had filed Civil Suit bearing No.77/18 for Permanent Injunction praying to restrain the respondent from disturbing their peaceful possession on the suit property but the Suit was dismissed vide Order 31.01.2018. Thereafter, she took frivolous action by filing a petition under Protection of Women from Domestic Violence Act, 2005 and by concealing material facts was able to get an ex-parte stay on the suit property, even though the same relief has been denied by the learned Civil Judge. The appellant by suppression of facts sought the same relief from the learned M.M. The learned M.M. noted that the appellant took the interim stay by the concealment of fact of divorce between the parties and thereby, vacated the ex-parte stay Order vide Order dated 13.04.2018. The petition under Domestic Violence Act was also dismissed vide Order dated 20.12.2018.

7. The respondent on the other hand, has also filed a criminal