IMPORTANT POINT
Matrimonial appeal has to be filed within limitation period of 90 days.

JUDGMENT AND ORDER (CAV)

Heard Mr. P.K. Das, the learned counsel appearing for the applicant as well as Mr. S. Mitra, the learned counsel representing the opposite party.

2. This is an application under Section 5 of the Limitation Act praying for condonation of 122 days of delay in preferring the matrimonial appeal under Section 28 of the Hindu Marriage Act, 1955.

3. The factual matrix leading to filing of this application is like this– Shri Ved Prakash Indouliya filed an application under Section 13 of the Hindu Marriage Act seeking a decree of dissolution of his marriage with his wife Rashmi Indouliya. The case was filed in the court of the District Judge, Kokrajhar. Notice was issued to Rashmi Indouliya. She received the notice, but did not contest the case. Therefore, the court passed the decree on 17.07.2021 against her ex parte.

4. She did not file an appeal against the said decree within the time frame stipulated by law. After 122 days of delay, she filed the appeal along with the present application. Rashmi Indouliya has stated that during the COVID-19 period, her husband had sent her to Mathura in the State of U.P. and therefore, she could not come to Kokrajhar to contest the case before the trial court.

5. Regarding the delay of 122 days, Rashmi Indouliya has stated that she has to look after her 8 year old son and her old parents. Therefore, the delay occurred.

6. The respondent submitted that when the applicant did not file the appeal within the stipulated time, he remarried.

7. At this stage Section 15 of the Hindu Marriage Act is applicable, which reads as under:

“15. Divorced persons when may marry again.—When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

8. Mr. Das has relied upon a judgment of the Supreme Court that was rendered in Tejinder Kaur v. Gurmit Singh, (1988) 2 SCC 90. The Supreme Court held as under:—

“9. In view of this, it was incumbent on the respondent to have enquired about the fate of the appeal. At any rate, the High Court having dismissed the appeal on July 16, 1986 the petitioner could have presented a special leave petition within ninety days therefrom under Article 133(c) of the Limitation Act, 1963 i.e. till September 14, 1986. Till that period was over, it was not lawful for either party to marry again as provided by Section 15. It was incumbent on the respondent, as observed in Lila Gupta case [(1978) 3 SCC 258 : AIR 1978 SC 1351 : (1978) 3 SCR 922] to have apprised himself as to whether the appeal in the High Court was still pending; and if not, whether the period for filing a special leave petition to this Court had expired. We must accordingly overrule the preliminary objection following the views expressed in Chandra Mohini [AIR 1967 SC 581 : (1967) 1 SCR 864] and Lila Gupta [(1978) 3 SCC 258 : AIR 1978 SC 1351 : (1978) 3 SCR 922] cases. We wish to add that in the subsequent decision in Lila Gupta [(1978) 3 SCC 258 : AIR 1978 SC 1351 : (1978) 3 SCR 922] the court while dealing with the effect of deletion of the proviso observed: (SCC p. 269, para 12)

“The net result is that now since the amendment parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided of course the period of appeal has expired.”

The court adverted to the word of caution administered by Wanchoo, J. in Chandra Mohini case [AIR 1967 SC 581 : (1967) 1 SCR 864] and reiterated: (SCC p. 269, para 12)

“…even though it may not have been unlawful for the husband to have married immediately after the High Court’s decree for no appeal as of right lies from the decree of the High Court to this Court, still it was for the respondent to make sure whether an application f