Laxmi v. Kanhaiya Lal

VIPIN SANGHI, J.

JASMEET SINGH, J. OCTOBER 7, 2021/dm

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: 07.10.2021 % MAT.APP.( F.C.) 5/2020 andCM APPLs. 452/2020 LAXMI .....Appellant Through: Ms. Deepali Gupta, Adv. versus KANHAIYA LAL .....Respondent Through: Mr. Raj Kumar Verma, Adv. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE JASMEET SINGH J U D G M E N T O F T H E C O U R T CM APPL 450/2020 1. This is an application under Section 5 of the Limitation Act 1963 read with section 28(4) of the Hindu Marriage Act seeking condonation of delay of 2363 (though mentioned as 2303 in the heading) days in filing the appeal. We have heard the Learned Counsels. The reasons given in the application are: i. Paucity of funds; ii. Appellant suffering from depression and having no means of sustenance; iii. Respondent/husband failing to pay even meagre amount of maintenance; iv. Mother of the appellant being seriously ill and no one else to look after the mother. 2. The very fact that the appellant has filed the present case through Delhi High Court Legal Services Committee for legal aid clearly indicates the financial condition of the appellant. We have no reason to disbelieve that the appellant had no financial sources to engage a lawyer and/or file the appeal in time. We do not doubt the genuineness of the reasons given by the appellant. Liberal view is required to be taken while considering an application under Section 5 under the Limitation Act when there is "sufficient cause" shown for non-filing within the period of limitation. Otherwise, grave and serious prejudice would be caused to the appellant in case the delay is not condoned. We may refer to Ummer v. PottengalSubida and Others1. 3. The impugned order is dated 20.05.2013 and, on 26.06.2013, a judgment has been delivered by Mahila Courts-2, Dwarka Courts, New Delhi, wherein the Mahila Court has given a prima facie finding of cruelty meted out by the respondent to the appellant. That being so, the appellant could, in any event, have filed a fresh petition on grounds of cruelty basing it on the order of 26.06.2013 of the Mahila Courts. There being no bar, and the appellant being very much within her rights to file a fresh petition on the grounds of cruelty, we see no reason to relegate the appellant to filing a fresh petition as that would only entail multiplicity of proceedings and delays. 4. In view of aforesaid, the delay of 2363 days in filing the appeal is condoned. CM No. 450/2020 is allowed. 1 (2018) 15 SCC 127. MAT.APP.( F.C.) 5/2020 5. Issue notice. Mr. Raj Kumar Verma along with the respondent, who is present in person, accepts notice. We have with the consent of the parties taken the MAT APP 5/2020 for hearing and are proceeding to dispose it off. 6. The present appeal has been filed by the appellant/wife against respondent/husband under Section 19(1) of the Family Courts Act 1984, seeking the setting aside of decree dated 20.05.2013 passed by the Family Court, Dwarka, New Delhi, wherein the petition filed under Section 13(1)(i-a) of the Hindu Marriage Act 1955, by the appellant/wife for grant of divorce from the respondent/husband on the grounds of cruelty, was dismissed. 7. Briefly stating the facts giving rise to the filing of the present appeal are that the parties were married on 09.05.2005 at Khairthal, Rajasthan according to Hindu rites and ceremonies. Though the marriage was consummated, no child was born from the wedlock. 8. It was the case of the appellant that at the time of marriage, the father of the respondent had taken Rs. 1,40,000/- from the mother of the appellant towards the arrangement of marriage to be made at Khairthal, but despite this, the respondent and his relatives were not satisfied with the arrangements that were made. 9. It was further stated that immediately after the marriage, the appellant was informed by the respondent that he had agreed for the marriage only for dowry and cash, and he was in dire need of money for his business. The respondent had further said that