KULDIP KAUR Vs. JASWINDER SINGH

JUDGEMENT

(1.) Parties were married on 20.11.1972. The respondent moved an application under Section 13(1)(1a) and (1b) of the Hindu Marriage Act (hereinafter to be called the Act) for divorce on the ground that she had deserted the matrimonial house without any reason. The additional district judge by his order dated 31.7.1978 accepted the plea of the husband and found that the appellant was guilty of desertion and as a result of the finding passed a decree of divorce under Section 13(1) & (lb) of the Act infavour of the respondent. The appellant wife has filed an appeal in this court on 30.10.1978. Counsel for both the parties agree that after deducting the time for the obtaining, the certified copy the delay in the filing of the appeal in this court is about 25 days. As the appeal was filed beyond the limitation period, an application was filed for condoning the delay. The reason it stated to be that after the passing of decree on 31.7.1978 the appellant contacted Bk. Man Singh, a senior advocate and his junior Sh. Surinder Singh and was told by them that the time for filing the appeal in the High Court was 90 days. It is further stated that the advocate, Ch. Amarjit Singh who filed this appeal on 20.10.1978 told her that the appeal is barred by time. The appellant after that is said to have contacted Bk. Man Singh to ask him for affidavit to the effect that he had given the advice that the appeal could be filed within 90 days. He however wanted to see the certified copy before giving the affidavit. The appeal was filed on 20.10.1978 with the affidavit of Sh. Surinder Singh, Advocate staling that he and Bk. Man Singh had advised the appellant that the time allowed to the appellant for filing the appeal before the High Court was 90 days after excluding the time spent in obtaining the certified copies. It is on this ground that the delay in filing the appeal is asked to be condoned.

(2.) The allegation in this application has been denied in the reply filed by the respondent in which it is pleaded that Bk. Man Singh was a lawyer of long standing and was conducting a number of matrimonial cases and it is wrong to say that Bk. Man Singh did not know the period of limitation for filing the appeal. Bk. Man Singh has not filed any affidavit in support of his alleged erroneous belief as alleged by the appellant in this appeal. This reply is supported by the affidavit of the respondent dated 6.4.1979. No further affidavit has been filed by the appellant. Nor was any effort made to obtain an affidavit from Bk. Man Singh in token of the fact that he had given the said advice. Of course it is now too late to obtain an affidavit from Bk. Man Singh because he has unfortunately died about 10 days back. It may be noted that he had been coming to this court immediately after the vacation, but for reasons best known to the appellant no effort was made to obtain this affidavit from him though this matter had come up before the court earlier on a number of occasions even before the vacations. It is no doubt true that there is affidavit by Sh. Surinder Singh Advocate that advice has been given that appeal may be filed within 90 .days. I am hesitant to say anything about this affidavit, and it is enough for me to say that possibly this affidavit can at the best speak for the deponent and may show serious ignorance of law possibly excused by the juniority in the profession, but such a serious error cannot be attributed to Bk. Man Singh a Senior Advocate of this court. more especially when no affidavit of Bk. Man Singh has been filed. In such a view I cannot accept that the appeal was filed late because of wrong advice given by the counsel. The circumstances seem to suggest that the decision to file the appeal was taken at a late stage by the reasons for the same are not some how discernable on the record.

(3.) I find that the certified copy was ready on 28.8.1978 and the same was collected on the same day. An affidavit in reply has also been filed in which it is stated that the appellant has moved under Section 25 of the act for grant of permanent maintenance on 12.8.1978 through Bk. Man Singh, Advocate. Section 25 of the Act provides for permanent alimony and maintenance. Apparently a party who is wanting to file an appeal to challenge the order of the trial court granting divorce against her would be loath to move an application under Section 25 unless the matter has been disposed of an appeal or unless it is contemplated not to file an appeal. I can hardly understand the logic of filing an application on 12.8.1978 if the appellant wanted to file an appeal to this court against the dicree of divorce granted on 31.7.1978. This action seems to raise very serious doubt about the appellant wanting to file an appeal and may explain pos.siblywhy all this time was allowed to lapse. It should also be seen that Bk. Man Singh was conducting her matter under Section 25 of the Hindu Marriage Act earlier also and it can hardly be possible that he may not be knowing the period within which the appeal has to be filed. It is true that prior to amendment made in the Act by Parliament Act 68/76 time for filing an appeal was 90 days. But a number of comprehensive amendments were made in 1976 and this period of 90 days was reduced to 30 days. It may also be mentioned that the divorce in the present case has been obtained under Section 13(l)(1b) on the ground that the appellant had deserted the respondent for a continuous period of not less than 2 years. It is very relevant to note that this amendment in 1976 permitted divorce to be obtained on the ground of desertion. Prior to 1976 ground of desertion could only be available for asking judicial separation. I cannot believe that Bk. Man Singh when he was contacted about the filing of the appeal by the appellant would be unaware of the amendment reducing the period of filing an appeal from 90 days to 30 days. It is no doubt true that a mistaken advice given by a counsel would normally be a good reason for .condoning the appeal unless of course the advice was so reckless as to amount to lack of bonafide. In the present case the resume of facts shows that when the application under Section 25 was moved the intention of filing appeal against the decree of divorce was apparently missing and when later on for some reason it was decided to file an appeal the limitation had expired and it was for this reason that this explanation of having been giving wrong advice by the counsel was being put forward. I find myself unable to accept this bald explanation unsupportable on evidence and on probabilities. I may notice that in the supplementary affidavit filled on 27.7.1979 by the respondent it is stated that the appellant has been negligent in filing the appeal and that the respondent has since contracted marriage after the expiry of period of limitation of which the appellant has the knowledge.