DEEP MALA SHARMA Vs. MAHESH SHARMA

JUDGEMENT

(1.) The defendant-appellant, has filed the present First Appeal under Section 19 of the Family Courts Act, 1984, against the judgment and order dated 18.5 90 passed by the Judge, Family Court, Jhansi in Misc. CaseNo. 25/89 rejecting her restoration application along with an application under Section 5 of the Limitation Act 1963 (for short the Act) under Article 123 of the Act the period of limitation to set aside an ex-parte decree was 30 days from the date of decree, or where summons or notice was not duly served, when the applicant had knowledge of the decree. The application for restoration was filed by the appellant (the wife) against the ex-parte decree dated 30.5.89 passed by the Family Court in Matrimonial case No. 65 of 1988 (Mahesh Sharma v. Smt. Deep Mala Sharma) under Section 13 of the Hindu Marriage Act, 1955, granting ex-parte decree for divorce in favour of the respondent (the husband) This restoration application was filed under order 9 rule 13 of the Code of Civil Procedure 1908 (for short the Code).

(2.) The material facts which are almost admitted, may be stated. A petition for divorce was filed by the respondent (the husband) against the appellant, (the wife) under Section 13 of the Hindu Marriage Act, 1955, which was decreed ex-parte on 30.5.89 without any knowledge of the appellant, the wife. It was averred in the restoration application supported by a Medical Certificate of the Doctor, filed by the defendant that she fell ill on 1.3.89 and recovered on 28 3 89. Unfortunately on 29th March, 1989 her younger sister Ku. Kamla died and the appellant plunged in grief and sorrow. She came to know of the ex-parte decree on 16 2.89 when the parties appeared in another suit filed by the appellant, the wife with the relief for the restitution of conjugal rights in a Family Court at Gwalior. Notices were served on Mahesh Sharma, the respondent-husband and be was directed that he may get the suit for restitution of conjugal rights decided on the basis of conciliation. After disposal of suit for restitution of conjugal rights, the petition for divorce at Jhansi was to be decided in which 3.3.89 was the date fixed for disposal of application filed by the appellant for awarding her some amount in connection with the expenses of litigation. Under these circumstances it was averred that 30 days Limitation under Article 123 of the Act was to be counted from 15.9.89 when she was informed about the ex-parte decree in the divorce suit in the case of restitution of conjugal rights pending in the Family Court at Gwalior. She prayed that under these pressing circumstances the delay in filing the restoration application may be condoned and the same may be allowed and ex pane decree may be set aside. That application, however, has been rejected by the impugned order.

(3.) The respondent-husband contested the restoration application stating that appellant has got knowledge much earlier, and in any case, even after the death of her younger sister on 29,3.89, within 13 days the ritual ceremony amongst Hindus is over and thereafter she need and could not be in grief or sorrow, hence could have filed the restoration application immediately after 13th day. The Court below has rejected the restoration application and the averments contained therein was disbelieved and held the application to be time barred. Hence the present appeal has been filed.