SHAKUNTALA @ SHAKUN Vs. GOVIND PRASAD

JUDGEMENT

(1.) In this appeal the appellant/wife has challenged the judgment and decree dated 19-11-81 passed by the IV Addl. Judge to the Court of District Judge, Jabalpur, in civil suit No. 8 A/81, allowing the petition of the respondent/husband for dissolution of marriage.

(2.) The respondent/husband had presented a petition for divorce on the ground that the appellant had been incurable of unsound mind under clause (iii) of sub-section (1) of Sec. 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). The appellant contested the said petition by denying the allegation that she is of incurable unsound mind. On evaluation of evidence, the trial court found favour with the allegations made in the divorce petition by recording a finding that the appellant was of unsound mind which was not curable and therefore granted a decree of divorce in favour of the respondent. The trial court however granted maintenance allowance to the appellant @ Rs. 80.00 P.M. under section 25 of the Act. The appellant being aggrieved by the raid decree has filed this appeal.

(3.) The appeal was filed barred by limitation by 50 days. The appellant had made an application under section 5 of the Limitation Act for condonation of delay in filing the appeal. The reason for late filing of the appeal is stated that the counsel had advised her that the appeal would be filed under section 90 of the C.P.C. for which the limitation prescribed under the Limitation Act was 90 days while in fact the limitation for an appeal under the Act is 30 days as provided in Sec. 28 of the Act. According to the appellant this was a bona fide mistake on the part of the counsel which deserves to be condoned. This application has been contested vigorously by the respondent. Learned counsel for the respondent submitted that such a mistake could not be said to be a bona fide mistake, as it could have been avoided if due care and attention was taken. Learned counsel for the respondent however contended that if under the existing facts and circumstances, the appellant was willing to confine the appeal to the scrutiny on the question or the maintenance allowance only, he is prepared to give concession in condonation of delay. Learned counsel for the appellant is prepared to this suggestion. The appellant was advised by Shri N. P. Dubey, who is a senior advocate of this Court. The appellant could not be penalised for the wrong advice of the senior counsel on the question of limitation. I therefore allow the application and condone the delay.