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MUGDHA
MUGDHA MANOJ
MANOJ PARANJAPE
PARANJAPE Date:
2024.04.30
17:08:34
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
(FROM ITS PARSI CHIEF MATRIMONIAL JURISDICTION)
APPEAL NO.342 OF 2017
IN
NOTICE OF MOTION NO.7 OF 2016
IN
PARSI SUIT NO.31 OF 1987
WITH
IN PERSON APPLICATION NO. 45 OF 2019
WITH
NOTICE OF MOTION NO. 157 OF 2019

Mrs. Shireen Kersi Dubash

Parsi Indian Inhabitant,
presently residing at
Cusrow Baug, M-43,
Shahid Bhagat Singh Road,
Colaba, Mumbai – 400 001. … Appellant (Original Defendant)
V/s.
Mr. Kersi Jai Dubash
Parsi Indian Inhabitant,
presently residing at
Roxana, Flat No.8, B-Wing,
3rd Floor, 109, Maharshi Karve
Road, Mumbai–400 020. … Respondent (Original Plaintiff)
----------
Ms. Shireen Dubash, Appellant in person is present.

Mr. Karl Tamboly a/w Ms. Tanya Chaudary & Ms. M. Srinidhi i/by
Bharucha & Partners for the Respondent.
----------

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CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &

ARIF S. DOCTOR, J.

RESERVED ON : 15TH MARCH 2024

PRONOUNCED ON : 30TH APRIL 2024

JUDGMENT: (PER ARIF S. DOCTOR, J.)

The present Appeal impugns an order dated 18th April

2017, by which the captioned Notice of Motion (“ the said Notice

of Motion”) came to be dismissed. The said Notice of Motion was

filed by the Appellant on 20th October, 2016 seeking to set aside

a Decree of Divorce dated 8 th December 1987 (“the said

Decree”) by which the marriage between the Appellant and the

Respondent had been dissolved. Thus, admittedly, the said

Notice of Motion was filed after over 28 years from the date of

the Decree.

2. Before adverting to the rival contentions, it is useful

to first set out a few facts, viz.

i. The Appellant and the Respondent were married in the

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year 1981 in accordance with the provisions of the Parsi

Marriage & Divorce Act,1936. In the year 1982 the

Appellant and the Respondent were blessed with the

birth of their daughter.

ii. It appears that thereafter there was some matrimonial

discord between the Appellant and the Respondent,

which led to both of them filing their respective Petitions

under the provisions of The Guardians and Wards

Act,1890 both seeking custody of their minor daughter.

MPT No. 531 of 1987 was filed by the Respondent and

MPT No. 532 of 1987 was filed by the Appellant.

iii. After the filing of the aforesaid MPT’s, settlement talks

ensued between the Parties and their respective

advocates. The Respondent then, during the pendency

of the settlement talks on 29 th October 1987 filed the

captioned Suit inter alia seeking a divorce from the

Appellant on the ground of desertion. The Appellant

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thereafter on 10th November 1987, filed another MPT

(Being MPT No. 596 of 1987) seeking custody of their

minor daughter.

iv. It is not in dispute that, the Appellant then on 7 th

December 1987 filed her written statement and counter

claim (“the first written statement”) in which the

Appellant opposed the Suit and inter alia sought

restitution of conjugal rights. Also, during this time, it is

not in dispute and the record infact bears out that

settlement talks were also on going between the Parties

and their respective Advocate.

v. Thereafter, on 8th December 1987 various events took

place, namely (a) that a sum of Rs. 2,00,000/- was sent

by the Respondent to advocate of the Appellant, (b) the

Respondent executed a second written statement dated

8th December, 1987 (“the second written statement) –

which is denied by the Appellant, (c) the advocate for

the Respondent gave a no objection to the sum of Rs.

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2,00,000/- being handed over to the Appellant and (d)

the Advocate for the Respondent lodged a draft of the

Divorce Decree with the Chief Matrimonial Court with a

request to issue two certified copies thereof.

vi. On 9th December 1987 Parties entered into consent

terms in MPT No. 596 of 1987, which inter alia provided

(a) the Appellant would get custody of their then minor

daughter, (b) the Respondent was to make payment of a

sum of Rs. 2,00,000/- as maintenance of then minor

daughter; and (c) the Respondent was permitted

visitation rights in respect of his minor daughter.

Thereafter, on 13th February 1988 the Decree for Divorce

was drawn up. The Respondent then on 1 st November,

1988 got remarried and has a son out of that wedlock.

vii. The Appellant on 18th July, 2014 filed a praciepe with the

Registrar of Parsi Chief Matrimonial Court in which the

Appellant had stated, viz.

“Be pleased to furnish certified copy of Judgment and

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Decree passed in the above mentioned Suit. The Defendant

is unable to recollect the date of the passing of the Decree.

The Defendant is ready and willing to bear the necessary

charges for the same.”

The Appellant thereafter, as already noted above, on 20 th

October, 2016 filed the said Notice of Motion in which

the Appellant sought the following reliefs, viz.

“a) This Hon’ble Court may be pleased to set aside the

incorrect Decree dated 8.12.1987 unilaterally drawn
up on 13.2.1988 by the Plaintiff and declare the
Divorce Decree as null and void;

b) This Hon’ble Court may be pleased to condone the

delay in the filing of the present Notice of Motion;

c) This Hon’ble Court may be pleased to direct the

Registry to investigate into the matter so as to
inquire to the validity of the Decree.

d) This Hon’ble Court may be pleased to hold the

proceedings of this case in camera and not made
reportable to the press.

e) This Hon’ble Court may be pleased to address the

Plaintiff and Defendant by other identities and to
direct the Registry to not make the names of both
parties public or disclose their respective identifies at
any stage.

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f) For costs of this Motion to be provided for.

g) For any other and further reliefs, this Hon’ble Court

deems fit and proper in the facts and circumstances
of the present proceedings.”

The said Notice of Motion came to be dismissed by the

Impugned Order and it is thus that the present Appeal

came to be filed.

Submissions of Ms. Shireen Dubash Appellant in person:

3. Ms. Dubash, at the outset, submitted that the said

Decree was obtained by playing a fraud on this Court since

there was no judgement on the basis of which the said Decree

was drawn up. She then pointed out that the second written

statement was also a fraudulent document since (i) no

leave/order of the Court was produced pursuant to which the

same was permitted to be filed and (ii) it did not have any

verification clause. She therefore submitted that there could be

no manner of doubt that the said Decree was a fraudulent one.

4. Ms. Dubash then invited our attention to the first

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written statement filed by her and pointed out that the same

was dated 7th December 1987 which was only one day prior to

the second written statement. Ms. Dubash pointed out from the

first written statement that the Appellant had opposed the

prayer for divorce and had infact sought for restitution of

conjugal rights. She submitted that the Appellant never wanted

a divorce, and it was indeed most odd that one day after the

first written statement was filed, a second written statement

with a diametrically opposite stand was filed. She thus

submitted that it was clear that the second written statement

was a forged and fabricated document and not one which could

ever be said to be the written statement of the Appellant.

5. Ms. Dubash then submitted that it was only because

of the fear of losing custody of her minor daughter that she had

agreed to accept the offer of the Respondent, i.e., Rs.2,00,000/-

and enter into the Consent Terms. She however pointed out that

the said Consent Terms had been filed in Miscellaneous Petition

No.596 of 1987 and were not filed in the captioned Suit.

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6. Ms. Dubash then invited our attention to two letters

both dated 8th December 1987 addressed by D. H. Nanavati &

Company the then Advocates of the Appellant to Mulla & Mulla &

Craigie Blunt & Caroe Advocates and Solicitors in which it had

been categorically stated that the Appellant had refused to

consent to a decree of divorce and pointed out therefrom that

the said letters specifically recorded that the Appellant had

refused to sign a written statement giving consent for a decree

of divorce. She therefore submitted that plainly the decree of

divorce was a fraudulent document and one for which the

Appellant had never given her consent.

7. Ms. Dubash pointed out that while the date of the

decree of divorce was 8th December 1987 and was stated to

have been passed by Justice Guttal, the said Learned Judge did

not even have the assignment of hearing Parsi Matrimonial

matters at the relevant time. She submitted that the

assignment for hearing Parsi Matrimonial Suits was with Justice

H. Suresh and not Justice Guttal. She submitted that no hearing

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infact took place in the Suit before Justice Guttal on 8 th

December 1987 and that the only hearing that took place on 8 th

December 1987 was before Justice H. Suresh which was in the

captioned Suit.

8. Ms. Dubash submitted that she had become aware of

the said decree only when she had received certified copies of

the record and proceedings of the captioned Suit on 28 th July

2014. She pointed out that the captioned Notice of Motion was

filed on 20th October 2016, which was within a period of

limitation and therefore there was no delay in the filing of the

captioned Notice of Motion.

9. Ms. Dubash, in light of the above submissions pointed

out that the said Decree having clearly being obtained by a

fraud practiced upon this Court by the Respondent, was

necessarily required to be set aside. Basis this she submitted

that the Learned Judge had gravely erred in dismissing the said

Notice of Motion and this Appeal deserves to be allowed.

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Submissions of Mr. Karl Tamboly on behalf of the Respondent:

10. Mr. Tamboly, Learned Counsel, at the outset

submitted that the said Notice of Motion was not only grossly

barred by limitation but was also a completely abuse of law and

the process of this Hon’ble Court.

11. He submitted that the Appellant was not only well

aware of the said Decree but had actively participated

individually and through her then advocate, D.H. Nanavati and

Company in both formulating and obtaining the same. In

support of his contention, he highlighted the following instances

which he submitted made apparent the Appellant’s knowledge

and participation in obtaining the said Decree, namely, viz.

a. That between 30th October 1987 to 10th November 1987,

the Advocates for the Appellant were in constant talks for

settlement of the divorce petition as also the custody

proceedings, which were pending for custody of their

minor daughter.

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b. That the Respondent’s Advocates had, vide their letter

dated 8th December 1987, forwarded to the Appellant’s

Advocates, a sum of Rs.2,00,000/- with the clear

direction that the said funds were transferred to the

Appellant only after “the decree for divorce is

pronounced”.

c. That the second written statement was duly affirmed by

the Appellant before an officer of this Court after receipt

of the funds by her Advocate and the same specifically

Viz.

“2.The Defendant further states that a consent order has

been agreed to be obtained between the parties hereto in

the custody petitions in respect of minor ****.

3. In the Premises, the Defendant submits to a decree in

terms of prayer (a) of the plaint solely on the ground of

desertion” (name of the daughter redacted)

d. That the Respondent’s Advocates, by their letter dated 8 th

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December 1987 specifically recorded that since the

divorce decree had been pronounced, the funds could be

released to the Appellant and specifically sought the

Appellant’s confirmation that the Appellant had no

outstanding claims against the Respondent.

e. That the Appellant’s advocate then issued a receipt dated

8th December 1987 to the Advocates for the Respondent

acknowledging receipt of the sum of Rs.2,00,000/- from

the Respondent.

f. That the Appellant’s Advocate vide the letter dated 9 th

December 1987 specifically recorded that ‘ only a divorce

would be accorded to your client, without a contest on a

settlement in the minor’s petition’.

g. That the Respondent’s Advocate, vide a praecipe dated 8 th

December 1987, lodged the draft decree for divorce with

the Registrar, Parsi Chief Matrimonial Court in accordance

with the then existing Rule 300(1) and (2) of the Bombay

High Court (Original Side) Rules, 1980 (“Original Side

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Rules”).

h. That the Appellant’s Advocates as per Rule 300 (2) of the

Original Side Rules made handwritten

corrections/suggestions to the draft decree, lodged by the

Respondent’s Advocates and even appended his signature

to the same thus endorsing his approval to the final

decree to be issued by the Court.

i. That the Appellant’s then Advocate had himself on 9 th

February 1989 applied for a certified copy of the said

Decree.

j. That even in the praecipe dated 18 th July, 2014, the

Appellant had sought a certified copy of the judgment and

divorce decree which evinced her knowledge of the same.

He submitted that considering the above, it was inconceivable

and unconscionable for the Appellant to now contend that she

was not aware of the said Decree or that the same was obtained

fraudulently. He thus submitted that the Appellant’s conduct was

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patently mala fide and totally dishonest.

12. Mr. Tamboly then on the aspect of delay submitted

that the said Decree was dated 8 th December 1987 whereas the

said Notice of Motion had been filed approximately 28 years

after the date of the said Decree. Placing reliance upon Articles

59 and 137 in the Schedule to the Limitation Act, 1963, he

pointed out that the time limit to file an application against a

decree of divorce was three years from the date of which the

party was made aware of the said decree. He pointed out that in

the present case, there could be no manner of doubt that the

Appellant was aware of the said decree in the year 1987 and,

therefore, the said Notice of Motion was grossly barred by

limitation.

13. He then submitted that in the alternative and even on

the assumption that the Appellant was not aware of the divorce

decree in the year 1987, limitation would commence from 1989

when the Appellant’s advocate D.H. Nanavati and Company had

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applied for a certified copy of the said divorce decree. Basis this,

he submitted that the Learned Judge had correctly held that the

said Notice of Motion was grossly barred by limitation.

14. Mr. Tamboly then pointed out that not a single cogent

reason had been forthcoming by the Appellant to condone the

delay of 28 years and 288 days. He submitted that the reason

for delay given by the Appellant in her Affidavit in Rejoinder to

the Notice of Motion was that the Appellant suffered from

various health ailments, owing to which she was unable to take

stock of the divorce proceedings. He submitted that this reason

was also patently false since (i) all the alleged ailments, which

the Appellant claimed to have been suffering from, were only

from the year 2012 onwards (ii) there was no explanation

whatsoever as to why the Appellant had not been taken any

steps prior to that and (iii) that the Appellant was pursuing

three separate Writ Petitions between the years 1999 to 2013 all

filed in this Court against her erstwhile employer. He therefore

submitted that there was no stateable much less cogent reason

as to why the Appellant could not have taken steps earlier. He

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submitted that it was clear that the Appellant had taken out the

said Notice of Motion for malafide reasons and only to extract

monies from the Respondent.

15. Mr. Tamboly then submitted that after being granted

a decree of divorce in the year 1987, the Respondent had

remarried in the year 1988 and had a son from the second

marriage, who was now about 31 years old. He submitted that if

this Court was to accept the Appellant’s contention and set aside

the decree of divorce granted in the year 1987 great harm and

prejudice would be caused not only to the Respondent, but also

to his wife and son. He, therefore, submitted that the question

of today interfering with the decree of divorce, that was passed

in the year 1987, did not arise.

16. Mr. Tamboly then in support of his contention that the

party aggrieved by the invalidity of any order has to approach

the Court for a declaration that such order against such party

was inoperative and/or not binding upon such party, within

prescribed period of limitation, placed reliance upon the

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judgements of the Hon’ble Supreme Court in the cases of Sabitri

Senapati Vs. Judge Family Court, Cuttak1, Sneh Gupta Vs. Devi

Sarup & Ors.2 and State of Rajasthan & Ors. Vs. D. R. Laxmi &

Ors.3 and pointed out that even in cases where an order may

be void, if the party does not approach the Court within

reasonable time, which is always a question of fact and have the

order invalidated, acquiesced or waived, the discretion of the

Court has to be exercised in a reasonable manner. He thus

submitted that in the present case, he submitted that even if

the contention of the Appellant was to be accepted that the said

Decree was void, the fact that the Appellant had not taken any

steps for over 28 years, despite having knowledge of the said

decree, the Appellant was now estopped from assailing the

same in any manner.

17. He then took pains to point out that though the

Appellant had herself in the praecipe dated 18 th July 2014

specifically sought a copy of the said judgement and decree and

1 2003 SCC Online Ori 86

2 (2009) 6 SCC 194
3 (1996) 6 SCC 445

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recorded that she was unable to recall the date of the decree

was evidence enough of her knowledge of the same. He thus

submitted that the Appellant’s contention that she had become

aware of the said Decree only after receiving certified copies

records and proceedings in captioned Suit was patently false. He

pointed out that as per the judgements of the Hon’ble Supreme

Court in the cases of Basawaraj & Ors. Vs. The Special Land

Acquisition Officer4, Warlu Vs. Gangotribai5 and Pundik Jalam

Patil Vs. Executive Jalgaon Medium Project6, sufficient cause for

seeking condonation of delay in filing an application was a

mandatory requirement at law which the Appellant in the

present case had failed to demonstrate.

18. Mr. Tamboly then placing reliance upon a judgment of

the Hon’ble Supreme Court in the case of Byram Pestonji

Gariwala Vs. Union of India & Ors. 7 submitted that the

relationship between a counsel and his party was that of a

principal and agent. He submitted that therefore a counsel had

4 (2013) 14 SCC 81
5 1995 Supp (1) SCC 37
6 (2008) 17 SCC 448
7 (1992) 1 SCC 31

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the freedom to contract on behalf of his client since the counsel

had a vested authority. In this context, he pointed out that the

Appellant’s then advocate D. N. Nanavati & Company had in fact

under the provisions of Rule 300 of the Bombay High Court

Rules made handwritten corrections to the draft decree and also

appended his signature on 25 th January, 1998 signifying his

consent to the said Decree. He therefore submitted that it was

now not open for the Appellant to contend that the said decree

was passed either fraudulently or without the consent of the

Appellant.

19. Mr. Tamboly then submitted that the Appellant’s

contention with regard to the fact that the Learned Judge i.e.

Justice Guttal who passed the Decree never had the assignment

of Parsi Matrimonial Cases was also patently incorrect. He

pointed out that the assignment for Parsi Matrimonial Matters

was infact with Justice Guttal whereas the assignment for

custody and guardianship matters under Guardians and Wards

Act, 1890 was with Justice H. Suresh. He submitted that the

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Appellant’s contention that the divorce decree was fraudulent

and that the divorce proceedings were heard by Justice H.

Suresh was incorrect and unfounded.

20. He then submitted that the Appellant had attempted

to mislead this Hon’ble Court and had wrongly contended that

she had never appeared before Justice Guttal, and that the

Respondent had fraudulently planted the divorce decree. He

pointed out that the Parsi Suit Register specifically noted that

the Judge, who had disposed of the matter, was Justice Guttal

and this fact was also recorded by the Learned Judge in the

Impugned Order. Thus, the contention that the Decree was

passed by a Learned Judge who did not have the assignment

was patently false and misleading.

21. Mr. Tamboly then submitted that the Appellant was

guilty of suppression and falsification of facts and had not

approached this Court with clean hands. In support of his

contention, he first submitted that the Appellant had

intentionally suppressed the second written statement, since the

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same specifically recorded the Appellant’s consent for the grant

of decree of divorce to the Respondent on the ground of

desertion by the Appellant. He pointed out that it was only when

the Respondent brought the second written statement on record

in the Affidavit in Reply to the said Notice of Motion that the

Appellant, had for the first time denied, having declared any

such written statement in her Affidavit in Rejoinder to the said

Notice of Motion.

22. He then submitted that another patently false case

pleaded by the Appellant was that she has been removed from

her matrimonial home “Roxana”. He pointed out that the

Appellant had on her own admission never resided at “Roxana”,

which fact found mention in her first Written Statement dated

7th December 1987, wherein the Appellant admitted that

subsequent to her marriage, she continued to stay at Cusrow

Baug and therefore the Appellant’s contention taken for the first

time that the Respondent had thrown out the Appellant and his

then minor daughter was entirely false and incorrect case

pleaded. Mr. Tamboly thus placing reliance upon the judgements

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of the Hon’ble Supreme court in the cases of S. P.

Chengalvaraya Naidu (Dead) by LRs Vs. Jaganath (Dead) by LRs

& Ors.8 and Ramjas Foundation & Anr. Vs. Union of India & Ors. 9

submitted that a party, who does not approach the Court with

clean hands, is not entitled to be heard and can be summarily

thrown out at any stage of the proceedings. Basis this, he

submitted that the present Appeal deserves to be dismissed

with costs.

Reasons and Conclusions

23. We have heard the Appellant in person at length as

also the learned counsel for the Respondent and after giving our

careful consideration to the submissions advanced as also the

documents upon which reliance was placed and the case laws

cited, we find that filing of the said Notice of Motion is as

misconceived as it is unfortunate. We therefore have no

hesitation in dismissing the said Appeal for the following

reasons, viz.

8 (1994) 1 SCC 1
9 (2010) 14 SCC 38

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A. In our view, there can be no manner of doubt that the

Appellant was aware of the passing of the said Decree. We

say so because, viz.

i. Payment of the sum of Rs.2,00,000/- to the Appellant

was clearly contingent to the Appellant consenting to a

Decree for divorce as is clear from the letter dated 8 th

December, 1987 addressed by the Respondent’s

Advocates to the Appellant’s Advocates.

ii. The Respondents advocates by subsequent letter

dated 8th December, 1987 then specifically recorded

that since the decree of divorce had been pronounced,

the funds could be released to the Appellant and

specifically sought the Appellant’s confirmation that

the Appellant did not have any outstanding claims

against the Respondent.

iii. The Appellant’s advocates issued a receipt dated 8 th

December, 1987 acknowledging receipt of the said

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sum of Rs.2,00,000/-.

iv. The Appellant’s advocates had in accordance with the

provisions of the Bombay High Court Rules made

corrections in hand to the draft decree lodged with the

Registrar of the Parsi Chief Matrimonial Court and

initialed the said corrections and even signed on the

same endorsing his approval to the final decree to be

issued by the Court.

v. The Appellant’s advocates had on 9th February 1989

applied for a certified copy of the said decree.

vi. The Appellant herself in the praecipe dated 18th July

2014 had specifically sought copies of the judgment

and decree passed in the above Suit and recorded that

she was unable to recollect the date of passing of the

decree.

Thus, from the aforesaid facts, there can be no manner of

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doubt that the Appellant was aware of the said Decree,

despite which, the Appellant had chosen not to challenge it

for a period of over 28 long years.

B. We must also note that though the Appellant has contended

that the second written statement was a fraudulent

document which was not signed by her, we are unable to

accept this contention since (i) the Appellant herself

curiously did not make any mention and/or raise any

grievance in respect of the second written statement in her

Affidavit in support of the Notice of Motion (ii) disowned the

same for the first time only when the Respondent produced

the same along with his Affidavit in Reply to the Notice of

Motion (iii) also a perusal of the said written statement

makes clear that the same was affirmed before an officer of

this Court (iv) that the second written statement when

viewed with the context of the events that transpired in

quick succession in between 7th and 9th December does not

at all support the Appellant’s contention that the same was

fraudulent and she did not execute the same. Similarly, the

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letters dated 8th December, 1987 upon which reliance was

placed by the Appellant to suggest that the Appellant was

not willing to consent to a divorce would also have to be

viewed in the context of the other contemporaneous

documents and events which took place between 7 th

December and 9th December 1987 also do not support the

Appellant’s contention that the decree of divorce was not

validly passed.

C. Also, the contention of the Appellant that Justice Guttal who

passed the said Decree never had the assignment of

hearing Parsi Matrimonial Suits is entirely without merit and

basis. We must note that the Learned Judge who passed the

Impugned Order personally examined the Paris Suit

Register, after which he held as follows, viz.

“15. I have also considered the Parsi Suit Register from Suit

Nos.23/1986 (9.10.1986) until 13/1977 (29.3.1997). It is

noted therein by the then Parsi Registrar that His Lordship

Justice P.M. Guttal (as he then was) was the Judge who

disposed the matter and the date of disposal was 8th

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December 1987. In fact, the register also shows that Justice

Guttal was the Judge hearing the Parsi Matrimonial matters

even on 7th December 1987 and also on 8th December

1987. The photocopy of the relevant pages of the register is

taken on record and marked ‘X’ for identification.”

Thus, there can be no doubt that Justice Guttal infact had

the said assignment. However, what is crucial to note is that

the Appellant contention that Justice Guttal did not have the

assignment based on absolutely no material and it is purely

on the Appellant’s ipse dixit. Thus, given the clear finding of

the Learned Judge, we have no occasion much less basis to

interfere with the same.

D. We also find no merit in the contention of the Appellant that

since the judgment upon which the said Decree was passed

is unavailable, the said Decree has been fraudulently

passed. However, given the events noted above, we concur

with the findings of the Learned Judge in the Impugned

Order where the Learned Judge has specifically held as

follows, viz.,

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“17. I must also add, I don’t find any order dated 8 th

December 1987 of Justice Guttal in the records and
proceedings. Perhaps it is misplaced. An order can be
misplaced only if it was there and I would believe it was there,
or else the registry would not have drawn up the decree ”.

Furthermore, given that we have already held that the

Appellant was well aware of the passing of the said decree

in the year 1987 itself, mere absence of the said judgment

today from the records which are over thirty years old

would not invalidate the said decree. We must note and as

held by the Hon’ble Supreme Court in the case of D. R.

Laxmi (supra), upon which reliance was placed by the

Learned Counsel for the Respondent that “though the order

may be void, if the party does not approach the Court

within reasonable time, which is always a question of fact

and have the order invalidated acquiesced or waived, the

discretion of the Court has to be exercised in a reasonable

manner.” Thus, we have no hesitation in holding that mere

absence of the judgement in the facts of the present case

and given the conduct of the Parties, would not invalidate

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the said Decree.

E. Additionally, another factor which we are bound to consider

is the inordinate passage of time since the said Decree was

passed. We are unable to accept that the Appellant

contention that she never wanted a divorce and wanted

restitution of conjugal rights. The Appellant’s conduct

certainly does not support this contention. The Appellant’s

conduct infact supports the stand taken by the Appellant in

the second written statement. The bonafides and conduct of

the Appellant does not inspire the slightest confidence in us.

It is inconceivable that the Appellant would not have known

of the intervening events, namely the remarriage of the

Respondent and the fact that the Respondent today has a

31 years old son from his second marriage. We are also

informed that the daughter of the Appellant and the

Respondent is today 41 years old and lives overseas and

has a family of her own. Thus, for the Appellant to state

that she did not want a divorce but wanted restitution of

conjugal rights is plainly unstatable. Had there been the

slightest genuineness and sincerity in the Appellant’s

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contention that she wanted restitution of conjugal rights or

to save her marriage, the Appellant would not have done

absolutely nothing for over three decades. Sadly, it is only

the Appellant who has not moved on. It is thus that we

have noted above that the filing of the present Notice of

Motion is as misconceived as it is unfortunate. It is for these

reasons that we are not imposing costs upon the Appellant

since we find that in the facts of the present case, the need

for exercising compassion would outway the object sought

to be achieved by the grant of costs.

24. Before parting with this order, we must note that the

Appellant had before the commencement of the hearing of the

present Appeal made a request that the names of the parties

not be disclosed in the judgment of this Court. We had vide our

order dated 2nd February, 2024 made clear that such occasion

may arise only after the completion of the hearing when the

Court prepares the judgment. However, today we find no reason

why the names of the parties to the Appeal should be redacted

and hence have not done so.

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25. Hence, for the reasons stated above, the Appeal is

dismissed.

26. In view of dismissal of the captioned Appeal, all

pending Applications are accordingly disposed of.

(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)

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