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2017 DIGILAW 395 (GAU)

JAHANARA BEGUM v. RUSTOM ALI BHUYAN

2017-03-29

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. M.A. Sheikh, the learned counsel for the petitioner. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has assailed the order dated 03.10.2016 passed by the Learned Principal Judge, Family Court, Guwahati, in Misc.(J) Case No. 45/2013. By the said order, the said learned court dismissed the application filed under section 5 of the Limitation Act, 1963 for condoning 5843 (i.e. 16 years 3 days) delay in filing a suit seeking declaration of talaknama/talak dated 23.04.1994 by the Respondent against the petitioner as illegal and un-operational in law and for a decree declaring the marital status of the petitioner as the wife of the respondent. 3. The learned counsel for the petitioner strenuously argued the matter at quite some length and projected that the marriage between the petitioner and the respondent was solemnized on 18.02.1994 and consummated. However, by issuing a talaknama dated 23.04.1994, the respondent made an attempt to end their relationship, which was received by the petitioner on 04.06.1994 by registered post. Thereafter, the petitioner filed a suit, being T.S. No. 382/94, inter-alia, seeking somewhat similar prayer as in the present suit. The said suit was dismissed by the learned Civil Judge (Junior Division) No.2, Guwahati by judgment and decree dated 21.06.2011. The dismissal of suit was challenged by filing Title Appeal No. 61/2011, which was also dismissed by the learned Civil Judge (Senior Division) No.3, Guwahati by first appellate judgment and decree dated 22.01.2013. This is referred to as “the first round of litigation”, which had arisen out of Title Suit No. 382/94. 4. The petitioner thereafter filed F.C.(Crl.) Case No. 67/94, under section 125 Cr.P.C., claiming maintenance, but the same was dismissed by the learned Principal Judge, Family Court, Guwahati by judgment and order dated 05.09.1998. The said judgment was set aside by this Court by judgment and order dated 05.09.1998 passed in Crl. Rev. No. 446/98 and the matter was remanded back for fresh decision. Thereafter, by judgment and order dated 24.07.2000 passed by the said learned Court, the F.C.(Crl.) Case No. 67/94, under section 125 Cr.P.C. was partially allowed by dismissing the claim for maintenance of the petitioner on the ground of the above referred talaknama, but the minor son of the parties was allowed maintenance @ Rs.450/- per month w.e.f. 10.07.1996. Thereafter, by judgment and order dated 24.07.2000 passed by the said learned Court, the F.C.(Crl.) Case No. 67/94, under section 125 Cr.P.C. was partially allowed by dismissing the claim for maintenance of the petitioner on the ground of the above referred talaknama, but the minor son of the parties was allowed maintenance @ Rs.450/- per month w.e.f. 10.07.1996. The said judgment of the learned Family Court was challenged by the petitioner by filing Mat. Appeal No. 12/2000 before this Court, which was dismissed by judgment and order dated 02.11.2000. The said order was challenged before the Hon’ble Supreme Court of India by filing S.L.P.(Crl.) 590/2001 (Civil Appeal No. 1222/01) and the said Hon’ble Court by its order dated 03.12.2001, set aside the orders passed by this Court as well as that of the learned Principal Judge, Family Court, Guwahati and remanded the matter back for fresh decision. In light of the said judgment passed by the Hon’ble Apex Court, the petitioner filed petition No. 276/03 before the Court of Principal Judge, Family Court, Guwahati, which was allowed by judgment and order dated 30.09.2003 thereby awarding the petitioner a maintenance of Rs.500/- per month w.e.f. 23.03.2003. Thesis referred to as “the second round of litigation". 5. Thereafter, the petitioner filed another application in on 04.11.2003, claiming maintenance from 29.04.1994 and for recovery of arrear amount of Rs.52,917.50/- for the period of 8 years 9 months 25 day from 29.04.1994 to 23.03.2003, which is still pending for adjudication before the Court of Principal Judge, Family Court, Guwahati. This is referred as the third round of litigation. 6. The petitioner then filed Misc. Case No. 18/2003 for enhancement of maintenance of her and her son from Rs.1,600/- p.m. to Rs.4,500/- p.m. The said Misc. Case was rejected by the learned Principal Judge, Family Court, Guwahati by an order dated 28.07.2008. The said order has been challenged before this Court by filing Criminal Revision before this Court on 09.06.2009 under Sl. No. 117850, which is said to be pending till date. This is referred to as “the fourth round of litigation”. 7. Thereafter, the petitioner instituted a fresh proceeding, before the learned Principal Judge, Family Court, Guwahati, being Misc.(J) Case No. 45/2013 for condoning the delay in filing the case with prayer for reliefs as stated hereinbefore. No. 117850, which is said to be pending till date. This is referred to as “the fourth round of litigation”. 7. Thereafter, the petitioner instituted a fresh proceeding, before the learned Principal Judge, Family Court, Guwahati, being Misc.(J) Case No. 45/2013 for condoning the delay in filing the case with prayer for reliefs as stated hereinbefore. In the impugned order dated 03.10.2016, by which the said application for condonation of delay was dismissed, the said learned Court has recorded a categorical finding that Point No. II for determination in F.C. (Crl.) Case No. 67/1994 was “Whether the respondent (Md. Rustom Bhuyan) divorced his wife on 23.04.94?”, and that the decision thereon is to the effect that “the talaqnama was executed as per the Principle of Mohamedan Law.” Hence, the subject matter sought to be agitated appears to be the issue involved in F.C. (Crl.) Case No. 67/1994. Therefore, it is not open for the petitioner to argue that prior to filing of the present case, she was not aware of her rights. For the sake of convenience, this proceeding is referred to as “the fifth round of litigation”. 8. As regards the impugned order dated 03.10.2016, passed by the said learned court, this court is of the opinion that application under section 5 of the Limitation Act is applicable on any appeal or application, which is apparent from the plain language used in the said section. The provisions of section 5 of the Limitation Act, 1963 cannot be invoked for filing an original suit or proceeding in view of the provisions of sub-section (1) of section 3 of the Limitation Act. The decree, as prayed for by the petitioner in this "fifth round of litigation" would squarely fall within the scope of Article 58 of the Schedule appended to the Limitation Act, 1963. As per the opinion of this Court, any suit or proceeding seeking declaration for ought to have been instituted within a period of three years, with exclusion of time permissible, if any, under the relevant sections of Part-III of the Limitation Act, 1963. 9. Under the circumstances, although for the different reasons, this Court does not find any ground to interfere with the impugned order. The said impugned order is not found to be vitiated by any jurisdictional error whatsoever. There is no infirmity in the impugned order. 9. Under the circumstances, although for the different reasons, this Court does not find any ground to interfere with the impugned order. The said impugned order is not found to be vitiated by any jurisdictional error whatsoever. There is no infirmity in the impugned order. Hence, for the foregoing reasons, the present revision is found to be without any merit and the same is dismissed. There shall be no order as to cost. 10. This is an appropriate time to remember the legal maxim of “vigilantibus, et non dormentibus, jura subveniunt” – meaning thereby that law comes to the aid of the vigilant and not the slumberbug.