Nasib Kaur Vs. Jarnail Singh - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 3. it has been contended by the counsel for the appellant that the respondent cannot take advantage of his own wrong inasmuch as he failed to comply with the decree of restitution of conjugal rights despite the appellant having filed an execution application for executing the decree. section 23(1)(a) of the act provides that in any proceeding under the act, whether defended or not, if the court is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his/her wrong or disability for the purpose of such relief. singh raj s/o dasondhi ram, air 1977 punjab & haryana, 167. the learned judges of the full bench held :the ground that the spouse against whom the decree for restitution of conjugal rights was obtained failed to comply with the decree cannot be taken for refusing the relief of dissolution of marriage on the ground that the spouse is taking advantage of his or her own wrong. ' in view of the binding precedent, i am of the view that simply because respondent had failed to comply with the decree for restitution of conjugal rights by itself would not amount to respondent taking advantage of his own wrong as provided under section 23(1)(a) of the act.v.k. jhanji, j.1. this appeal is by wife, nasib kaur directed against judgment dated 2.11.1987 of the additional district judge, faridkot, whereby marriage has been ordered to be dissolved by a decree of divorce in accordance with the provisions of section 13(l-a)(ii) of the hindu marriage act, 1955.2. in brief, the facts are that marriage between the parties was solemnised about 33 years ago at the village bagha purana, tehsil moga, district faridkot. appellant filed petition no. 18-3/84 on 12.1.1984 under section 9 of the hindu marriage act (in short the act) against the respondent and a decree was passed by the sub-judge lst class, moga,on 8.1.1986 in her favour. on the expiry of one year of the passing of the decree, respondent filed a petition for dissolution of marriage by decree of divorce under section 13(l-a)(ii) of the act on the ground that there had been no resumption of cohabitation between the parties to the marriage for a period of one year after the passing of the decree for restitution of conjugal rights. on contest by the appellant, petition filed by the respondent has been allowed and in consequence thereof, the marriage between the parties has been ordered to be dissolved. hence, the present appeal by the wife.3. it has been contended by the counsel for the appellant that the respondent cannot take advantage of his own wrong inasmuch as he failed to comply with the decree of restitution of conjugal rights despite the appellant having filed an execution application for executing the decree. he contended that by levelling false allegation that the appellant is suffering from mental disorder, the respondent has become disentitled to the decree of divorce. lastly he contended that the petition filed by the respondent under section 13 of the act was pre-mature inasmuch as decree under section 9 was granted in favour of the appellant on 8.1.1986, whereas petition under section 13 has been filed on 8.1.1987. according to the counsel, petition was filed before the expiry of period of one year. in answer to these submissions, counsel for the respondent has contended that the words 'wrong' or 'disability' referred to in section 23(l)(a) when read with section 13(1-a) mean a wrong or disability other than a mere disinclination to agree to an offer or reunion in pursuance of decree for restitution of conjugal rights. he also contended that allegations levelled against the appellant in regard to her suffering from mental disorder were withdrawn and therefore, that argument is not available to the counsel for the appellant. he contended that counsel for the appellant is not correct in saying that petition was filed before the expiry of one year from the date of passing of the decree.4. after hearing the counsel for the parties and going through the record, i am of the view that there is no merit in the appeal. section 13(l-a)(i) of the act provides that either party to a marriage, whether solemnised before or after the commencement of the act, may present a petition for dissolution of marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties to the marriage for a period of one year or upwards, after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties. section 23(1)(a) of the act provides that in any proceeding under the act, whether defended or not, if the court is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his/her wrong or disability for the purpose of such relief. these two sections came up for consideration before a full bench of this court in stnt. bimla devi d/o bakhtawar singh v. singh raj s/o dasondhi ram, air 1977 punjab & haryana, 167. the learned judges of the full bench held :'the ground that the spouse against whom the decree for restitution of conjugal rights was obtained failed to comply with the decree cannot be taken for refusing the relief of dissolution of marriage on the ground that the spouse is taking advantage of his or her own wrong. inspite of the finding that the spouse against whom decree for restitution of conjugal rights has been passed, left the company of the petitioner under section 9 of the act without reasonable cause for the specified period, the legislature thought fit to entitle the spouse against whom such a finding has been given to apply for divorce under section 13(l-a)(ii) of the act; the said relief cannot be made non-existent by applying the provisions of section 23(l)(a) of the act on the ground of non-compliance of a decree of restitution of conjugal rights. such an interpretation will frustrate the very purpose of the amending act of 1964.8. from what has been stated above, it appears that the provisions of section 23(1 )(a) of the act cannot be invoked to refuse the relief under section 13(l-a)(ii) of the act on the ground of non-compliance of a decree of restitution of conjugal rights where there has not been restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of decree for restitution of conjugal rights in proceedings in which they were parties the contention of the learned counsel for the respondent that if the provisions of section 23(l)(a) are interpreted in the manner as suggested above, the provisions of section 23(1)(a) will become null and void and will not be applicable to any proceedings, is without any merit. as would be seen, in proceedings under section 9 for restitution of conjugal rights, under section 10 for judicial separation, under section 12 of the act and so also under section 13(1), the provisions of section 23, wherever they are applicable on the facts proved on the record of the case, will be attracted. it is only to the limited extent in proceedings of divorce under section 13(1-a), where the divorce is claimed by either of the parties on the ground that there has been no resumption of cohabitation after the passing of a decree for judicial separation or that there has been no restitution of conjugal rights after a period of one year or upwards after the passing of the decree of conjugal rights, that the said provisions cannot be invoked on the ground of non- compliance with the decree passed so as to hold that the said act of non- compliance is in any way taking advantage of his or her own wrong.'in view of the binding precedent, i am of the view that simply because respondent had failed to comply with the decree for restitution of conjugal rights by itself would not amount to respondent taking advantage of his own wrong as provided under section 23(1)(a) of the act.5. it is true that respondent in his petition under section 13 of the act levelled an allegation that the appellant is suffering from mental disorder, but this allega- tion was not pressed and no finding was invited on this allegation. there is no evidence on record to show that by levelling this allegation, respondent made it impossible for the appellant to seek compliance of the decree. as regards the contention that petition under section 13 deserved to be dismissed being pre- mature on the ground that decree was passed on 8.1.1986 whereas the petition had been filed on 8.1.1987, i.e. before the expiry of one year, suffice it to say, the period of one year or upwards as provided under section 13(l-a)(i) has to be reckoned from the date of granting of the decree. in this case, decree was granted on 8.1.1986 and taking one year from this date, the period of one year would come to expire on 7.1.1987 and the petition having been filed on 8.1.1987 was maintainable, having been filed after one year or upwards after the final termina- tion of the proceedings for restitution of conjugal rights.6. consequently, this appeal being without any merit, is to be dismissed. it is so ordered.