JANG BAHADUR SYAL v. MUKTA SYAL — 1985 DIGILAW 464 (DEL)

S. B. WAD ( 1 ) THIS civil revision is filed against the order of the A. D. J. dated 16-4-85, setting aside the ex parte decree passed against the respondent on imposing cost of Rs. 300. 00 The appellam, husband had filed a petition for divorce unaer S. 13 (l) (a) (iii) of the Hindu Marriage Act on the ground of insanity of the respondent wife and on the ground of cruelty. The oetition was listed for evidence between 23-8-84 to 29-8-84. Neither the wife nor her counsel were present. On 28-8-84 the evidence of the husband was recorded and a decree for ex parte divorce on the ground of cruelty was passed by the trial court on 29-8-84. The wife filed an application for setting aside the ex parte decree alleging that she as well as her Advocate were ill during the period. She also produced medical evidence in support of that. The learned A. D. J. accepted the application, set aside the ex parte decree and listed the petition again for the evidence of the wife. ( 2 ) THE counsel for the petitioner has submitted that the provisions of O. 9, R. 13 Civil Procedure Code. are not applicable to the petitions under the Hindu Marriage Act. If an ex parte decree is passed, the only remedy for the aggrieved party is to prefer an appeal under S. 28 of the Hindu Marriage Act. According to him S. 28 of the said Act is a complete Code in itself, regarding the procedure. He then contended that as S. 28 of the Act provides a special procedure in a special Act, the provisions of Civil Procedure Code. as envisaged by S. 21 of the Act cannot be invoked. The counsel further submits that the concept of ex parte decree is a misnomer in petitions under the Hindu Marriage Act. S. 23 of the Act casts a special duty on the Court in the matrimonial matter to pronounce a decree on the grounds mentioned in the Act whether the matter is defended by the respondent or not. In other words the submission is that the presence of respondent is immaterial in such proceedings as the Court has a special duty to satisfy itself that valid ground is made out by the petitioner for granting a decree. In other words the submission is that the presence of respondent is immaterial in such proceedings as the Court has a special duty to satisfy itself that valid ground is made out by the petitioner for granting a decree. According to the counsel S. 28 of the Act has undergone material changes with the amendment of Hindu Marriage Act by Act 68 of 1976 making the procedure under the Hindu Marriage Act fully exhaustive. ( 3 ) THE counsel for the respondent has contested these submissions. His preliminary objection is that the question regarding the application of O. 9, R. 13, Civil Procedure Code. was not raised before the trial court and that the petitioner cannot be permitted to raise the same in this court. For effective disposal of the said question, S. 21, S. 23 and S. 28 will have to be interpreted. There is no direct judgment of this court on this question. There appears to be some conflict of opinion in the decisions of some High Courts. Since the petitioner raises the question of interpretation of the provisions of the Hindu Marriage Act, I allow the petitioner to raise the point (Raghubans Narain v. The U. P. Govt. , AIR 1967 SC 465 ). ( 4 ) THE question of applicability of O. IX, R. 13 to a proceeding under the Hindu Marriage Act has to be examined in depth as there is no decision of this Court. Besides, there is conflict of opinion in the decisions rendered by various High Courts. In Rishi Dev Anand v. Devinder Kaur, (1985) 1 D M C, 63 : (AIR 1985 Delhi 40) Charanjit Talwar, J. of this Court held that an application for pendente lite maintenance under S. 24 of the Hindu Marriage Act can be filed by the wife during the pendency of her application for setting aside an ex parte decree under O. IX, R. 13, Civil Procedure Code. The learned Judge observed : "under the Act no provision has been made for setting aside the ex parte decree. Necessarily, therefore, recourse has to be taken to the provisions of the Code of Civil Procedure for this purpose. If a spouse has to make an application after a decree under the Act has been passed, provisions of O. 9, R. 13 of the Code in view of S. 21 of the Act are attracted. Necessarily, therefore, recourse has to be taken to the provisions of the Code of Civil Procedure for this purpose. If a spouse has to make an application after a decree under the Act has been passed, provisions of O. 9, R. 13 of the Code in view of S. 21 of the Act are attracted. "in Upendra Kumar v. Mrs. Harpriya Kumar, 1979 Hindu LR 68 (Delhi) the question was whether the husband could file a petition for a decree of restitution of conjugal rights under S. 9 of the Act at Delhi on the ground that the husband s permanent residence was at Delhi and the wife was bound by law to discharge her matrimonial obligation qua the husband at Delhi. Delhi was not the place of marriage or the matrimonial home or where the wife was residing. Prakash Narain, J. (as he then was) held that Delhi Court had no jurisdiction as S. 4 and S. 20 of the Civil Procedure Code do not supplement or supplant S. 19 of the Hindu Marriage Act. The learned Judge observed that S. 21 of the Hindu Marriage Act has rightly used the words "all proceedings under this Act shall be regulated" so as to make only the procedural provisions of the Civil Procedure Code applicable to the proceedings under Hindu Marriage Act but not the substantive provisions like the provisions regarding jurisdiction. But the question of application of O. 9, R. 13, Civil Procedure Code. to proceedings under the Hindu Marriage Act was directly considered by Bombay High Court in Sunanda v. Gundopant, AIR 1961 Bom 225. The learned single Judge, Kotwal, J. , interpreted the provisions of S. 21 of the Hindu Marriage Act and held that the proceedings under the Act must be regulated by the Code of Civil Procedure and, therefore, O. 9, R. 13 would apply. The learned Judge further held that the framing of the rules by the High Court under S. 21 of the Act is not a condition precedent. The learned Judge also considered the effect of S. 23 and S. 28 of the Hindu Marriage Act and held that the provisions of these sections do not in any way affect the question of the applicability of the Civil Procedure Code to the proceedings under the Hindu Marriage Act. However, in Anjan Kumar Kataki v. Scot. The learned Judge also considered the effect of S. 23 and S. 28 of the Hindu Marriage Act and held that the provisions of these sections do not in any way affect the question of the applicability of the Civil Procedure Code to the proceedings under the Hindu Marriage Act. However, in Anjan Kumar Kataki v. Scot. Minakshi Sharma, AIR 1985 Gau 44 a single Judge of that Court, S. Haque, J. , held that O. 9, R. 13, Civil Procedure Code. was not applicable. After reading S. 21 and S. 28 (1) of the Hindu Marriage Act the learned Judge observed. "therefore the mandatory provisions of S. 28 (1) of the Hindu Marriage Act cannot be regulated by O. 9, R. 13 of the Civil Procedure Code. for setting aside an ex parte decree. All decrees made by the Court in any proceeding under the Hindu Marriage Act also include an ex parte decree. Therefore, only appeal will lie against an ex parte decree as laid down under the mandatory provisions of S. 28 (1) of the Hindu Marriage Act. An application under O. 9, R. 13, Civil Procedure Code. , for setting aside such ex parte decree, is not maintainable. "the question of application of O. 9, R. 13, Civil Procedure Code. was considered by the Division Bench of Punjab and Haryana High Court (1977) 79 Pun LR 754 by way of an appeal where the wife s application for setting aside ex parte decree under O. 9, R. 13 was rejected by the trial court. The respondent argued that O. 43, R. 1 (d) of the Civil Procedure Code. was not applicable to the matrimonial proceedings in view of S. 21 of the Hindu Marriage Act. The Division Bench held the important words are "as far as may be" and their use by the legislature clearly implies that penal provisions of Civil Procedure Code shall not be applicable to the proceedings under the Act. . . . . . . . . . . . . The matter is not res integra. In Smt. Manjit Kaur v. Gurdial Singh, AIR 1978 Punj and Har 150 decided by Chief Justice R. S. Narula it was held that provisions of 0. 9, Civil Procedure Code. did apply to the proceedings under the Act. . . . . . . . . . . . . The matter is not res integra. In Smt. Manjit Kaur v. Gurdial Singh, AIR 1978 Punj and Har 150 decided by Chief Justice R. S. Narula it was held that provisions of 0. 9, Civil Procedure Code. did apply to the proceedings under the Act. This implies that if an ex parte decree is passed it is open to trial court to set aside it and also it is open to the appellate court to correct the error of the learned trial court if the matter is before it in appeal. ( 5 ) WE may now note some other decisions where in spite of S. 21 of the Hindu Marriage Act provisions of Civil Procedure Code are made applicable. In Chander Prakash v. Sudesh Kumari, AIR 1971 Delhi 208 it was held that a decree of divorce granted by District Court when found erroneous on appeal can be substituted into one for judicial separation under 0. 7, Civil Procedure Code. In Tirukappa v. Kamalamma, AIR 1966 Mys 1 the Division Bench of Mysore High Court held that provisions of O. 9, Rr. 8 and 9 were applicable to proceedings under Hindu Marriage Act. So also O. 22, Civil Procedure Code was made applicable to situation where a party to a proceeding under Hindu Marriage Act dies. [see S. M. Pande v. Manohar, AIR 1971 Bom 183 ). ( 6 ) WE may now advert to some decisions where O. 9, R. 13, Civil Procedure Code. was held to be applicable in proceedings under other special Acts, such as Hindu Marriage Act. In Krishna Udayan v. Chinna Pillai, AIR 1948 Mad 416, pages 417 and 418 it was held that said provision of Civil Procedure Code was applicable to ex parte proceedings under Land Acquisition Act. Similarly, in Veeramachineni Seethiah v. Bode Venkatasubbiah, AIR 1949 Mad 675 page 681 it was held that said provisions were applicable to ex parte orders passed under the Companies Act. ( 7 ) TWO conclusions follow from the above cited cases. If there are large number of decisions holding number of provisions of Civil Procedure Code. applicable to proceedings under the Hindu Marriage Act, there is no reason why provisions of O. 9, R. 13 be not made applicable. S. 21 of the Hindu Marriage Act does not stand in the way. If there are large number of decisions holding number of provisions of Civil Procedure Code. applicable to proceedings under the Hindu Marriage Act, there is no reason why provisions of O. 9, R. 13 be not made applicable. S. 21 of the Hindu Marriage Act does not stand in the way. Secondly O. 9, R. 13 incorporates sound principle of the effective right of being heard and provides an immediate remedy in the trial court itself to put the defendant in a position in which he would have been if no ex parte decree was passed against him. The aggrieved defendant should not be driven to the appellate forum when the matter can be set right in the first court itself. This avoids multiplicity of proceedings and expenses. It is for this reason that O. 9, R. 13 has been made applicable in case of other special Acts. ( 8 ) BUT whatever doubts that were left in regard to application of Civil Procedure Code. to matrimonial proceedings under Hindu Marriage Act are now cleared by the decision of the Supreme Court delivered in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry, AIR 1981 SC 1143 . In that case the wife had filed a suit for maintenance at Elura (Andhra Pradesh) and the husband filed a petition for divorce at Udaipur (Rajasthan ). An application was moved in the Superme Court under S. 25 of the Civil Procedure Code. by the wife to transfer the Rajasthan Eroceedings to Eluru (Andhra Pradesh ). The husband objected to the transfer on the ground that S. 25, Civil Procedure Code. was not applicable in view of Ss. 21 and 21 (A) of Hindu Marriage Act, 1955. The submission of the husband was that only procedural provisions of Civil Procedure Code. could be made applicable to proceedings under Hindu Marriage Act. It was also contended that S. 21 (A) (iii) of the Hindu Marriage Act excludes application of Ss. 24 and 25, Civil Procedure Code. to such proceedings. The Supreme Court held that S. 21 does not make any distinction between the procedural and substantive provisions of Civil Procedure Code. The phrase "as far as may be" in S. 21 of the Hindu Marriage Act means and is intended. to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. The phrase "as far as may be" in S. 21 of the Hindu Marriage Act means and is intended. to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. The Supreme Court further held that irrespective of whether it is a procedural or a substantive provision, all provisions of the Civil Procedure Code. would be applicable unless they are inconsistent with any provisions of the Act. The Supreme Court also held that the doctrine of res judicata contained in S. 11 of the Code is a provision of substantive law but is still applicable to the proceedings under the Act. The Supreme Court then held that S. 21 (A) of Hindu Marriage Act does not exclude the power of transfer conferred upon the Supreme Court under S. 25 of the Civil Procedure Code. It is thus clear that the only consideration in regard to the application of the provisions of Civil Procedure Code. , including O. 9, R. 13, is whether the provisions in the two enactments are inconsistent or not. As regards O. 9, R. 13 there is no similar provision in the Hindu Marriage Act and, therefore, there is no difficulty in its application. ( 9 ) WE may note a few decisions where the provisions of the Civil Procedure Code. and Hindu Marriage Act were found to be inconsistent. In Ganga Devi v. Krushna Prasad, AIR 1967 Orissa 19 it was held that S. 141 of the Civil Procedure Code. would stand excluded as it would not be practicable to apply to the proceedings under the Act in view of S. 21. In Sou Ramkuvar v. Madanlal, (1977) 79 Bom LR 143 it was held that O. 23, R. 3 of Civil Procedure Code. , to pass a decree in accordance with the compromise between the parties, is not applicable under Hindu Marriage Act by the reason of provision of S. 23 ( 1) which lays down that the court has to be satisfied that one or other grounds for granting relief under the Act exists before it can acquire jurisdiction to grant that relief. There is also a duty which enjoins the court to see that there is no collusion between the parties. There is also a duty which enjoins the court to see that there is no collusion between the parties. A judgment of this court in Upendra Kumar (1979 Hindu LR 68) can also be explained on the ground that S. 19 of the Hindu Marriage Act exhaustively enumerates the considerations for determining the territorial jurisdiction and provisions of S. 20, Civil Procedure Code. are inconsistent with the said provisions of the Hindu Marriage Act. ( 10 ) WE may now advert to other submission of the petitioner. The counsel for the petitioner submits that there is no such thing as an ex parte decree in the matrimonial matter by virtue of the provisions of S. 23 of the Act. The counsel relies on the words "whether defended or not" appearing in S. 23 (1) of the Act. S. 23 (1) opens with the following sentence. "in any proceeding under this Act, whether defended or not, if the court is satisfied. "the counsel argues that the presence orthe defence of the defendant is not necessary in the matrimonial proceedings and the court is bound to pass a decree on merits in absence of both of them. In view of these provisions, the counsel argues that a decree under S. 23 cannot really be described as an ex parte decree. If it is so, O. 9, R. 13, Civil Procedure Code. has no application. This submission is based on misreading of the section. Each of the sub-sections of the said section casts a special duty on the Court to satisfy itself that the parties in the matrimonial proceedings are not exploited by means of a legal proceeding, to cause harm. Sub-cl. (a) of sub-sec. (1) obliges the court to see that the party is not taking the advantage of his own wrong. Similarly in Cl. (b) the court is obliged to see whether one party has connived or condoned the conduct and then wants to harass the other party. Similarly in each of the sub-sections a special duty is cast on the court. The reason for this provision is an anxiety of the Hindu Marriage Act to protect the institution of marriage and to see that the same is not destroyed or perverted by misconduct of either party. This duty cast on the court is further emphasized by the words "whether defended or not". The reason for this provision is an anxiety of the Hindu Marriage Act to protect the institution of marriage and to see that the same is not destroyed or perverted by misconduct of either party. This duty cast on the court is further emphasized by the words "whether defended or not". In other words the Court cannot say that the defendant has not raised any grounds of misconduct on the part of the petitioner. A decree passed in the absence of the defendant is still an ex parte decree and, therefore, O. 9, R. 13 is applicable. ( 11 ) ANOTHER submission of the counsel for the petitioner is that the words "all decrees" in S. 28 of the Act cover also ex parte decrees and, therefore, the only remedy open to an aggrieved party is to file an appeal under S. 28 of the Hindu Marriage Act. This submission is based on the judgment of the Gauhati High Court in Anjan Kumar s case. ( AIR 1985 Gau 44 ). With respect, it is difficult to agree with the reasoning of the learned single Judge of Gauhati High Court. Even under Civil Procedure Code an appeal lies against an ex parte decree under S. 96 of the Civil Procedure Code. Although there is a provision in O. 9, R. 13 for setting aside the ex parte decree. The scope of the appeal against the ex parte decree and an application for setting aside the ex parte order is well settled. The defendant may prefer to get the decree set aside under O. 9, R. 13. But if he does not want to do so, he can challenge the ex parte decree on merits in an appeal filed against such an order. It is also well established that if the defendant prefers to file an appeal he cannot pray for setting aside the ex parte order by showing justification for his absence. In the appeal he would be restricted only to the submissions on merits and no others. The submission of the counsel for the petitioner has no mprit and is, therefore, rejected. ( 12 ) ANOTHER submission of the counsel for the petitioner is that the decision of Bombay High Court in Sunanda s case (AIR 1961 Bom 225) is not a good law in view of the amendment of S. 28 of the Hindu Marriage Act. The submission of the counsel for the petitioner has no mprit and is, therefore, rejected. ( 12 ) ANOTHER submission of the counsel for the petitioner is that the decision of Bombay High Court in Sunanda s case (AIR 1961 Bom 225) is not a good law in view of the amendment of S. 28 of the Hindu Marriage Act. This submission has also no merit. S. 28 was amended in 1976 (Act No. 68 of 1976) only to clarify that the orders passed under Ss. 25 and 26 (which are permanent and not interim) are appealable orders, although they are not decrees in the normal sense of the term. This is clear from the 59th Report of the Law Commission of India suggesting amendments in the Hindu Marriage Act. There was no provision similar to sub-sec. (2) of S. 28 as it stood before the said amendment. So far as the present question is concerned, there is no material amendment brought about by the amending Act of 1976. ( 13 ) FOR the reasons stated bove I hold that O. 9, R. 13 of the Civil Procedure Code. is applicable to the proceedings under the Hindu Marriage Act. The Civil Revision is, therefore, dismissed. However, there shall be no order as to costs.