JUDGMENT : P.C. Misra, J. - Defendant in Title Suit No. 17 of 1987 of the Court of Munsif, Sambalpur is the appellant in this appeal challenging the reversing judgment passed by the Additional District Judge, Sambalpur in Title Appeal No. 36/11 of 1987/88. The plaintiff filed the aforesaid suit for a declaration that she .is the wife of Bharat Patel (since dead) and she is entitled to get the family pension on account of the death of her husband. Bharat Patel was working as a Daftari in the Collectorate of Sambalpur. He died on 4.10.1975. After his death the plaintiff as the second wife of late Bharat was Paid family pension, gratuity etc. for the period from 5.10.1975 to 28.2.1982. By order dated 12.3.1982 the Collector, Sambalpur withheld the family pension sanctioned in favour of the plaintiff on the ground that the plaintiff is not legally married wife of late Bharat Patel. The plaintiff made a representation to the Collector as well as to the Accountant General Orissa alleging that she is the legally married second wife of late Bharat Patel and is entitled to receive the family pension etc. Thereupon the plaintiff was instructed in March, 1986 to produce succession certificate from the competent Court in support of her claim. The plaintiff thereafter filed this suit for the aforesaid declaration. 2. It was alleged in the plaint Bharat Patel had married defendant in the year 1954 and there was a divorce between them in the year 1964.A document to that effect has been executed on 21.1.1964 by the defendant in presence of witnesses in favour of Bharat Patel and thus the marriage stood dissolved with effect from that date. It has also been alleged that the divorce was effected on the consent of both parties, according to their caste custom and social rites prevailing in their society. After the dissolution of marriage between Bharat Patel and the defendant, the defendant married on Dhaneswar of Modipara and had lived as husband and wife till the year 1969 It is the allegation of the plaintiff that Bharat thereafter married the plaintiff on 2.7.1964 in 'Bandani form of marriage and both of them lived as husband and wife till the death of Bharat. In evidence of marriage of the plaintiff Bharat also executed a document on 2.7.1964. In these circumstances, the plaintiff prays for the aforesaid declaration. 3. In evidence of marriage of the plaintiff Bharat also executed a document on 2.7.1964. In these circumstances, the plaintiff prays for the aforesaid declaration. 3. It appears from the record that defendant appeared through an Advocate on receipt of the summons issued in the suit, and applied for adjournment on 1.5.1987 to enable her to file her written statement. Time was granted till 1.7.1987, but the defendant did not appear on the adjourned date and was set ex-parte. The Court thereafter called upon the plaintiff to adduce evidence ex-parte. On consideration of the ex-parte evidence, the Court was not satisfied that the plaintiff has been able to establish the allegations made in the plaint. Consequently the suit was dismissed by the learned trial Court The plaintiff thereafter carried up the matter in appeal and the appellate court allowed the appeal recording a finding to the effect that the obsertion made by by the trial Court in the impugned judgment was contrary to law. The proposition of law was enunciated by the lower appellate Court that there is no bar anywhere in any law for a widow getting married for the second time and after a widow gets remarried all her claims and connection with the family of the deceased husband would automatically cease. Then the lower appellate Court jumped to a conclusion that the finding of the trial Court is erroneous and reversed the same. Consequently the suit was decreed. Hence this appeal by the defendant. 4. The contention of the learned Counsel for the Appellant is that the plaintiff having failed to prove custom governing the parties that a divorce is permissible without going to Court of law, the plaintiff could not succeed in the suit. His second contention is that once the plaintiff failed to establish . that there was a divorce legally effected between the defendant and deceased Bharat Patel, the second marriage is bound to be held to be void and, therefore, the plaintiff cannot have the status of a wife of late Bharat Patel. He has also argued that the suit is seriously barred by limitation and should have been dismissed on that count alone. 5. He has also argued that the suit is seriously barred by limitation and should have been dismissed on that count alone. 5. The learned Counsed appearing for the respondent, in reply to the aforesaid contentions has argued that the defendant did not file any written statement in the suit and, therefore, it was permissible for the Court to presume that she has admitted the allegations made in the plaint. Relying on the provision of Sub-rule (2) of Rule 5 of Order 8 of the Code of Civil Procedure, it was contended by the learned Counsel for the respondent that since the defendant did not file any pleading it was permissible for the Court to. pronounce judgment on the basis of the facts contained in the plaint and therefore, the defendant has no locus standi to challenge the correctness of the statement made in the plaint at this stage. According to him, the Court must proceed on the assumption that the facts alleged in the plaint stand proved and the plaintiff was not obliged to adduce any evidence in support thereof. He has also referred to Rule 10 of Order 8 of the Code, which provides that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit. Here the defendant having failed to present a written statement, the Court could pronounce the judgment assuming that the plaint allegations are not disputed. 6. The contentions of the learned Counsel for the respondent as noted above, are not acceptable in the facts and circumstances of the case. Order 8, Rule 5 of the C.P.C. requires that every allegation of fact in the plaint if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. It is not a case where the defendant has filed a written statement without denying the facts alleged in the plaint specifically, The proviso to the said Sub-rule authorises the Court that it may in its discretion require any fact so admitted to be proved otherwise than by such admission. It is not a case where the defendant has filed a written statement without denying the facts alleged in the plaint specifically, The proviso to the said Sub-rule authorises the Court that it may in its discretion require any fact so admitted to be proved otherwise than by such admission. Assuming that by non-filing of written statement by the defendant, the consequence as enumerated in Sub-rule (1) will follow, it was still within the discretion of the Court to require the plaintiff to prove the facts alleged in the plaint. In this case the Court did not proceed on the basis that the facts stated in the plaint stand admitted by non-filing of the written statement by the defendant, but required the plaintiff to adduce evidence to prove the facts alleged in the plaint. Similar is the situation so far as the Rule 10 of Order 8 is concerned. In the event, the defendant does not file written statement within the period granted by the Court, the said rule authorises the Court to pronounce judgment against the defendant or make such order in relation to the suit as it thinks fit. The Court in this case adopted the course requiring the plaintiff to prove the facts by adducing evidence. Thus it is not a case where the Court purports to proceed either on Sub-rule (1) of Rule 5 or under Rule 10 of Order 8 of the C.P.C. In other words, the Court in this case granted the plaintiff to prove the facts on which she relies to obtain the relief prayed for in the plaint. It, therefore, now requires to be determined as to whether the plaintiff was entitled to a decree on the evidence adduced in the suit. It is fundamental that the Hindu Marriage Act, 1955 contains a provision overriding effect of the Act. In this connection, Section 4 of the Hindu Marriage Act may be extracted as follows: "4. It, therefore, now requires to be determined as to whether the plaintiff was entitled to a decree on the evidence adduced in the suit. It is fundamental that the Hindu Marriage Act, 1955 contains a provision overriding effect of the Act. In this connection, Section 4 of the Hindu Marriage Act may be extracted as follows: "4. Overriding effect of Act-Save as otherwise expressly provided in this Act- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately, before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." 7. The Act makes a provision for dissolution of the marriage. Therefore, it would not have been permissible for any party to claim that the marriage was dissolved otherwise then in a proceeding as provided in the Act, but for Section 29 Sub-section (2) of the said Act. According to the said Sub-section, nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. This enables a pary to obtain a dissolution of marriage if such a right is recognized by custom or is conferred by a special enactment. In the present case, the plaintiff alleged _that the dissolution of marriage with the defendant was as per the custom prevalent among the parties to the suit. The law is fairly well settled that in order to prove that there exists a custom, it is necessary to establish that the alleged custom was uniformly and continuously followed from time immemorial and is not opposed to public police. None of the ingredients appears to have been found by the learned lower appellate Court while disposing of the appeal. It has merely referred to the observations of the learned trial Court which in his opinion is contrary to law and on that basis alone the judgment of the trial Court was set aside. The judgment of the lower appellate Court cannot, therefore, be supported. 8. It has merely referred to the observations of the learned trial Court which in his opinion is contrary to law and on that basis alone the judgment of the trial Court was set aside. The judgment of the lower appellate Court cannot, therefore, be supported. 8. From the evidence on record I would have dismissed the plaintiff's suit and closed the litigation at this stage, as the evidence itself, in my opinion, is farless from the standard required by law in order to be entitled to relief prayed for in the suit. But the learned Counsel for the respondent submitted that the defendant did not contest the suit in the trial Court for which reason much of care was not given to adduce evidence as is normally required in a contesting suit. This argument of the learned Counsel for respondent appeals to me and I, therefore, feel that the parties must be given an opportunity for establishing their rights by adducing further evidence in the suit itself. To achieve the aforesaid purpose, I would set aside the judgment of the learned Courts below and remand the suit to the trial Court for its fresh disposal in accordance with law. The learned trial Court would give an opportunity to the defendant to file her written statement, if she chooses to file one and thereafter proceed to dispose of the suit giving opportunity to the defendant to cross-examine the witnesses already examined. Both parties would be at liberty to adduce further evidence in the light of issues to be settled by the Court. This being a suit of the year 1987, the trial Court should take care for its expeditious disposal. No costs.