Full Judgment
V.D. Gyani, J.
1. This Miscellaneous Appeal is directed against the order dated 17-7-1986, passed by the District Judge, Indore in M.J.C. No. 73/85, and an ex parte decree for divorce was passed in Hindu Marriage Act case No. 139/85. The Appellant moved an application under Order 9 Rule 13 CPC for setting aside ex parte decree. The Trial Court, placing reliance on decision, as reported in AIR 1985 Gau 44, Anjan kumar v. Smt. Minakshi Sarma, dismissed the application, holding that the same was not maintainable.
2. The learned counsel for the appellant, submitted that Section 21 of the Hindu Marriage Act, (hereinafter called as 'the Act') specifically laid down the applicability of Code of Civil Procedure to such proceedings, as far as possible. It was contended that there is no reason why the procedure for setting aside ex parte decree, as laid down under Order 9, Rule 13, CPC should not be followed in cases under the Act. Counsel for the respondent, on the hand, submitted that the application under Order 9, Rule 13, CPC was made solely with the object of gaining time to prefer an appeal before this Court. It was also pointed out that the application under Order 9,Rule 13, CPC merely prayed for setting aside alimony part of the decree.
3. It is not necessary at this stage to go into the question, as to what was actually prayed for by the appellant. The real question raised in this appeal is whether an application under Order 9, Rule 13, CPC is maintainable under the proceedings for setting aside ex parte decree for divorce passed under Section 13 of the Act.
4. The counsel for the Appellant referred to very recent decision of this Court as reported in 1986, Madh Pra 138 Smt. Laxmibai v. Keshribai. This case no doubt refers to the course adopted by a person aggrieved by an ex parte decree, under the Act, but the question, which was raised in the appeal was not directly involved in the aforesaid case.
5. Language of Section 21 of the Hindu Marriage Act is very clear, it reads as follows :
'21. Application of Act 5 of 1908: Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.' :
Rules, which have been framed by this Court, do not provide for procedure to be followed in case of an ex parte decree. Section 28(1) lays down that all decrees made by the Court under the Hindu Marriage Act, shall be appealable, subject to Sub-section (3) of Section 28 of the Act. Reading Section 21 and Sub-section (1) of Section 28 together, it cannot be said that the applicability of Order 9, Rule 13, CPC is completely ruled out, if an ex parte decree is passed. A remedy available under the Code of Civil Procedure is by way of an appeal, as well as an application under Order 9, Rule 13, CPC, for setting aside an ex parte decree, in a case under the Hindu Marriage Act. The law does not favour an ex parte decree under the provisions of the Code of Civil Procedure for setting aside the same. Severance of matrimonial relationship is a serious matter and more so, when it is based on an ex parte decree. Law respects and public policy demands that the matrimonial bond should as far as possible, be maintained in a case of ex parte decree for divorce, A person aggrieved, can no doubt, prefer an appeal, but its scope will naturally be limited. Such person will have no opportunity of placinghis own case before the Trial Court, and will have to depend on the decree as passed Reading Section 21 as it is which makes Code of Civil Procedure applicable to proceedings under the Act, the applicability of Civil Procedure Code is not restricted by Section 28 of the Act, as has been erroneously found by the Trial Court.
6. By virtue of Section 21 of the Act. the provisions of Code of Civil Procedure apply to proceedings under the Act, and therefore, Order 9, Rule 13, CPC would also apply and should apply for the reasons indicated above. If any authority is needed for the proposition, the case as reported in AIR 1961 Bom 225; Sunanda v. Gundopant, may be referred. To the same effect are the following cases :
a) AIR 1978 Punj & Har 150; Manjit Kaur v. Gurudayal Singh.
b)AIR 1966 Mys 1; Tirukappa v. Kamalamma.
The Division Bench, Mysore High Court has held that the provisions of Rules 8 and 9 of Order 9 of the Code of Civil Procedure, have application to the proceeding under the Hindu Marriage Act, and the Court observed as follows :
'It will be noticed that the position is more or less similar to the position under Rules 8 and 9 of Order 9 of the Code of Civil Procedure. The specific provisions of these rules being quite in accord with the general principles followed for generations by Courts exercising civil jurisdiction in this country and there being nothing in them which is to any extent repugnant to any of the provisions or the policy of the Hindu Marriage Act they should be applied by virtue of Section 21 thereof. Indeed the provisions appear to us to be quite just and proper from the point of view of the parties and quite essential from the point of view of due despatch of work of civil courts.'
7. For the foregoing reasons, it must be said with respect to the learned Judge that the decision as reported in AIR 1985 Gau 44; Anjan kumar v. Smt. Minakshi, cannot be accepted.
8. This appeal, therefore, deserves to be allowed and is accordingly allowed. However, there shall be no order as to costs.The impugned order is set aside, and the trial Court is directed to decide the Appellant's application under order 9, Rule 13, C.P.C. on merits in accordance with law.