JANG BAHADUR SYAL Vs. MUKTA SYAL

JUDGEMENT

(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. 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).