SHRIMALI RASIKLAL RAJABHAI Vs. BAI AMBA

JUDGEMENT

(1.) The applicant who was defendant in matrimonial proceedings under the Baroda Hindu Nibandh and against whom a decree nisi had been passed for divorce gave an application under para 7 of the 7th Schedule to the Baroda Hindu Nibandh objecting to making final the decree nisi but his application was rejected by the learned Civil Judge Senior Division Mehsana on the ground that an application under para 7 of the 7 Schedule to the Baroda Hindu Nibandh which is taken from sec. 16 of the Indian Divorce Act could only be made by a person who is not party to the original proceedings and could not be made by the defendant himself. On this ground the application was rejected.

(2.) In revision it is contended that the rejection of the application on such a ground was a material irregularity in the exercise of jurisdiction. The judgment of the learned Judge was based only on certain decisions of some High Courts on section 16 of the Indian Divorce Act in particular on the decision in Harrietta A. King v. James S. King I. L. R. 6 Bombay 416 which was a decision on the construction of section 16 of the Indian Divorce Act. But it would not be proper to consider the rulings on the scope of section 16 of the Indian Divorce Act because in the Indian Divorce Act there is a provision in sec. 7 which is as follows :-

(3.) There is no such provision in the Baroda Hindu Nibandh. It is therefore improper and useless to refer to the decision of High Courts on the Indian Divorce Act and the cases on section 7 of the English Matrimonial Causes Act (23 and 24 Vic. C. 144) would therefore be in fact misleading and might lead to a misconstruction of the language of the Baroda Hindu Nibandh. In fact if we turn to the case in I. L. R. 6 Bombay 416 we find that although one of the parties was refused permission to intervene in the proceedings the Court refused to make the decree absolute but took upon itself the duty to make an inquiry into the allegations made by one of the parties. In fact the Court took upon itself the task of inquiring into the allegations made by one of the parties who was not allowed to appear and make those allegations. In such a case it is far better for the Court to make an inquiry into the allegations of one of the parties keeping that party present. In such cases what is wanted is a decision by the Court as to whether those allegations made are true or not. By refusing a party permission to appear the Court does not shut out the allegations of the party but in fact wants to make a full and thorough inquiry into the allegations made by the party