SUNANDA Vs. GUNDOPANT BANDOPANT ASHTEKAR

JUDGEMENT

(1.) This is an application for revision by a wife in a suit for divorce filed by her husband. A petition for divorce was made on 20-11-1956 by the husband on the ground of desertion by the wife and an alternative prayer for judicial separation was also made. The wife put in her appearance and filed a written statement, and the suit came up for heaving on 9-12-1957 before the Civil Judge (Senior Division), Kolhapur. On that day, the wife was absent, and the trial Judge proceeded to examine three witnesses on behalf of the husband and closed the case. On 11-12-1957, he passed a decree for judicial separation under Section 10 of the Hindu Marriage Act, 1955.

(2.) Consequent upon this ex parte decree the wife, the present applicant, applied on 10-1-1958 for setting aside the ex parte decree. Her application (Misc. Application No. 27 of 1958) purported to be under Order 9, Rule 13 of the Code of Civil Procedure. That application was rejected by the trial Court on the ground that the wife had not established sufficient cause for setting aside the ex parte decree, and that she did not appear to have contested the suit with diligence. The trial Judge was not satisfied that she had any excuse for remaining absent on 9-12-1957. In appeal, the Assistant Judge has confirmed the trial Court's finding and held as follows:

(3.) Another objection to this course is founded upon the view taken by the appellate Court as to the provisions of Sections 21, 23 and 28 of the 'Hindu Marriage Act, 1955. The learned Judge has, upon a consideration of these sections, held that the provisions of the Civil Procedure Code do not apply to the proceedings under the Hindu Marriage Act. and that, therefore Order 9, Rule 13 cannot apply, and he was not empowered to set aside the ex parte decree.