VANITA PRAVIN GAIKWAD Vs. PRAVIN PUNDLIK GAIKWAD

JUDGEMENT

(1.) In this Writ Petition under Article 227 of the Constitution of India, the following question arises for consideration "whether a matrimonial petition under the Hindu Marriage Act, 1955 (hereinafter referred to as "the said Act") filed in the Court having jurisdiction under section 19 of the said Act will be governed by the constraints of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") as amended by Code of Civil Procedure (Amendment) Act, 2002 -

(2.) The factual controversy is very narrow. The respondent-husband filed a petition for divorce under the said Act on various grounds. Written statement was filed by the petitioner-wife on 12th November, 2007. On 25th March, 2008, the learned Civil Judge (S.D.) permitted amendment to be carried out to the petition for divorce. Amended copy of the Petition was served to the petitioner on 8th April, 2008. An application made by the petitioner for grant of time to file additional written statement was rejected by the trial Court on 8th October, 2008 on the ground that the Additional Written Statement was not filed within the time provided under the said Code. On 5th November, 2008, an application was made seeking permission to file additional written statement. By order dated 29th November, 2008, the said application has been rejected by the trial Court. The said order has been impugned in this Writ Petition under Article 227 of the Constitution of India. On 13th August, 2009, this Court directed that the Petition shall be decided finally at the admission stage.

(3.) Submissions have been made by the learned Counsel appearing for the petitioner on the aforesaid issue in the light of the earlier order dated 8th October, 2008 passed by the trial Court by which application for grant of time to file additional written statement was rejected by the trial Court on the ground that additional written statement was not filed within the period of 90 days stipulated under the Code of Civil Procedure, 1908. The learned Counsel submitted that in view of section 21 of the said Act, the provisions of the said Act and the rules framed by this Court under the said Act will have overriding effect over the provisions of the said Code. She has invited my attention to the provisions of the Hindu Marriage and Divorce Rules, 1955 (hereinafter referred to as "the said Rules") framed by this Court in exercise of powers under section 14 read with section 21 of the said Act. She submitted that even assuming that the provision of Rule 1 of Order VIII of the said Code stands incorporated in the said Rules, what stands incorporated is the provision of the said Rule as on the date on which the Rules were framed by this Court and not the subsequent amendment made in the year 2002. She, therefore, submitted that amendment of the Rule 1 of the Order VIII in the year 2002 will not apply to the proceedings under the said Act. She submitted that in any event even assuming that the amended provision is applicable, the same has been held to be directory by the Apex Court and in the present case, there was more than sufficient reason and explanation for the delay. She invited my attention to the decision of the Apex Court in the case of Rani Kusum vs. Kanchan Devi and ors., 2005 6 SCC 705.