DIPTI GHOSH Vs. SWAPAN KUMAR GHOSH

JUDGEMENT

(1.) This revisional application is directed against the order dated 7-3-90 passed by the learned District Judge, Howrah in Mis. Case No.132 of 1989. The order impugned involves disposal of an application u/S. 24 of the Hindu Marriage Act for an order of alimony pendente lite in favour of the petitioner wife in Mis. Case No.132 of 1989 arising out of an application for setting aside an ex parte decree under order 9 rule 13 of the CPC. The learned Judge held that since the Mis. Case under order 9 rule 13 of the CPC is pending no remedy U/s.24 of the Hindu Marriage Act will be available to the wife. According to the learned Judge unless the suit is restored to file there is no scope of passing an order u/s. 24 of the Hindu Marriage Act. In this view of the matter the Id. Judge allowed an application for stay of hearing of the petition u/s.24 of the Hindu Marriage Act till disposal of the Mis. Case under Or.9 Rule 13.

(2.) Mr. Chatterjee, Id. Advocate appealing for the petitioner has contended that the proceeding for setting aside an exparte decree in a matrimanial suit under the Hindu Marriage Act is a proceeding under the Hindu Marriage Act itself. This is so because of the provisions of Sec.21 of the Hindu Marriage Act. Accordingly, he contended that the Id. Judge made an error in law in not disposing of the application U/s.24 of the Hindu Marriage Act. It appears from the observations made by the Id. Judge in the order impugned that unless the ex parte decree is set aside proceedings under the Hindu Marriage Act is not revived and accordingly no application U/s. 24 is maintainable as such an application is maintainable in a proceeding arising out of the Act. In support Mr. Chatterjee has cited decision reported in AIR 1985 Delhi 40 Rishi Dev Anand v. Smt. Devindar Kaur, a single bench of the court lays down that under the Hindu Marriage Act there is no provision for setting aside an ex parte decree. Accordingly, recourse has to be taken to the provisions of CPC for the purpose. In view of Sec. 21 of the Act a proceeding under Order 9 Rule 13 is maintainable. Such a proceeding under the CPC for setting aside ex-parte decree passed under the Hindu Marriage Act is a proceeding under the said Act and during the pendency of such proceedings an application u/s.24 is maintainable. Mr. Chatterjee on the same contention has also relied on a decision reported in AIR 1989 Bom 146 Hemraj Shamrao. Umredkar v. Smt. Lila. It lays down that Sec.21 of the Hindu Marriage Act engraves the relevant provisions of the code into the Act for regulating the procedure and independently of Sec.21 the CPC would have no application. Therefore though the procedure for setting aside the ex parte decree would be regulated by the CPC it would only be a proceeding under the Act and application for interim maintenance is therefore maintainable. Mr. Chatterjee referred to a Division Bench decision of this court reported in 93 CWN 79 Apurba Mohan Ghosh v. Manasi Ghosh, (AIR 1989 Cal 115). The court held that u/s. 21 of the Hindu Marriage Act all proceedings under the Hindu Marriage Act shall be regulated as far as may be by the Code of Civil Procedure. From this observation of the Division Bench Mr. Chatterjee contended that under Or.9 Rule 13 regulates the procedure for setting a decree obtained ex parte. But the proceeding is a proceeding under the Hindu Marriage Act.

(3.) Mr. Chatterjee then contended that an appeal against an ex-parte decree is maintainable and since an appeal is the continuation of the suit itself relief u/s. 24 of the Hindu Marriage Act may continue in any appeal preferred against the decree passed in a matrimonial suit governed by Hindu Marriage Act. He has referred to a decision reported in AIR 1968 Cal 276 Arya Kumar Bal v. Smt. Ila Bal, a Division Bench of this Court held that a wife who has obtained an ex parte decree for annulment of her marriage that alimony pendente lite on the ground of physical impotency of her husband is entitled to claim interim maintenance from the husband during the pendency of an appeal against the decree filed by the husband. Mr. Chatterjee submitted that since a party aggrieved by an ex parte decree against him can take recourse to either preferring an appeal against the said decree or by setting it aside in terms of the provisions of Or.9 Rule 13. It would be anomalous if an application u/s.24 of the Hindu Marriage Act is maintainable in case an appeal is preferred against an ex parte decree but it would be maintainable if relief is sought for setting aside the same decree in a proceeding under Or.9 Rule 13 of the CPC. Accordingly, Mr. Chatterjee contended that the order impugned cannot be sustained in law and the Id. Judge ought to have entertained the application u/s. 24 of the Hindu Marriage Act and disposed of the same on merit during the pendency of the proceedings under Or.9 Rule 13.