MANJIT KAUR Vs. GURDIAL SINGH GANGAWALA

JUDGEMENT

(1.) The only question which calls for decision in this petition for revision of the order of the Court of Shri Charan Singh Tiwana. District Judge, Chandigarh, dated Jan. 14, 1977, is whether or not the provisions of R. 9 of O. 9 of the Civil P. C. are applicable to applications for judicial separation or divorce, etc. filed under the Hindu Marriage Act (25 of 1955)(hereinafter called the Act).

(2.) The relevant facts giving rise to this petition are not in dispute. The petitioner was married to the respondent. On March 4, 1976, the respondent filed an application against the petitioner for judicial separation under S. 10 of the Act on the ground that she had deserted the respondent on Nov. 11, 1973, that is for a continuous period of not less than two years preceding the presentation of the petition. That application was dismissed by the Court in default of appearance of the respondent on June 3, 1976. The petitioner was present on that day and the dismissal was ordered under R. 8 of O. 9 of the Code. Soon thereafter the respondent filed his present application against the petitioner for divorce under S. 13 of the Act. The petition for divorce is practically a verbatim copy of the earlier petition for judicial separation. The solitary ground on which divorce has been claimed is again the same allegation of desertion. While contesting the respondent's claim for divorce, the petitioner took up a preliminary objection to the effect that the preliminary objection to the effect that the petition for divorce is liable to be dismissed under Order 9 Rule 9 of the Code as the respondent did not get his original application for judicial separation restored which he could have amended after the coming into force of the Marriage Laws (Amendment) Act (68 of 1976) so as to claim therein a decree for divorce which could be claimed in a pending case after the coming into force of the amending Act. This plea of the petitioner was put by the learned District Judge into the following preliminary issue:-" Whether the petition is barred under O. 9 R. 9 C. P. C.?"

(3.) By his order under revision the learned District Judge has held that the present case is not such in which the provisions of O. 9 R. 9 can be applied as it would cause real hardship to the respondent if the rigour of that rule is made applicable to the case.