DARSHANA DEVI Vs. BODH RAJ

JUDGEMENT

(1.) Civil Reference on hand has emerged out of an application filed under Order IX Rule 13 Civil Procedure Code for setting aside ex parte judgment and decree passed under section 13 of J & K Hindu Marriages Act, 1980 (for brevity 'H.M. Act') titled Bodh Raj v. Mst. Darshana Devi. The application under Order IX Rule 13 was filed after the expiry of the period of limitation prescribed under law. The delay in filing the application was justified on various grounds including the one that the notice of application under section 13 of the Act, was not served on the applicant; that the report of Process Server indicating applicants refusal to receive the notice was false and that the applicant acquired knowledge about the ex parte judgment and decree dated 27.01.2003 when, counsel for the respondent in a parallel proceedings initiated by the applicant u/s. 488 Cr.P.C., produced a copy of the ex parte judgment and decree in question before the Trial Magistrate, to escape the liability to pay maintenance to the applicant. The applicant claimed to have taken immediate steps to obtain certified copy of the judgment and decree and filed application under Order 9 Rule 13 C.P.C. without any delay. The application was resisted by the non applicant/decree holder, inter alia on the ground that the application was filed beyond period of limitation prescribed under law and therefore liable to be dismissed. It was insisted that section 5 J & K Limitation Act, Svt. 1995 (1938 AD) would not be applicable as (a) H.M. Act, was a special Act; (b) prescribes its own period of limitation and (c) did not make section 5 of the Limitation Act, applicable to proceedings under the Act.

(2.) Ld. Trial Judge (Principal District Judge Udhampur) after a detailed survey of law on the subject, opined that law on the subject was the in realm of uncertainty and to dispel confusion it was necessary to make a reference to the High Court in terms of Order 46 C.P.C., Accordingly Ld. Trial Judge formulated following two questions while making the reference:

(3.) The H.M. Act, has been enacted to amend and modify the law relating to marriages amongst hindus. Section 5 of the Act, lays down conditions for hindu marriages, while sections 7 and 8 deal with ceremonies for hindu marriage and registration of a hindu marriage. Section 13 of the Act, lists various grounds on which a marriage could be dissolved by a decree of divorce by filing a petition by either of the parties before the Court of the District Judge. Section 34 of the Act, provides for appeals from decrees and orders passed under the Act. It provides that a decree passed under the Act is appealable as decrees of the court made in exercise of its original civil jurisdiction to the court to which the appeals ordinarily lie. The orders passed under sections 31 or 32 i.e. "permanent alimony and maintenance" and "custody of children" likewise would be appealable provided the orders are not interim in character. Section 34(3) prescribes 30 days as period of limitation for filing appeal from the date of the decree or order.