GIRISH KUMAR Vs. VIPAN KUMARI

JUDGEMENT

(1.) APPELLANT husband sought the dissolution of marriage by decree of divorce under section 13 of the Hindu Marriage Act. "hereinafter referred to as the Act" mainly on the ground of desertion and cruelty. As the petition was filed within one year from the date of the marriage he filed a separate petition under sec. 16 of the Act for permission to file the petition within one year which was allowed. The respondent -wife thereafter filed an application for with -drawing the aforesaid application on the ground that the grounds alleged in the application for permission to file the petition within one year were illegal and unwarranted. It was further submitted that the order had been obtained by the petitioner by mis -representation. The appellant -petitioner was allowed to file objections to the application of the respondent -wife and the case was fixed for 13 -8 -1987. On that date the counsel of the appellant appeared in the trial court and prayed that he did not to press the petition which may be dismissed as such. On the request of the counsel for the petitioner, his petition was dismissed and consigned to record as not pressed. The appellant thereafter filed a fresh application on the same grounds against the respondent on 14 -8 -1987. The respondent -wife objected to the petition on the ground that the same was liable to be dismissed as the petitioner -husband had withdrawn the earlier petition without obtaining the leave of the court. After obtaining the objections and hearing the learned counsel for the parties the court below dismissed the petition of the husband holding that as he had with -drawn his earlier petition without the permission of the court, he was precluded to file fresh petition on the same grounds which were alleged under the previous petition. Aggrieved by the order of the trial court this appeal had been filed in this court on the ground that the provisions of Or. 23 R. 1 (4) C. P, C were not applicable as the Hindu Marriage Act was self -contained provision providing special procedure for the conduct of the cases under it. It is further submitted that a cause of action was a recurring cause entitling the husband to file fresh petition at any time.

(2.) I have heard the learned counsel for the appellant for the appellant and perused the record. No one has appeared for the respondents despite service.

(3.) SEC . 23 of the Act provides that all proceedings under the Act shall be regulated as far as may be by the Code of Civil Procedure. The Civil Procedure Code is, therefore, applicable to all the proceedings under the Act except in so far as the provisions of the Act or the rules made there under provide otherwise. If there is an inconsistency between the provisions of the Act and the Code of Civil Procedure, the provisions of the Act have to be preferred. The provisions regarding discovery and inspection under O. ll (AIR 1967 Orissa 19) provisions of O. 32 relating to suits by or against minors and persons of unsound mind (Shama Vs. Chalu Ram CIMA No. 44 and 45 of 1970 decided on 31 -7 -1982 by a Division Bench of J&K High Court) provisions of O. 9 Rules 9 and 13 (AIR 1966 Mysore 1) provisions of section 115 C. P. C. (AIR 1965 J&K 88) provisions of sec. 24 of the CPC (1981 Hindu Law Report 420 (Punjab), have already been held to be applicable in the proceedings under the Act. The C, P. C. only regulates the procedures and not the substantive rights. The learned counsel appearing for the appellant has referred to a judgment of Bombay High Court to urge that the provisions of Or. 23 of CPC were not applicable to proceedings under the Act. The Bombay case to which the reference has been, made dealt with the scope of rule 3 of O. 23 and not rule 4 of the said Order. Rule 3 of O. 23 CPC was held not applicable to the proceedings under the Act because section 23(1) (a) of the Central Act corresponding to sec. 28 of the State Act specifically provided that before a court can grant decree under the Act, it must be specified that one or other statutory grounds for granting relief exists in the case before it. It was held that a court under the Act gets the jurisdiction to grant a decree on proof of (he conditions of sec. 23 of the Central Act and cannot pass a decree, "otherwise the words appearing at the concluding portion of the said section which necessarily provided that a decree by consent could not be passed as the law then existed unless the court was satisfied that one or the other ground for granting the relief sought by the petitioner existed." As the corresponding provision as contemplated by Or. 23 Rule 3 CPC existed in the Act itself, it was rightly held that the provisions of Civil Procedure Code to that extent would not be applicable. In the instant case however it has not been pointed out that there existed any corresponding provision in the Act regarding withdrawal of the petition as is contemplated by Or. 23 Rule 4 of the C. P. C. the trial court therefore justifiably held the present petition filed on the same grounds to be not maintainable. There is no force in this appeal which is hereby dismissed but without any order as to costs.