Skip to content


Anjan Kumar Kataki Vs. Smt. Minakshi Sarma - Court Judgment

LegalCrystal Citation
Subject;Family;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 80 of 1983
Judge
ActsHindu Marriage Act, 1955 - Sections 21 and 28(1); Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantAnjan Kumar Kataki
RespondentSmt. Minakshi Sarma
Appellant AdvocateM. Sarma and A. Sarma, Advs.
Respondent AdvocateB.M. Goswami and P. Khataniar, Advs.
DispositionRevision allowed
Excerpt:
- .....kataki was husband of smt. minakshi devi kataki. he instituted a suit under section 13 of the hindu marriage act for obtaining decree of divorce against smt. minakshi devi. he obtained an ex parte divorce decree on 31-3-79 in the court of district judge, dibrugarh.3. smt. minakshi devi filed a petition under order 9, rule 13 c.p.c. for setting aside the said ex parte decree. the said petition was registered as misc. case no. 84 of 1979 in the court of district judge, dibrugarh and subsequently on transfer, registered as misc. case no. 3 of 1980 in the court of additional district judge, dibrugarh. shri anjan kumar kataki contested the said misc. case on the ground that the case was not maintainable under order 9, rule 13, c.p.c. in view of the provisions under section 28 of the.....
Judgment:

S. Haque, J.

1. Petitioner Shri Anjan Kumar Kataki has preferred this Civil Revision against the Order dt. 7-2-83 passed by the learned Additional District Judge of Dibrugarh in Misc. Case No. 3 of 1980 arising out of Title Suit (Divorce) No. 1 of 1983 (Original No. 11 of 1978).

2. Petitioner Shri Anjan Kumar Kataki was husband of Smt. Minakshi Devi Kataki. He instituted a suit under Section 13 of the Hindu Marriage Act for obtaining decree of divorce against Smt. Minakshi Devi. He obtained an ex parte divorce decree on 31-3-79 in the Court of District Judge, Dibrugarh.

3. Smt. Minakshi Devi filed a petition under Order 9, Rule 13 C.P.C. for setting aside the said ex parte decree. The said petition was registered as Misc. Case No. 84 of 1979 in the Court of District Judge, Dibrugarh and subsequently on transfer, registered as Misc. Case No. 3 of 1980 in the Court of Additional District Judge, Dibrugarh. Shri Anjan Kumar Kataki contested the said Misc. Case on the ground that the case was not maintainable under Order 9, Rule 13, C.P.C. in view of the provisions under Section 28 of the Hindu Marriage Act (amended in 1976). However, the Additional District Judge held that a petition under Order 9, ,R. 13, C.P.C. was maintainable and accordingly allowed the said petition, set aside the ex parte decree and restored the suit to file by his order dt. 7-2-83 in Misc. Case No. 3 of 1983. Therefore, Shri Anjan Kumar Kataki has preferred this Civil Revision against the said order.

4. The learned counsel Smt. Mira Sarma, on behalf of the petitioner submitted that only appeal lies against all the decrees including ex parte decree, and has referred Section 28(1) of the Hindu Marriage Act (Amended in 1976). She further submitted that a petition under Order 9, Rule 13 C.P.C. is not maintainable in view of the clear mandatory provision of Section 28(1) of the Hindu Marriage Act. On the other hand, the learned counsel Shri B. M. Goswami for the opposite party submitted that a petition under O. 9 Rule 13 will also be maintainable in spite of the provisions under Section 28(1) of the Hindu Marriage Act, because all proceedings under Hindu Marriage Act are regulated by the Civil P.C. He has referred Section 21 of the Hindu Marriage Act. Now the point for decision is, whether a petition under Order 9 Rule 13 is maintainable for setting aside an ex parte decree passed under the Hindu Marriage Act. In this connection both the Sections 21 and 28(1) are to be read together :

Section 21 of the Hindu Marriage Act :-- 'Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.'

Section 28(1) of the Hindu Marriage Act :--'All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.'

5. It is made clear that subject to the other provisions contained in the Hindu Marriage Act, all proceedings under the said Act shall be regulated, as far as may be, by the Civil P.iC. Therefore, the mandatory provisions of Section 28(1) of the Hindu Marriage Act cannot be regulated by Order 9 Rule 13 of the C.P.C. for setting aside an ex parte decree. All decrees made by the Court in any proceeding under the Hindu Marriage Act also include an ex parte decree. Therefore, only appeal will lie against an ex parte decree as laid down under the mandatory provisions of Section 28(1) of the Hindu Marriage Act. An application under Order 9, Rule 13 C.P.C., for setting aside such ex parte decree, is not maintainable. The learned Additional District Judge committed error in law. The order dt. 7-2-83 is liable to be set aside.

6. In the result, this Civil Revision is allowed and the Rule is made absolute. The impugned order dt. 7-2-83 in Misc. Case No. 3 of 1980 is set aside. The said Misc. Case No. 3 of 1980 stands dismissed for non-maintainability. Send back the records to the Court of the Additional District Judge, Dibrugarh. Parties will bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //