1. This is an application for revision by a wife in a suit for divorce filed by her husband. A petition for divorce was made on 20-11-1956 by the husband on the ground of desertion by the wife and an alternative prayer for judicial separation was also made. The wife put in her appearance and filed a written statement, and the suit came up for heaving on 9-12-1957 before the Civil Judge (Senior Division), Kolhapur. On that day, the wife was absent, and the trial Judge proceeded to examine three witnesses on behalf of the husband and closed the case. On 11-12-1957, he passed a decree for judicial separation under Section 10 of the Hindu Marriage Act, 1955.
2. Consequent upon this ex parte decree the wife, the present applicant, applied on 10-1-1958 for setting aside the ex parte decree. Her application (Misc. Application No. 27 of 1958) purported to be under Order 9, Rule 13 of the Code of Civil Procedure. That application was rejected by the trial Court on the ground that the wife had not established sufficient cause for setting aside the ex parte decree, and that she did not appear to have contested the suit with diligence. The trial Judge was not satisfied that she had any excuse for remaining absent on 9-12-1957. In appeal, the Assistant Judge has confirmed the trial Court's finding and held as follows:
'Therefore, prima facie, she has failed to prove sufficient cause for her absence, and the order of the learned Judge must be upheld'.
He has also held that in proceedings under the Hindu Marriage Act, proceedings under Order 9 Rule 13 of the Code of Civil Procedure are not permissible. in the first place, it may be pointed out that to give a finding that prima facie the wife has failed to prove sufficient cause for her absence, is hardly a finding which would justify dismissal of her application for setting aside the ex parte decree. But, apart from this, it has been pointed out by Mr. Kulkarni on behalf of the wife that she had in her application specifically alleged that on 9-12-1957 she had sent a telegram to the Court saying that she was unable to come and one of the grounds on which she intended to show sufficient cause was the sending of that telegram. The appellate court has also referred to this telegram in paragraph 7 of its judgment. Nevertheless there is absolutely no finding in the orders of both the Courts below as to whether this telegram was received by the Court and, if received, whether it constituted sufficient cause or not. It seems to me that it was completely lost sight of in the considerable discussion that took place in both the Courts below upon other points. If the telegram was received in Court, it would certainly be a circumstance which ought to be taken into account in deciding whether the wife had shown sufficient cause for setting aside the ex parte decree or not. In the absence of any adjudication as to that telegram, I think, that the findings of both the Courts below are vitiated. Counsel for neither of the two parties before me were able to show that that telegram was considered in the Courts below. Mr. Sawant on behalf of the opponent has pointed out that the trial Judge did refer to some telegram though not the one of 9-12-1957. In these circumstances, it seems to me that the findings of both the Courts below will have to be set aside and the application to set aside the ex parte decree made on 10-1-1958 sent back for re-trial from the stage which it had reached when the issues were framed.
3. Another objection to this course is founded upon the view taken by the appellate Court as to the provisions of Sections 21, 23 and 28 of the 'Hindu Marriage Act, 1955. The learned Judge has, upon a consideration of these sections, held that the provisions of the Civil Procedure Code do not apply to the proceedings under the Hindu Marriage Act. and that, therefore Order 9, Rule 13 cannot apply, and he was not empowered to set aside the ex parte decree.
4. Reliance has been placed by the appellate Judge principally on Section 21 which states that subject to the other provisions contained in the 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. The learned Judge held that since no rules have been framed by the High Court, Section 21 of the Act cannot be invoked. I should have thought that the simple language of the section admits of 110 doubt or difficulty. The appellate Judge has remarked that there are no rules framed by the High Court as required by the section and seems to imply that in the absence of any such rules, the section cannot apply. I am unable to see what the framing of the rules by the High Court has got to do with the applicability of Section 21. The power to frame rules given by Section 21 is only an enabling power and leaves it to the discretion of the High Court to frame or not to frame rules. Section 21 does not make the framing of the rules a condition precedent to the applicability of the provisions of the Civil Procedure Code to proceedings under the Hindu Marriage Act. Therefore, assuming that no rules have been framed by the High Court, still theproceedings under the Act must be regulated by the Code of Civil Procedure, and therefore, Order 9, Rule 13 would apply.
5. It may, however, be pointed out to the learned appellate Judge that rules under the Act have been framed by the High Court, and though they may not expressly provide for proceedings for setting aside of ex parte decrees, the normal provisions of the Civil Procedure Code would apply. These are to be found at page 329 of the Civil Manual Volume I (1957 Reprint) Chapter XXVIII.
6. Reference was also made by the learned Judge to Sections 23 and 28 of the Act. Section 23(1) deals with the grounds upon which and the conditions under which a decree can be passed, and Sub-section (2) prescribes it as a duty of the Court to bring about reconciliation between the parties wherever possible. Section 28 merely deals with the enforcement of an appeal from decrees and orders. I am unable to see how the provisions of any of these two sections can affect the question as to the applicability of the provisions of the Civil Procedure Code to proceedings under the Act. I am unable to sustain the view of the learned appellate Judge that in proceedings under the Hindu Marriage Act, the provisions of Order 9, Rule 13 of the Code of Civil Procedure do not apply.
7. Upon the view that I take, I allow the application, set aside the orders of the Courts below and remand the application dated 10-1-1958 Miscellaneous Application No. 27 of 1958 made by the applicant for retrial from the stage of issues. There will be no order as to costs.
8. Case remanded.