1. This second appeal by the wife arises out of the marriage proceedings which were initiated by the respondent praying for a decree if nullity or in the alternative for a divorce on the grounds that the appellant-wife was suffering from mental disorder and a fraud was practised on the respondent-husband by suppressing the facts about the mental state of the wife. To seek a decree for divorce, the grounds of cruelty and desertion were asserted. In the proceedings, the present appellant-wife admittedly filed an application under Section 24 of the Hindu Marriage Act (hereinafter called 'the Act') as per Ex. 11 praying for interim maintenance at Rs. 350/- per month and a sum of Rs. 1,000/- for the expenses of the proceedings. This application was filed on January 22, 1980 which was supported by an affidavit of the wife (Ex. 12). Thereafter, before the trial Court it does not appear that any written statement was filed. Five applications were made for seeking time and when the matter came before the trial Court on April 14, 1980, again a similar application was moved, but that application was rejected. Acting upon the affidavit filed by the respondent-husband, which is at Ex. 23, in support of the allegations in the petition, the trial Court made a somewhat curious decree which doe all purposes is ex parte that the marriage was null and void and it stood dissolved. Furthermore, it was directed that a decree for divorce be drawn accordingly. In the appeal taken up by the wife, the First Appeal Court was of the view that the decree of nullity could not be made in view of the bar of limitation. However, the decree for divorce could be made ex parte because no written statement was filed. Taking that view, the appeal was dismissed. This decree for divorce as is affirmed by the First Appeal Court is under challenge in the present second appeal. It does appear that during the course of the hearing of the appeal on behalf of the wife written statement was sought to be tendered, but the same was not accepted.
2. In the entire proceedings excepting para 5 of the trial Court's judgment it does not appear that there was any consideration bestowed upon the entitlement of such wife to seek maintenance pendente lite and the expenses of the proceedings for which proper application was filed supported by the affidavit as available at Exs. 11 and 12. Without deciding such an application, it is indeed difficult to permit the passing of such exparte judgment only because the written statement is not filed, particularly when the allegations on the basis of which relief of nullity and divorce are sought ate serious enough and, before they are accepted, required sufficient and adequate proof. In such matters, looking to the policy of law, it must be observed that the proceedings under Section 24 of the Act have an important bearing with regard to the rights of the defending spouse. Not only the provisions of Section 24 of the Act permit grant of maintenance pendente lite, but also it permits the Court to make an order with regard to necessary expenses of the proceedings. In a given case without provision for the necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. The trial Court, which was bound to decide the application with regard to the maintenance and the expenses. There is, thus, obvious failure to follow the provisions of Section 24 of the Act, and that should be enough to set aside the judgment under appeal and remit the matter back to the trial Court directing it to consider the application filed at Ex. 11 supported by Ex. 12 and then to proceed with the enquiry in the petition according to law.
3. There is, however, another aspect which must be mentioned and that relates to the adequacy of the proof in such matters. Decrees of the kind sought by the spouses cannot be made as of course. The same should be made only on the basis of adequate material placed by the party seeking a decree. This is more so when the charges are serious enough like that of the mental disorder of the spouse and of fraud. it is obvious that by mere statements in an affidavit, which may in a given case deserve acceptance, the factum of the mental disorder of the given person cannot be found out. The material like the one having reference to medical treatment, evidence of the other persons who had ordinarily occasions to be in the company of such person, which should be available, should ordinarily be insisted upon. It is significant that though in the present case the plea was that of mental disorder, no other material in that regard was either tendered or insisted upon. An affidavit of the husband is nothing but the recitals of the allegations contained in the petition. Such assertions can hardly be treated as adequate.
4. It is evident from the trial Court judgment that the matter was decided only on the basis of the affidavit so as to accept the plea of the unsoundness of mind of the wife. Such acceptance of the affidavit does not further the requirements of law. The Court should have, in such matters, should corroborative or other direct evidence with regard to the allegation of the unsoundness of mined of the wife. If the wife was really affected by the mental disease and was not in a position to take care of herself, it is indeed difficult to understand as to how the matter at all was proceeded with without there being an effort to appoint a guardian for such a person. The entire matter appears to have proceeded on assumptions and is clearly affected by the technical approach. It is difficult to sanction such a course of enquiry in the matters arising under the statutes concerning the marriage and the decree of the kind as was sought in the present case.
5. In this regard, no doubt, reliance can be placed on the provisions of Section 21 of the Act which provides for the proceedings under the Act to be regulated, as far as may be, by the Code of Civil Procedure, 1908. By reason of this provisions to the trial of the petition, the provisions of the Code of Civil Procedure could be applied. If so applied, the Court could, where a defendant like the opposing spouse has not chosen to filed the pleading, lawfully pronounce a judgment on the basis of the facts contained in the petition. Similarly, if the plaint allegations are not specifically or by necessary implication denied, the same could be taken to have been admitted. Both these rules form part of the procedural law with regard to the pleadings as are available in Order 8, Rule 5 of the Code of Civil Procedure. The First Appeal Court appears to have proceeded on the basis that as the wife failed to file pleadings, the Court was entitled to pronounce the judgment with regard to the matters of cruelty and desertion and make a decree for divorce. In matters of special jurisdiction, that is conferred by the special statute like the Act, this approach borders on technicality and does not further the ends of justice.
6. No doubt, under the applicative provisions of Order 8, Rule 5 of the Code of Civil Procedure, it is lawful for the Court to pronounce judgment in the absence f the pleadings in defence or even to treat the allegations of fact not denied as having been admitted, but that is the general rule which does not apply against a person under disability. When the basic allegations in an action of the present kind were that the defending person was of unsound mind and even on that basis the relief of nullity was sought, the provisions of Order 8, Rule 5 would hardly be attracted. Furthermore, the rule is not an absolute one nor of universal applicability. Proviso to sub-rule (1) of Rule 5 of Order 8 confers ample discretion upon the Court to require any fact so admitted to be proved otherwise than by such admission and sub-rule (3) of Rule 5 of Order 8 lays down one of the categories in the matter of exercise of that discretion requiring the Court to have due regard to the fact whether the defendant could have or has engaged a pleader. By reason of Section 21 of the Act, though this provisions would be applicable, that application is as far as may be possible. In other words, the matter is entirely in the discretion of the Court. As indicated above, even the application for the Court expenses and maintenance was not granted and the question in such cases would be whether, in want of such interim relief, the defending wife would or would not have had the adequate legal assistance. Not even considering the application filed by the wife for costs of the proceedings is by itself a good reason to hold that the provisions of sub-rule (2) of Rule 5 of Order 8 of the Civil Procedure Code could not be made applicable to the facts of the present case apart from the allegation that the defendant was a disabled person. the First Appeal Court view, therefore, that by reason of the fact that no written statement was filed the decree for divorce should follow, does not warrant acceptance.
7. It must be re-stated that the Procedural Law is a hand-maid of justice. It cannot overtake nor can it be allowed to overtake to basic necessity to be fair and to judge fairly not only the cause but also the parties involved therein. If, by the mere reason of the failure to file written statement decrees in marital causes were to follow, that should be only in exceptional and clear cases. In the controversy of the present kind that would lead to hazardous result. Court is bound in this jurisdiction to weigh the matters of procedure with the end results that follow. Not as a matter of general rule flowing from the procedural law of pleadings giving rise to the inferences of admission as are enacted by sub-rule (1) of Rule 5 of Order 8 or lawful authority to render a judgment in want of pleadings as are provided by sub-rule (2) of Rule 5 of Order 8, but as a matter of necessity such recourse should be justified. Looking to the consequences that attach to the dissolution of the marriages, only in the exceptional cases resort may be had to these procedural statutory rules. It was not, therefore, right for the Court in want of adequate proof, looking to the allegations in the present case, to proceed to make a decree because of the failure of the defending wife to file written statement.
8. In view of this, the judgment under appeal are clearly erroneous and are unsustainable.
9. Accordingly, the present Appeal is allowed. The Matter is remitted back to the trial Court with a direction to decide the application at Ex. 11 and then to proceed with the trial of the petition and decide the same according to law. As the matter is pending since 1979, Mr. Shah undertakes that on the first date of hearing the appellant-wife would file a written statement. The petition be decided within a period of six months. The parties to appear before the trial Court on March 21, 1983. The amount in deposit in this Court be paid to the appellant-wife. There would be no other order as to costs or maintenance in this appeal, the amount of Rs. 1,500/- being paid in full and final settlement of the costs in this Court as well as in the First Appeal Court, of the wife. On the basis of Ex. 11, the order for maintenance, if at all made, would relate back to the month of February 1983 and the liability of the petitioner-husband would be worked our on that basis. The appeal is allowed with no separate order as to costs. No order on the civil application.
10. Order accordingly.