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Arun Kautik Pawar Vs. Sau Laxmi Arun Pawar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 449 of 1981 with Appeal from Order No. 927 of 1983 with Civil Application Nos. 867
Judge
Reported in1985(2)BomCR619; (1985)87BOMLR670; 1985MhLJ743
ActsHindu Marriage Act, 1955 - Sections 15 and 21; Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13; Limitation Act, 1963 - Sections 5 and 29(3) - Schedule - Article 123
AppellantArun Kautik Pawar;prabhu Premlata Gurpur
RespondentSau Laxmi Arun Pawar;prabhu Subraya Gurpur
Appellant AdvocateY.S. Jahagirdar, Adv. for ;K.J. Abhyankar, Adv. in F.A. 449 of 1981 and ;H.S. Solkar, Adv. and ;Manjula Rao, Adv. in A.O. 927 of 1983
Respondent AdvocateA.J. Pawar, Adv. in F.A. 449 of 1981 and ;H. Suresh, Adv., ;Kishore Jain, Adv. and ;P.N. Tulsian, Adv. in A.O. 927 of 1983
Excerpt:
hindu marriage act (xxv of 1955), sections 21, 23, 4, 15, 21c, 28 - code of civil procedure (v of 1908), order ix, rule 13--limitation act (xxxvi of 1963), sections 29(3), 5--application for setting aside ex parte decree passed under hindu marriage act whether maintainable--provisions of sections 21, 23, 4, 15, 21c and 28 of act xxv of 1955--effect of--whether only appeal lies against ex parte decree and not application for setting it aside--provisions of section 23 whether negative remedy of application for setting aside ex parte decree--omission of reference of application for setting aside ex parte decree in section 15 whether spells out its non-maintainability--court whether has power to condone delay in presenting application for setting aside ex parte decree--application for setting.....p.b. samant, j.1. these two matters arise under the hindu marriage act, 1955 (hereinafter referred to as the act) and raise three questions of law, two of which are common to both. hence they are heard together and are being disposed of by this common judgment.2. to appreciate the questions of law, it is necessary to state the relevant facts in each case. in first appeal no. 449 of 1981, the husband who is the appellant here, had filed a petition for dissolution of marriage against the respondent wife on the ground of desertion and adultery. the marriage was celebrated on may 25, 1972 and the petition was presented on 8th/10th june, 1977. the petition was posted for hearing on march, 21, 1979 when the respondent-wife was absent. the advocate who appeared for her passed purshis stating.....
Judgment:

P.B. Samant, J.

1. These two matters arise under the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) and raise three questions of law, two of which are common to both. Hence they are heard together and are being disposed of by this common judgment.

2. To appreciate the questions of law, it is necessary to state the relevant facts in each case. In First Appeal No. 449 of 1981, the husband who is the appellant here, had filed a petition for dissolution of marriage against the respondent wife on the ground of desertion and adultery. The marriage was celebrated on May 25, 1972 and the petition was presented on 8th/10th June, 1977. The petition was posted for hearing on March, 21, 1979 when the respondent-wife was absent. The Advocate who appeared for her passed purshis stating that he had no instructions from her. The petition was thereafter adjourned to March 23, 1979 for hearing and on that day, an ex parte decree was passed dissolving the marriage. On learning of the decree, the wife filed an application on April 19, 1979 for setting aside the same and the ex parte decree was accordingly set aside. The matter then proceeded to hearing and ultimately the petition was dismissed on January 19, 1981. In the mean while, the husband had planned his second marriage on June 2, 1979. Learning of the same, the wife gave a public notice in a local newspaper on May 30, 1979 stating therein that the marriage between them was subsisting and warning any party from entering into wedlock with her husband. On June 2, 1979, the husband gave a reply to the said notice also through a public notice published in a newspaper alleging that the marriage had been dissolved and that he was free to take a second wife. To this the wife gave a rejoinder by another public notice published on June 3, 1979 stating that the marriage had not been dissolved and that she had made an application for setting aside the ex parte decree dissolving their marriage. However, in spite of these public notices, the husband, is alleged to have undergone a ceremony of another marriage with one Lata, on June 2, 1979.

It is contended on behalf of the appellant husband that there is no provision in the Act for presenting an application for setting aside an ex parte decree was not maintainable. The trial Court could not, therefore, have set aside the said decree and subsequently dismissed the petition for dissolution of the marriage. The second contentions canvassed is that it is necessary to serve the application for setting aside the decree before the husband remarries or at least within the period provided for filing the appeal under section 28 of the Act. In the present case, admittedly the application was not served either before 2-6-1979 which is the date of the alleged second marriage or within 30 days of the ex parte decree which is the period provided for filing the appeal.

3. In appeal from Order No. 927 of 1983 the relevant facts are that the respondent-husband had filed a petition for a decree of dissolution of his marriage with the appellant-wife on the ground of desertion and cruelty. The parties were married in June 1960 and two daughters were born out of the wedlock. The petition for dissolution of the marriage was presented on July 3, 1980. It was fixed for hearing on December 1, 1982. Neither the wife nor her Advocate was present on the said date. An ex parte decree was, therefore, passed on the very day dissolving the marriage. A Notice of Motion for setting aside the decree was taken out on February 10, 1983 and it was served on the respondent-husband on September 17, 1983. The learned Judge dismissed the Motion holding that no satisfactory explanation had been given either for the absence on the date of the decree or for the delay in taking out the Motion. The learned Judge also held that there was a gross unexplained delay in serving the Motion on the husband. In the mean-while, the respondent-husband had contracted a second marriage on February 2, 1983. The learned Judge also gave that as an additional reason for refusing to set aside the decree.

On these facts in addition to the two questions of law which have been raised in First Appeal No. 449 of 1981 above, a further question has been raised viz. whether there is power in Court to condone delay in filing the application for setting aside an ex parte decree.

4. The questions of law which fall to be answered may, therefore, be re-stated as follows:-

(i) Whether an application for setting aside an ex parte decree is maintainable under the Act?

(ii) Whether there is a power in Court to condone delay in presenting such an application?

(iii) Whether it is necessary to serve the application either within the period provided for filing the appeal or before the other spouse remarries.

5. On the first question, our attention is invited to the absence of any provisions in the Act for making an application for setting aside an ex parte decree and also to the provisions contained in sections 4, 15, 21-C and 28 to urge that the Act is a complete Code in itself and hence it is not permissible to resort to the provisions of any other law including the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) to spell out the right to make such application. As against this, the other aside has relied on the provisions of section 21 of the Act to contend that in all matters where the Act is silent, the provisions of the Code would be applicable so long as they are not inconsistent with the provisions of the Act. Since the provisions of Order IX of the Code for setting aside an ex parte decree are not inconsistent with any of the provisions of the Act they are applicable to the proceedings under the Act. Reliance is placed by both sides on various precedents in support of their contentions.

6. Section 4 of the Act ensures its overriding effect over any other law and is couched in the following language :---

'4. Save as otherwise expressly provided in this Act,---

(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

An examination of the language of the section makes it clear that the overriding effect of the Act is only in respect of such provisions of the other law which are not otherwise expressly saved by the Act. In other words, where the Act expressly provides that the provisions of any other law will be applicable then notwithstanding what is contained in section 4, such provisions will be operative. It is in this context that the provisions of section 21 of the Act have to be read. Section 21 reads as follows :---

'21. 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.'

These provisions are wide enough to extend the provision of the Code to all matters which are not regulated by the Act so long as the provisions of the Code are not inconsistent with any of the provisions of the Act or the rules made by the High Court under the Act. All that, therefore, is necessary in the present case is to see whether the relevant provisions of Order IX of the Code providing for setting aside an ex parte decree are inconsistent with any of the provisions of the Act or the Rules made by the High Court. This High Court has made Rules under the Act but admittedly they are silent on the subject and hence they may conveniently be kept out of the present discussion.

7. As regards the provisions of the Act, reliance is placed on section 15, 21-C and 28 to urge that these provisions will show firstly that the Act is a Code complete in itself, and secondly that the legislature did not intend to provide for an application for setting aside an ex parte decree. Hence it is urged that to read such a provision would be inconsistent with the scheme of the Act. To support this contention, it is vehemently submitted that a decree passed under the Act whether ex parte or otherwise, is different in nature from other decrees. Section 23(1) of the Act enjoins upon a Court not to pass a decree including an ex parte unless the Court is satisfied with the matter stated therein. Such a requirement is not a condition precedent for passing other decrees. Hence it is contended that even an ex parte decree under the Act being a well considered decree, the Legislature has deliberately not provided for its being set aside by the device of an application made for the purpose. Had the Legislature intended to make such provision, it would have easily done so as it has expressly provided for an appeal against all decree including an ex parte decree. A more weighty submission in support of this contention is based on the provisions of section 15 of the Act. It is contended that the said section in so many words declares that it would be lawful for either party to the marriage to marry again no sooner the marriage is dissolved by a decree of divorce where there is no right of appeal against the decree, and if the time for appealing has expired without an appeal being filed or the appeal if placed on the fact that by an amendment of the said section the proviso to the said section was deleted. That proviso had made it incumbent on the parties to wait for a period of one year after the passing of the decree. This shows, according to this contention, that the legislature did not contemplate any other proceeding to set aside the decree and did not want to hold up the second marriage on account of such proceedings. If the legislature intended to make the provisions of Order IX, Rule 13 of the Code applicable to the proceeding under the Act, then it could not have been oblivious to the fact that it had also to make the necessary provision for postponing the second marriage till after the period for filing such an application was over or where the application had been filed, it was dismissed. The fact that the legislature made the necessary provisions vis-a-vis the appeal conclusively show the intention of the legislature to the contrary. It was further contended that what section 21 of the Act has made applicable to the proceedings under the Act are the procedural and not the substantive provisions of the Code. Rules 8 and 13 of Order IX of the Code are substantive and for that purpose a reliance was placed on a decision reported in A.I.R. 1953 Nag 153 Sitaram Khandu v. Bapurao Mukundrao and others.

8. There is no doubt that whereas there is a provision made in section 28 of the Act for appeal against all decrees which will also include ex parte decrees with the consequent provisions for the period within which to file such appeal, there is no provision made in the Act similar to Rule 13 of Order IX of the Code for an application for setting aside an ex parte decree. It is also true that whereas section 15 of the Act states that the parties to the marriage are free to marry again if no appeal is filed and where the appeal if filed is dismissed, it does not make a similar provision vis-a-vis an application for setting aside an ex parte decree. It will however be difficult to hold that on that account the provisions of Order IX, Rule 13 of the Code are made inapplicable to the proceedings under the Act. This is so because the legislature by section 21 of the Act has in express terms made all the provisions of the Code applicable to the proceedings under the Act and hence there was no need to specify any particular provision of the Code including that of Order IX, Rule 13 as being applicable to them. If the argument to the contrary is accepted, then for example, Rules 8 and 9 or Order IX of the Code would also be inapplicable to the proceedings under the Act, and a petition under the Act would not be dismissible for default in appearance of the petitioner and if dismissed would not be restorable on sufficient cause being shown by the petitioner. What is, therefore, necessary to find out in the face of section 21 is not whether there is an omission to incorporate in the Act any of the provisions of the Code, but whether the provisions of the Code which are pressed in service are contrary to or inconsistent with the scheme of the Act. To contend that the provision of Order IX, Rule 13 are contrary to the scheme of the Act, a reliance is placed, as stated earlier, firstly on the provisions of section 23(1) of the Act which enjoins upon the Court to pass a decree only after the requirements stated therein are satisfied, and secondly on the fact that there is no requirement of a waiting period before the second marriage is contracted, vis-a-vis an application for setting aside an ex parte decree as there is vis-a-vis an appeal against such a decree contained in section 15 of the Act. As regards the provisions of section 23(1) of the Act, they lay down nothing more than the requirements for passing a valid decree under the Act which requirements are spelt out by the scheme of the Act itself. The Hindu Marriage Act like any other marriage law provides both for marriage and lays down certain conditions for the same. Unless the said conditions are satisfied, there can be no valid marriage nor can there be a valid decree of separation or dissolution of the marriage. The Act deals with a fundamental and sacred institution of the society. Neither the marriage nor its dissolution is a matter of importance only to the parties to the marriage. It has social consequence as it affect person other than the spouses and also the social fabric. The passing of the decrees either of separation or dissolution of the marriage, therefore, by their very nature solemn acts and cannot be treated on par with the other decrees which concern only the parties to the litigation. It is for this reason that the Legislature has cast an obligation on the Court to see that the relevant requirements are strictly satisfied and that the decrees are not passed for the asking. This provision however cannot be relied on to negative a remedy which may otherwise be available to a party to save the marriage or to prevent it from breaking. On the other hand, these provisions should impel the Court to preserve or fall back upon as many remedies as there may be to keep the matrimonial bond alive and to prevent it from breaking. In any case, on these considerations, no Court would set its face against a remedy for saving the marriage, if the remedy is otherwise available. Far from therefore the provisions of section 23(1) of the Act negativing the applicability of Order IX, Rule 13 of the Code, they discountenance such an approach.

9. The omission in section 15 of the Act to any reference to the application for setting aside an ex parte decree, also does not by itself negative the applicability of Order IX, Rule 13 of the Code to the proceedings under the Act. In the first instance, there is nothing inconsistent between the provisions of Rule 13 of Order IX of the Code and any of the provision of the Act. There is, therefore, no reason to curtail the sweep of section 21 of the Act by excluding the said provisions of the Code. Secondly, it is legitimate to presume that the Legislature did not think it necessary to make a reference to the application for setting aside an ex parte decree under section 15 of the Act, for the obvious reason that while enacting the provision of section 15, the Legislature had in mind only the stage after the decree on contest was passed. Since the proceedings with regard to an ex parte decree were taken care of by section 21 of the Act, there was no need to make provisions in respect to them in section 15 as well. The proceedings to set aside an ex parte decree are part of the original proceedings and in section 15 the Legislature was concerned with appellate proceedings only.

10. We are also of the view that, had the Legislature intended the exclusion of the provisions of Order IX, Rule 13, the Legislature would have done as expressly. For the Legislature cannot be said to be unmindful of the said provisions of the Code when it made all the provisions of the Code applicable by enacting section 21 of the Act so long as they were not inconsistent with any of the provisions of the Act. We have already held above that no provisions of the Act has been shown to us to be contrary to or inconsistent with the said provisions of the Code.

11. We may now examine the authorities cited at the bar. In Anjan Kumar Kataki v. Smt. Minakshi Sarma, the learned Single Judge has taken the view that since sub-section (1) of section 28 of the Act provides that all decree made by the Court in any proceeding under the Act are appealable and since the decree would include ex parte decrees, an appeal will lie against an ex parte decree. Hence the application under Order IX, Rule 13 of the Code for setting aside an ex parte decree is not maintainable. This is the only direct authority supporting the view that Order IX, Rule 13 is not applicable to the proceedings under the Act. With utmost respect to the learned Judge, we are unable to agree with his reasoning. Merely because all decrees passed under the Act are appealable it cannot be said that ex parte decree is not liable to be set aside by an application made for the purpose. Even under the Code all decree including ex parte decree are appealable under section 96, and yet there is a provision made in Order Ix, Rule 13 for an application for setting aside an ex parte decree.

In A.I.R. 1961 Bom 225 Sunanda W/o Gundopant Ashtekar v. Gundopant Bandopant Ashtekar, the learned Single Judge of this Court was called upon to consider whether is similar circumstance, the provisions of Order IX, Rule 13 of the Code were available for setting aside an ex parte decree, and the learned Judge has answered the question in the affirmative. It must however be conceded that before the learned Judge the only question canvassed was whether in the absence of the rules made by the High Court, the provisions of the Code were applicable under section 21 of the Act. With respect, the learned Judge there rightly held that even assuming that the High Court had made no rule, that was no bar to the applicability of the Code to the proceedings under the Act.

In A.I.R. 1966 Mys 1, Tirukappa v. Kamalamma, the question involved was of the applicability of Rules 8 and 9 of Order IX of the Code and not of Rule 13 of the said Order. There the husband had filed a matrimonial petition for judicial separation under the Act. The petition was dismissed since the petition was absent and his Advocate applied for permission to retire for want of instructions. Thereafter, the husband filed an application under Rule 9 of Order IX of the Code for setting aside of the order of dismissal. He also preferred an appeal against the said order. The Court there held that the provisions of Rules 8 and 9 of Order IX were not in conflict with or repugnant to any of the provisions of the Act or to the general policy underlying the same. They were, therefore, applicable to the proceedings under the Act. The Court further held that since the remedy under Rule 9 of Order IX was available to the husband and since the husband had chosen to avail himself of the remedy, the appeal was not maintainable.

In : AIR1985Delhi40 Rishi Dev Anand v. Smt. Devinder Kaur, the husband had obtained an ex parte decree for divorce under the Act and thereafter the wife moved an application under Order IX, Rule 13 of the Code for setting aside that decree. During its pendency, she moved an application under section 24 of the Act seeking maintenance pendente lite and expenses of the proceedings. An order for maintenance pendente lite and for litigation was passed by the trial Court. Against that order, the husband preferred a revision. During the pendency of the revision, the application for setting aside the ex parte decree was dismissed. However, since the earlier order survived and it was passed rejecting the contention that Order, Rule 13 of the Code had no application to the proceedings under the Act, he said question fell directly for consideration before the High Court. The Court held that under the Act no provision had been made for setting aside an ex parte decree and hence necessarily a recourse has to be taken to the provisions of the Code for that purpose. One of the arguments before the High Court was also that the proceedings for setting aside an ex parte decree were not proceedings under the Act. The Court negatived that contention holding that the said proceedings were also proceedings under the Act.

Coming now to the decisions of the Supreme Court, we have a decision reported in A.I.R. 1976 S.C. 581 Smt. Chandra Mohini Srivantava v. Shri Avinash Prasad Srivastava and another, which is helpful to a great extent for a proper construction of section 15 of the Act and for answering the contention based on the absence of a reference to the application for setting aside ex parte in the said section. The facts in that case were that a suit was brought by the husband for dissolution of the marriage and for grant a decree of divorce. In the alternative, he had also prayed for a decree of judicial separation. The petition was dismissed by the trial Court. The husband carried an appeal to High Court which allowed it. The wife preferred a special leave petition and the Supreme Court granted the same. At the time of the final hearing of the special leave petition, an application was filed by the husband praying for the revocation of the special leave granted to the wife on the ground that though the decree dissolving the marriage was passed on January 7, 1964 the wife had presented the special leave petition on April 7, 1964. The wife had not conveyed to him that she intending to challenge the decisions of the High Court nor had she prayed for stay of the operation of the order of the High Court. He, therefore, believed that she had submitted to the order of the High Court and married another woman on July 2, 1964. The special leave was granted by the Court on August 25, 1964 and the petition was served on him on September 9, 1964. He had also a son born of the second marriage on May 20, 1965, that is, before, the special leave petition came up for final hearing. He, therefore, contended that because of the negligence of the wife in not informing him of her intention to prefer the special leave petition and of her filing the same, he was put in a jeopardy and hence the Court should revoke the special leave. While dealing with this application the Court made the following observation in para 7 of the judgment which are relevant for purpose :---

'7. We are of opinion that special leave cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act inter alia provides that all decree and orders made by the Court in any proceedings under the Act may be appealed from under any law for the time being in force, as it they were decree and others of the Court made in the exercise of its original civil jurisdiction. Section 15 provides that when a marriage had been dissolved by a decree of divorce and there is no right of appeal against the decree, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal had been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.' These two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such a right of appeal, the time for filing appeal has expired without an appeal having been presented, or if an appeal has been presented it has been dismissed. It is true that section 15 does not in terms apply to a case of an application for special leave to this Court. Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree and thus take away from the losing party the chance of presenting an application for special leave. Even though section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from the decree of the High Court to this Court. In this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a special leave petition to this Court. If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground. We need not consider the question as to whether the child born to the new wife on may 20, 1965 would be legitimate or not, except to say that in such a situation section 16 of the Act may come to the aid of the new child. We cannot, therefore, revoke the special leave on the grounds put forward on behalf of the first respondent and hereby dismiss his application for revocation of special leave.'

Another decision of the Supreme Court : [1978]3SCR922 Smt. Lila Gupta Narain and others, further resolves the difficulty that may be encountered by taking the view that we are taking here. In that case, the facts were that both the husband and wife had filed suits against each other for a decree of divorce. These suits ended in a decree of divorce on April 8, 1963, and soon thereafter on May 25, 1963, the husband contracted a second marriage with Smt. Lila Gupta who was the appellant before the Supreme Court. Unfortunately, the husband expired on May 7, 1965 and disputes arose in certain revenue proceedings between the appellant claiming as a widow of the decreased and the respondent who were brothers and brother's sons of the deceased about succession to some properties. The contention raised before the Court was that the appellant's marriage with the deceased was void having been contracted in violation of the provisions contained in the proviso to section 15 of the Act as it stood then. It may be recalled that the said proviso had made it unlawful for the respective parties to marry again unless at the date of such marriage at least one year had elapsed from the date of the decree in the Court of the first instance. Admittedly in that case, the second marriage with the appellant was contracted by the deceased within less man two months of the decree. While answering the question, the Court held as follows :

'A marriage contracted in contravention of or violation of the proviso to section 15 is not void but merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage. Even though the proviso is couched in a language prohibiting a certain thing being done, that by itself is not sufficient to treat the marriage contracted in contravention of it as void. A mere glance at section 15 of the Act and section 57 of the Indian Divorce Act would clearly show that the provisions are not in pari materia. The relevant provisions are so materially different, that the decision interpreting section 57 cannot be bodily followed to hold that the same consequences should if the proviso to section 15 is contravened. Examining the matter from all possible angles and keeping in view the facts that the scheme of the Act provides for treating certain marriages void and simultaneously some marriage which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to section 15, it cannot be said that such marriage would be void. As the marriage, even though in contravention of the provisions of section 15, is not void, the women cannot be denied the status of wife and, therefore, the widow of deceased and it that capacity as an heir to him.'

12. That leaves us with the last argument on the subject viz. that the provisions of Rule 13 of Order IX being substantive, they are not applicable to the proceedings under the Code. As stated earlier, for this proposition reliance is placed on A.I.R. 1953 Nag 153 (supra). In that case what fell for decision was Rule 8 of the Order and not Rule 13 while considering whether section 141 of the Code will apply to proceedings under section 144 thereof. Even assuming that Rule 13 is also a substantive provision, section 21 of the Act makes no distinction between procedural and substantive rules of the Code while making it applicable to the proceedings under the Act. Hence we fail to understand the relevance of the said decision.

13. Thus an examination of the authorities shows that the omission of a reference to the application for setting aside an ex parte decree in section 15 of the Act does not by itself indicate that such application is not maintainable. Hence it will have to be held that the provisions of Order IX, Rule 13 of the Code will be applicable to the proceedings under the Act.

14. Coming now to the second point viz. whether there is a power to condone the delay in presenting such applications, the contention that there is no such power is based on the provisions of sub-section (3) of section 29 of the Limitation Act, 1963 (hereinafter referred to as the Limitation Act). The said sub-section reads as follows :---

'29(1) .......... ............(2) .......... ............ (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law'

Reliance is also placed in this connection to a decision of the Delhi High Court reported in A.I.R. 1979 SC 22 Chander Dev Chadha v. Smt. Rani Bala, where the learned Judges have held that the aforesaid provision contained in the Limitation Act is restricted to suits and proceedings under the Hindu Marriage Act and it does not apply to the appeals filed under the Act. With utmost respect to the learned Judges, we are of the view that the prohibition does not apply even to suits and proceedings under the Act and to that extent we are in respectful disagreement with the view taken by them in the said decision. According to us, the said provisions themselves makes it clear that if the law relating to marriage and divorce provides otherwise, then the prohibition contained therein will not apply to any suit other proceeding under such law. We have already interpreted section 21 of the Act viz. the Hindu Marriage Act and have held that Order IX, Rule 13 of the Code is applicable to the proceedings under the Act. This in turn means that Article 123 as well as section 5 of the Limitation Act are applicable to the suits and other proceedings under the Act. The bar contained in sub-section (3) of section 29 of the Limitation Act applies only to suits or proceedings under such law of marriage and divorce where there is no provisions such as section 21 of the Act. To hold otherwise would mean that although Order IX, Rule of 13 of the Code is applicable, there is no limitation for making an application for setting aside an ex parte decree under the Act since Article 123 of the Limitation Act would not apply to such an application. This would indeed be an insufferable situation. If further Article 123 of the Limitation Act is applicable, there is no reason why all other provisions including section 5 of the Limitation Act should not become applicable. Thus we are of the view that the Court has power under section 5 of the Limitation Act, to condone the delay in making such application.

15. The last question is whether it is necessary to serve the application for setting aside an ex parte decree within 30 days of the decree which is the period for filing an appeal under the Act or before the other spouse remarries. This question is raised more in the context of the consequences which flow from the second marriage contracted after the expiry of the period of appeal as laid down in section 15 of the Act. There is really no need to treat the second marriage contracted after the period of appeal is over differently from the marriage contracted after the period for filing an application for setting aside an ex parte decree is over. Either the application for setting aside an ex parte decree is according to law in time or not. If the Court comes to the conclusion that it is in time after giving the benefit of the provisions of section 5 of the Limitation Act, then it is immaterial whether the application was served within 30 days of the ex parte decree or before the other spouse remarried. Hence we are of the view that so long as an application is filed in time as provided under Article 123 read with section 5 of the Limitation Act, the application would be maintainable not withstanding the fact that it is filled beyond 30 days of the ex parte decree or after the spouse remarries.

16. In view of our above answer to the questions of law referred to us, First Appeal No. 449 of 1981 will not go back to the learned Single Judge for decision on merits on other points. There will be no costs in this appeal as far as this reference is concerned.

17. As regards Appeal From Order No. 927 of 1983 with Cross objections and Civil Application No. 867 of 1984 and 1676 of 1984, we remand the matters to the learned Single Judge for decision on factual merits. While doing so we are aware that the learned Judge has requested us also to decide the appeal on facts. With respects, we are unable to certain this request for obvious reasons.

In the result, Appeal from Order No. 927 of 1983 with Cross Objections and Civil Application Nos. 867 of 1984 and 1676 of 1984 will not go back to the learned Single Judge for decision on merits on facts. There will be no costs in this appeal as far as this reference is concerned.

18. Shri Suresh, the learned Counsel appearing for the respondent in Appeal from Order No. 927 of 1983 applies for leave to appeal to the Supreme Court. According to us, the Supreme Court has implicity decided the question of law involved against the respondent as has been pointed out by us by referring the decisions which we have discussed in the body of the judgment. Hence there is no need to grant any leave to appeal as prayed for.

The application for leave to appeal to the Supreme Court is, therefore, rejected.


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