Sharad Manohar, J.
1. But for the two questions of law, though somewhat technical, raised by Mr. Suresh the learned Counsel for the respondent in this appeal, I was inclined to allow the appeal and to set aside the ex parte decree obtained by the respondent-husband against the appellant-wife in the circumstances which will be presently mentioned. But the two questions raised by Mr. Suresh are of grave importance though they relate to procedural law. Hence I am inclined to refer the said two questions for the consideration of the Division Bench.
The questions arise in the context of the following facts:
2. The appellant before me was the respondent in the matrimonial petition filed by her husband (present respondent ) in the City Civil Court. For the sake of convenience the parties will be referred to with their position in the trial Court meaning thereby that the husband will be referred to as the petitioner, husband and to as the respondent-wife. The petitioner husband the respondent-wife were married in the year 1960. They got two daughters out of the marriage. The disputes between them started in October 1979. On 30-7-1980 the matrimonial petition for divorce was filed by petitioner-husband against the wife on the grounds of---
It is noteworthy that the respondent-wife did not make any application for maintenance pendente lite in the said matrimonial proceedings nor has she applied for costs of the litigation; but she duly filed her written statement in the said proceedings on 10-2-1982. However, when the said petition came up for hearing on 1-12-1982, the respondent-wife was absent and hence an ex parte decree for divorce was passed in favour of the petitioner-husband against respondent-wife. The petitioner-husband waited for nearly two months thereafter. On 5-2-1983 he contracted a re-marriage with a second spouse who, it is alleged, resides at Banglore. The marriage also is alleged to have taken place at Banglore.
3. On 10-2-1983, the respondent wife took out a Notice of Motion for setting aside the ex parte decree. Evidently the application for setting aside the ex parte decree, if at all one could be filed, only could be filed within 30 days from 1-2-1982, assuming that the provisions of Article 123 of the Limitation Act applied; hence there was a manifest delay in filing the said application.
However, there was even further delay; the Notice of Motion was served upon the petitioner- husband as late a son 17-9-1983.
4. On 28-10-1983, a second Notice of Motion was taken out by the respondent-wife for an injunction restraining the petitioner-husband from bringing his so-called second wife in the matrimonial house. On 29-10-1983, the injunction was granted by the trial Court as per the said Notice of Motion.
5. In reply to the said Notice of Motion for setting aside the ex parte decree three contentions were urged by the petitioner-husband viz.:---
(a) that the respondent wife had no sufficient cause for remaining absent on the date of hearing of the matrimonial petition;
(b) that the delay in making the application for setting aside the ex parte decree was not justified by any sufficient cause of by any legitimate reasons;
(c) that the petitioner-husband had already married a second wife after the period of limitation for setting aside the ex parte decree or for filing the appeal against the ex parte decree.
It may be mentioned here that the application for a certified copy of the ex parte decree for divorce was made by respondent wife on 3-2-1983 that is to say clearly after the period of limitation for filing the appeal was over. The contention of the petitioner-husband, therefore, was that as per the right conferred upon him by section 15 of the Hindu Marriage Act to contract a second marriage after the period of limitation for appeal was over he had married a second wife and hence ex parte decree could not be or should not be set aside. The trial Court was satisfied that the delay in filing of the application or setting aside the ex pare decree had not been duly explained by the respondent-wife. Hence the Notice of Motion was dismissed by the trial Court.
6. Since I am referring the appeal itself to the Division Bench, it is unnecessary for me to mention the reasons why I was initially inclined to allow the appeal; but I am indicating my own reasons in that behalf. The main ground upon which the Notice of Motion was dismissed by the trial Court was that the delay in making the application for setting aside the ex parte decree was not duly explained by respondent-wife. In particular it was held that though the allegation of negligence was made by respondent wife against her own learned Advocate, no affidavit was filed by the learned Advocate as such or on his behalf by his clerk as such. It appears that this Notice of Motion was argued by Mr. Navin Parikh. It was not he who was appearing for the respondent-wife at the time when the ex parte decree was passed and so far as ex parte decree was concerned, there was some explicable reason for the learned Advocate to remain absent. In the first place his office had caught fire and thereafter certain illness took place in his family for which he was required to go out of Bombay. He tried but was not successful in taking the requisite proceeding for setting aside the ex parte decree in due course from the place of his sojourn outside Bombay, by remote control as it were. Ultimately instructions had to be given by respondent wife to Shri Navin Parikh, Advocate to take out the Notice of Motion for setting aside the ex parte decree though after some delay. But further delay was caused by the office of Shri Navin Parikh, Advocate himself. It is true that Shri Navin Parikh himself argued the Notice of Motion on behalf of the respondent-wife. In fact he had even the affidavit sworn by his client, respondent-wife, herself in which it was stated that there was negligence on his part in taking out these proceedings. However, no statement was made by Mr. Navin Parikh himself to the Court about the correctness or veracity of this position. There were also other persons at whose doorstep the blame was sought to be brought for the delay; but even their affidavits were to filed. In view of these short-comings, the trial Court was not satisfied about the respondent-wife's plea of heaving sufficient reasons for condonation of delay.
7. Before me the appeal was argued by Mr. Subnis the learned Counsel for the appellant. Mr. Navani Parikh did not appear before me; but when I expressed my surprise at the fact that neither any affidavit was filed nor any statement was made by Mr. Navin Parikh in support of the respondent-wife before the trial Court, Mr. Navin Parikh appeared personally before me and made a frank statement before the Court that the statement made by resplendent-wife in her affidavit in support of the Notice of Motion was a correct statement and that there did exist some negligence on the part of his office in the matter of taking out the Notice of Motion immediately. In this view of the matter, the main reason that the learned Judge was inclined not to accept the respondent-wife's plea for condonation of delay more or less disappeared.
8. But there was another reason why I was inclined to allow this appeal and send back the matter to the trial Court for hearing the suit on merits. A categorical statement was made before me by Mr. Subnis the learned Counsel for the respondent-wife that the second marriage set up by the petitioner was a hoax. He pointed out that the addresses of the alleged second wife, of her brother, of the priest who solemnised the marriage were mentioned by the petitioner-husband in the affidavit in reply in the lower Court; that the respondent-wife had sent letters to all these persons at the said Banglore addresses mentioned by the petitioner-husband; but all the letters had come back. It is sought to be argued before me by Mr. Tulsiani, the learned Advocate appearing for the petitioner-husband that the petitioner-husband's second wife and her brother had subsequently changed their addresses. But Mr. Sabnis pointed out that a attempt was made to contract these persons even at the alleged changed address and even on the alleged new address they were not to be found at all. Under these circumstances, I asked Mr. Suresh, the learned Counsel appearing for the petitioner-husband on 14-6-84, when this appeal was being heard, whether it would be possible for his client to keep his second wife, her brother and the priest, who performed the marriage, present in the Court. Mr. Suresh agreed and he even took time to do the needful in that behalf. Initially time for two weeks was taken. Thereafter that time was extended till 9th July, 1984. Still none of the persons was kept present in the Court. Not only this, but Mr. Suresh frankly stated to the Court that the petitioner-husband was not able to keep his second wife or her brother or even the priest who performed the marriage present in this Court at all. At one time I had even suggested that I would be inclined to issue summons to them if any application in that behalf was made; but no inclination was shown to accept this help from the Court. In these circumstances, there is every reason to hold that the arguments advanced by Mr. Sabnis that the plea of the second marriage was raised by the petitioner-husband only with a view to defeat the application for setting aside the ex-parte decree.
Whatever that might be, in the peculiar circumstances of the case I was inclined to allow the appeal and to set aside the ex parte decree so that parties should have their dispute decided on merits by leading evidence at their disposal.
9. However, the other two points raised by Mr. Suresh in support of his contentions that the present appeal is not maintainable are of sufficiently grave importance.
The first point urged by him was that under the Hindu Marriage Act, the proceeding for setting aside an ex parte decree of divorce was not contemplated and secondly, he contended that even assuming that the proceeding in the nature of an application for setting aside an ex parte decree as provided for by the Order 9, Rule 13 of the Civil Procedure Code can be contemplated, particularly having regard to section 21 of the Hindu Marriage Act, still there exist no provision in the Hindu Marriage Act analogous to section 5 of the Limitation Act for condonation of the delay made by the party concerned for filing such an application and hence by virtue of section 29(3) of the Limitation Act, the Notice of Motion for setting aside the ex parte decree which admittedly made after the lapse of limitation, provided by Article 123 of the Limitation Act must be deemed not to be maintainable and hence even if the trial Court wanted to condone the delay it would have had no jurisdiction to do so.
10. I will briefly indicate the arguments advanced by Mr. Suresh in this behalf. At the outset he invited my attention to section 15 of the said Act and pointed out that a right vested in the petitioner to re-marry after the period of appeal against a decree for divorce has expired. The section, as such, does not make any distinction between decree for divorce passed in a normal manner after hearing both the parties and decree for divorce passed ex parte. The contention, therefore, is that a decree for divorce ex parte is, in the first place, not contemplated at all for the purpose of an appeal. It was contended that under section 96(2) of the Civil Procedure Code there was specific provision for an appeal against an ex parte decree. No such corresponding provision is to be found under section 28 of the Hindu Marriage Act which provides for an appeal against decree for divorce. Further, there is no provision under section 15 that just as there is time limit for decree holder spouse desiring to contract a second marriage, to wait until the limitation period for appeal is over, there is no such waiting period mentioned in connection with the time that would be required by the judgment debtor-spouse as period of limitation for setting aside the ex parte decree. There is a statutory restraint against the second marriage until the expiry of the period of limitation for the appeal; but there is no similar express statutory restraint until the expiry of the period of limitation for setting aside the ex parte decree. The argument is that no such waiting period vis-a-vis the setting aside the ex parte decree is mentioned because no proceeding for setting aside the ex parte decree is contemplated. Section 21 of the Hindu Marriage Act no doubt lays down that the procedure to be followed by the Court in deciding the petition under the Act would be regulated by the Civil Procedure Code. But to this general rule, the section itself provides a two-fold constraint and qualification. Firstly, the section itself provides that the Civil Procedures Code will apply to such proceedings, but only subject to the other provisions contained in the Act and subject to the rules made by the High Court. It is common ground that no rules have been made by the High Court as such; but reliance is placed by Mr. Suresh on the provisions of the said section 15 of the Act itself for the purpose of contending that an application of Order 9, Rule 13 of the Civil Procedure Code is excluded by necessary implication. Secondly, it is contended that the application of the Civil Procedures Code is contemplated only as far 'as may be'. The argument is that the right is specifically conferred upon the decree holder's spouse to contract the second marriage immediately after the appeal against the decree is decided or after the period of limitation of the appeal has expired. The contention is that if the decree-holder husband was deemed to be having no right to remarry until the application for setting aside the ex parte decree was disposed of or until the period of limitation for such application was over, then the provision to that effect would have been specifically made in said section 15. Argument is that such provision cannot be read into the section.
11. This is Mr. Suresh's first argument. There is another aspect of the same argument based upon the provision of section 29 of the Limitation Act although the said section 29 is relied upon by Mr. Suresh also for his second argument which will be referred to presently. The other aspect of the first argument is that under section 29 of the Limitation Act section 5 of the said Act which gives power to the Court to condone the delay, has no application to the proceedings under the Hindu Marriage Act. The Hindu Marriage Act by itself does not give any power to the Court to condone the delay in making any such application. Normally, if an application under Order 9, Rule 13 was contemplated by the Hindu Marriage Act power to condone the delay in making such application would have been conferred upon the Court by the Act itself. There are several statutes which provide for period of limitation and also provide for power to the Court or to the Authority for condoning the delay. The fact that no such power has been conferred argues for the proposition that no such application for setting aside the ex parte decree is contemplated by the Hindu Marriage Act at all.
12. These were the arguments advanced by Mr. Suresh on his first technical point of law urged by him. But as I see section 15 of the Hindu Marriage Act, I find some further difficulty in that connection which may perhaps support the contention of Mr. Suresh. Under section 15 of the Act two kinds of divorce decrees are contemplated---
(a) A decree for divorce against which an appeal lies.
(b) A decree for divorce against which no appeal lies.
I asked both the learned Counsel as to which was a decree for divorce against which no appeal lay. Mr. Sabnis tried to point out that a consent decree for which a divorce is now provided by the Hindu Marriage Act is something against which no appeal was maintainable. He would have been right if such contemplation of the said two kinds of the decrees was the result of any amendment of said section 15 consequent upon enactment of the provision for decree for divorce by consent made in the year 1976. But section 15 of the Hindu Marriage Act has remained as it is even after the provision for divorce by consent was made under section 13-B of the Act. Contemplation of the decree for divorce against which no appeal lies was there even before the provisions for a decree for divorce by consent was made. Hence it is not an answer to my above-mentioned question that a consent decree was the decree contemplated by section 15 against which no appeal lay. If this is the position then it requires consideration as to whether an ex parte decree was not the one which was within the contemplation of said section 15 of the Hindu Marriage Act as an unappealable decree. Some support to this argument is received from the legal position that under section 96(2) of the Civil Procedure Code an ex parte decree can be appealed against and no corresponding provision is to be found in the Hindu Marriage Act in that behalf.
13. The argument, therefore, is that if the legislature did not intend to give any right to the aggrieved party to appeal against an ex parte decree, similar intention must be deemed to have been entertained by the legislature not to give any right to the aggrieved spouse to take out proceedings under Order 9, Rule 13 for setting aside the ex parte decree. The absence of reference to such proceedings, it is contended, supports this inference.
This much above is the first point relating to technical objection to these proceedings.
14. The second point urged by Mr. Suresh in support of his contention that the Notice of Motion itself was not competent is based upon the provisions of section 29(3) of the Limitation Act. Section 29(3) of the Limitation Act runs as follows :---
'(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.'
Mr. Suresh contends, with evident force, that nothing in the Limitation Act can apply to the petition for divorce filed under the Hindu Marriage Act. Neither the provision for limitation contained in section 3 nor the one for condonation of delay contained in section 5 of the said Act will, therefore, apply to an appeal under this Hindu Marriage Act. But so far as limitation for appeal is concerned, section 28(4) of the Hindu Marriage Act itself provides for a period of limitation for the appeal; this provision more or less corresponds with section 3 of the Limitation Act; but there is no provision corresponding to section 5 of the Limitation Act to be found in the Hindu Marriage Act. Now a question may arise as to whether this Court may be having jurisdiction to entertain an appeal under the Hindu Marriage Act, if it is filed beyond the period of limitation. But this is not the question with which we are concerned in this appeal. The appoint is that, in the first instance, there is no provision under the Hindu Marriage Act corresponding to Order 9, Rule 13 of the Civil Procedure Code enabling the Court to set aside an ex parte decree upon the application made by the aggrieved party. But assuming that such a provision can be called out by virtue of the provision of section 21 of the Act, still the question would be as to what would be the period of limitation for the same. But argument can be legitimately advanced that Article 123, which is the relevant article will not apply because the entire Limitation Act itself is made inapplicable. But even assuming that Article 123 of the Limitation Act applies to such provisions, the fact remains that section 5 of the Limitation Act is specifically excluded from the operation of the Hindu Marriage Act. The question, therefore, arises as to whether an application made by the defendant against whom an ex parte decree for divorce is passed can make an application to the Court for condonation of delay in filing the application for setting aside the ex parte decree. The argument is that the defendant cannot do so unless he or she relies upon the provision of section 5 of the Limitation Act and provisions of this section are specifically taken out of the purview of the Hindu Marriage Act by said section 29(3) of the Limitation Act.
15. I am of the view that both the above questions raised by Mr. Suresh are of grave importance and they may have for reaching effects and repercussions. It would be, therefore, in the fitness of things that both thee questions are decided by a Larger Bench of this Court.
16. Mr. Sabnis for the respondent-wife contended that only these two questions should be referred to the Division Bench and the appeal should be retained for hearing before me after these questions have been decided by the Division Bench. I do not see any particular reason for doing so. I have already indicated my opinion as regards the respondent wife's right to have the petition decided on merits after hearing her. I am sure the Division Bench will take into account the opinion expressed by me. Moreover, if the Division Bench is of the opinion that after the two said questions are decided by the Division Bench it is necessary to decide the said question and further the larger Bench is of the opinion that the appeal should be decided finally be me. I have no doubt that an appropriate order in that behalf will be passed by the Large Bench.
17. The office is, therefore, directed to place the papers of this appeal before the learned Chief Justice for the appeal being placed for hearing before an appropriate Large Bench.
The parties will be at liberty to move the Division Bench for an earlier hearing of the appeal in view of the peculiar facts of this case.