V.B. Raju, J.
1. The applicant, who was defendant in matrimonial proceedings under the Baroda Hindu Nibandh and against whom a decree nisi had been passed for divorce, gave an application under para 7 of the 7th Schedule to the Baroda Hindu Nibandh, objecting to making final the decree nisi, but his application was rejected by the learned Civil Judge, Senior Division Mehsana on the ground that an application under para 7 of the 7 Schedule to the Baroda Hindu Nibandh which is taken from Section 16 of the Indian Divorce Act could only be made by a person who is not party to the original proceedings and could not be made by the defendant himself. On this ground the application was rejected.
In revision it is contended that the rejection of the application on such a ground was a material irregularity in the exercise of jurisdiction. The judgment of the learned Judge was based only on certain decisions of some High Courts on Section 16 of the Indian Divorce Act in particular on the decision in Harrietta A. King v. James S. King I.L.R. 6 Bombay 416 which was a decision on the construction of Section 16 of the Indian Divorce Act. But it would not be proper to consider the rulings on the scope of Section 16 of the Indian Divorce Act because in the Indian Divorce Act there is a provision in Section 7 which is as follows:
Subject to the provisions contained in this Act the High Courts and District Courts shall in all suits and proceedings here under act and give relief on principles and rules which in the opinion of the said Courts are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief
There is no such provision in the Baroda Hindu Nibandh. It is therefore improper and useless to refer to the decision of High Courts on the Indian Divorce Act and the cases on Section 7 of the English Matrimonial Causes Act (23 and 24 Vic. C. 144) would therefore be in fact misleading and might lead to a misconstruction of the language of the Baroda Hindu Nibandh. In fact if we turn to the case in I.L.R. 6 Bombay 416 we find that although one of the parties was refused permission to intervene in the proceedings the Court refused to make the decree absolute but took upon itself the duty to make an inquiry into the allegations made by one of the parties. In fact the Court took upon itself the task of inquiring into the allegations made by one of the parties who was not allowed to appear and make those allegations. In such a case it is far better for the Court to make an inquiry into the allegations of one of the parties keeping that party present. In such cases what is wanted is a decision by the Court as to whether those allegations made are true or not. By refusing a party permission to appear the Court does not shut out the allegations of the party but in fact wants to make a full and thorough inquiry into the allegations made by the party
If we turn to the language used in the Baroda Hindu Nibandh the relevant paragraph is paragraph 7 of Schedule VII to the Baroda Hindu Nibandh which reads as under:
The words are used in para 7(1) and ordinarily a Court would not be justified in narrowing down the scope of the expression In fact the head note of para 7(1) makes it clear that a party can make an application for objection. Even the rest of the paragraph also does not justify a narrow interpretation. The word would mean either fraud or collusion. An application can be made on the ground that a decree nisi was obtained by fraud of collusion or by concealing material facts from the Court. From the use of this language we cannot come to the conclusion that the Baroda Legislature intended that only persons who are not parties to the proceedings should make an application. Even a party to the proceedings may complain that a preliminary decree or a decree nisi had been obtained by fraud or by concealing certain facts. The Learned Counsel for the opponent also relies on Clauses (1) and (2) of para 7(2)(ka) where it is provided that the Court shall hear the applicant as well as the parties to the divorce proceedings. The provision that the Court shall hear the parties does not necessarily mean that the applicant should be a person who is not a party. This provision has been made to meet cases where an application is made by a person who is not a party. An application can be made by a party as well as by a person who is not a party and in order to meet the second type of cases it is provided that the Court shall hear not only the applicant but also the parties to the proceedings. The language of sub-paragraph (2) of para 7 of the Baroda Hindu Nibandh cannot be used to interpret and to narrow down the scope of sub-para (1) of para 7 Even if it is so used it does not assist the Learned Counsel for the opponent If we read the whole of para 7 there is no justification for holding that the words in para 7(1) mean only a person who is not a party to the proceedings.
This is a case in which the husband alleges that fraud was committed on the Court and that he was not served with the summons of the proceedings. When such serious allegations are made it would be unreasonable to hold that the Court should not make an inquiry into these allegations simply because the allegations are made by the husband.
2. It is true that if all the parties had taken part in the proceedings which terminated in a decree nisi one of the parties cannot have a second opportunity under para 7 to re-agitate the merits of the question which has already been decided that is why the grounds on which an application can be made under para 7( 1) of the Baroda Hindu Nibandh are enumerated as fraud or collusion or the existence or the discovery of material facts which were not brought to the notice of the Court. These grounds enumerated in para 7(1) also show that the parties who took part in the proceedings cannot be allowed to re-agitate the question of merits once again. But if a party by the exercise of fraud was prevented from taking part in the proceedings he can prove the fact and prevent a decree nisi being made absolute. The learned Judge is therefore wrong in taking the view that only a person who is not a party to the proceedings can make an application under para 7(1) and that a party cannot make such an application under paras 6 and 7 of the 7th Schedule to the Baroda Hindu Nibandh.
The revision application is therefore allowed with costs and the Court below is directed to make an inquiry into the allegations made by the husband the present applicant.