Bombay High Court
Hemraj Shamrao Umredkar vs Leela on 1 August, 1988
Equivalent citations: AIR1989BOM146, AIR 1989 BOMBAY 146, (1988) MATLR 315, (1988) 2 DMC 325, (1988) 2 HINDULR 583, (1988) 2 CURCC 488
ORDER
1. This is husband's application challenging the order passed by the Civil Judge, Senior Divisions, Nagpur, holding that the respondent's application under O. 9, R. 13 of the Civil P.C. for setting aside the decree of divorce obtained by the respondent for interim maintenance is maintainable.
2. Upon the applicant's petition the trial Court passed a decree of divorce on 17-3-1983. The respondent applied on 18-4-1983 for setting aside that decree and in that proceeding the trial Court gave a direction for interim maintenance under S. 24 of the Hindu Marriage Act . Upon an objection taken to the maintainability of the application, the learned trial Judge held that the application for interim maintenance was maintainable under S. 24 of the Act and fixed the case for evidence on the quantum of maintenance to be awarded.
3. The challenge by the learned counsel for the petitioner to this order is two-fold. Firstly that the proceeding for setting aside an ex parte decree of divorce passed, would not e a proceeding within the meaning of S. 24 of the Hindu Marriage Act , and secondly as the expression used in S. 24 is "wife" and a decree of divorce has already been passed against her, show would not be the person who would be entitled under that provision to seek interim maintenance.
4. Under S. 24 of the Hindu Marriage Act , where in any proceeding under this Act , it appears to the Court that either the wife or the husband, as the case be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable. Accordingly to Shri Moharir, a proceeding for setting aside an ex parte decree of divorce would not be a proceeding under the Act . s. 21 provides that 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 Civil P.C., 1908, Shri Moharir odes not dispute that a proceeding under O.9, R.13 would be a proceeding contemplated for setting aside the decree of divorce obtained ex parte, but in his submission it would be a proceeding under the Code of Civil Procedure and not under the Hindu Marriage Act . This argument overlooks that s. 21 of the Hindu Marriage Act , engrafts the relevant provisions of Code of Civil Procedure into the Act for regulating the procedure, and independently of s. 21 of the Civil P.C. would have no application. Therefore, though the procedure for setting aside the ex parte decree would be regulated by the Civil P.C. it would only be a proceeding under the Act by virtue of S. 21 of the Act . The view that I am taking is supported by the observations in Rishi Dev Anand v. Smt. Devinder Kaur, and the view taken by the learned trial Judge on this point is correct.
5. With regard to the second objection, it may be noted that even in s. 12 which relates to voidable marriages, the reference in sub-sec. (2) (a) (ii) is to the husband or wife. Wherever the expression "husband" or "wife" have not been used, the persons who are connected with the marriage are described as a party to the marriage or his or her spouse. The provisions of S. 25 of the Hindu Marriage Act which relate to permanent alimony and maintenance use the expression "either the wife or the husband as the case may be" and these expressions are used at the stage when the Court is exerciisng jurisdiction under the Act and the occasion arises at the time of passing any decree or at any time subsequent thereto. It would, therefore, follow that the expressions "husband" or "wife" used in Ss. 24 and 25 are used in a descriptive sense in order to denote a party to the marriage and not necessarily as one who in the view of the Court at the time of passing of the order is entitled to the legal character of wife or husband. It is well settled that the cases of divorce and annulment of marriages have the effect of snapping the marriage tie. If these words are literally construed, it may lead necessarily to the confinement of S. 25 to the cases of restitution of conjugal rights and judicial separation, which could not have been the intention of the Legislature. This Court pointed out in Smt. Rajeshbai v. Smt. Shantabai, that the term "wife" is an articulate term and so also the term "widow". In Govindrao v. Anandibai, where the marriage was found void de jure and a decree for divorce under S.11 of the Act followed the Court observed that S. 25 not only provides for remedy but it also confers a right upon such a "wife" and refused to give literal meaning to the terms "wife" or "husband" used in that Section. The learned Judge observed that if the words "wife" and "husband" were construed in the their strict literal sense, then they would refer only to parties to a subsisting marriage and in the case of divorced wife or divoiced husband or those who have obtained decree of annulment of a voidable marriage, they cannot strictly be described as wife and husband, but one has to concede that such persons would be included within the scope of the words "wife" and "husband". I. Therefore, see no substance in the submission of Shri Moharir that the term "wife" used in S. 24 of the Act must denote the wife whose marriage is subsisting unaffected by the decree of divorce. I find that the expression does not presuppose an existing jural relationship of husband and wife, but is merely descriptive of the person who may law a claim to any other reliefs which can be granted under the Hindu Marriage Act .
6. In this view of the matter, I see no merit in the revision application. Rule is discharged with costs.
7. Order accordingly.