Punjab-Haryana High Court
Madan Lal vs Meena on 30 July, 1986
Equivalent citations: AIR1988P&H31, (1986) 2 HINDULR 311, AIR 1988 PUNJAB AND HARYANA 31, (1988) MARRILJ 341, (1987) 3 CURLJ(CCR) 505, (1986) 90 PUN LR 601, ILR (1987) 2 P&H 102, (1987) ILR 2 P&H 102
ORDER
1. The controversy sought to be raised in revision here is with regard to the applicability of the provisions of S. 24 of the Hindu Marriage Act, 1955(hereinafter referred to as 'the Act'), to an application for setting aside an ex parte decree for divorce obtained under the Act. The impugned order being of the District Judge, Patiala, awarding Rs. 300/- as maintenance pendent lite and Rs. 600/- as expenses of the litigation to the wife Meena in proceedings for setting aside the ex parte decree for divorce obtained against her by her husband Madan Lal on May 29, 1984.
2. Before proceeding further, it may be mentioned that the application for setting aside the ex parte decree has since been allowed and the petition for divorce filed by the husband Madan Lal, has also been dismissed by the District Judge, Patiala, by his order of May 26, 1986 on his failure to pay arrears of maintenance pendente lite and the expenses of the litigation.
3. The challenge to the impugned order was founded upon the wholly untenable premises that an application under O. 9, R. 13 of the Code of Civil Procedure for setting asides an ex parte decree for divorce, could not be taken to be proceedings under the Act so as to extend to it the applicability of the provisions of S: 24 of the Act. The argument being that while seeking and obtaining a decree for divorce, be it ex parte or after contest, would be "proceedings" under the Act, an application for setting aside such a decree would be one under the Code of Civil Procedure and thus not one under the Act, and therefore, the provisions of S. 24 of the Act, would not be available in respect thereof. There is a patent fallacy in this contention inasmuch ac. the provisions of the Code of Civil Procedure, in the Hindu Marriage Act, 1955, are there merely to regulate the proceedings therein and not as substantive law separate and distinct from it as would be apparent from a plain reading of S. 21 of the Act, which reads:--
"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."
4. Further, the object and rationale of S. 24 of the Hind Marriage Act, 1955 is to provide against lack of financial means operating to the detriment of a party to proceeding under the Act. In other words, to obviate against the financial handicap of a party to the litigation. Seen from this angle too, the provisions of S. 24 of the Act cannot be construed to take an application for setting aside of an ex parte decree under the Ad as outside the purview thereof. To hold otherwise, could mean grave prejudice to an innocent party against whom an ex parte decree has been wrongly passed inasmuch as lacking the financial means to challenge such an ex parte decree; it may be constrained to suffer it. Nothing could have been further from the intention of the legislature in this behalf.
5. No infirmity can thus be spelt out in the impugned order of the District Judge, Patiala, which is accordingly hereby upheld and affirmed.
6. This revision petition is hereby dismissed with costs. Counsel fee Rs. 300/- .
7. Petition dismissed.