The provisions of Order IX, Rule 13 of the Code of Civil Procedure, 1908 are applicable to proceedings under the Hindu Marriage Act, 1955, and there is a power to condone delay in presenting an application for setting aside an ex parte decree under the Act.

Headnote:
HINDU MARRIAGE ACT - SETTING ASIDE EX PARTE DECREE - APPLICABILITY OF ORDER IX, RULE 13 OF THE CODE OF CIVIL PROCEDURE, 1908 - POWER TO CONDONE DELAY - NECESSITY TO SERVE THE APPLICATION WITHIN 30 DAYS OF THE DECREE OR BEFORE THE OTHER SPOUSE REMARRIES.
Fact of the Case:

In two separate cases, one involving a husband seeking to set aside an ex parte decree of dissolution of marriage and the other involving a husband seeking to set aside an ex parte decree of divorce, the question arose whether an application for setting aside an ex parte decree is maintainable under the Hindu Marriage Act, 1955 (the Act), whether there is a power to condone delay in presenting such an application, and whether it is necessary to serve the application either within the period provided for filing an appeal or before the other spouse remarries.
Finding of the Court:

1. The provisions of Order IX, Rule 13 of the Code of Civil Procedure, 1908 (the Code) are applicable to proceedings under the Act by virtue of section 21 of the Act, which makes all the provisions of the Code applicable to such proceedings unless they are inconsistent with any of the provisions of the Act or the rules made by the High Court under the Act. 2. There is a power to condone delay in presenting an application for setting aside an ex parte decree under the Act, as the provisions of sub-section (3) of section 29 of the Limitation Act, 1963, which prohibit the application of the Limitation Act to suits and proceedings under any law relating to marriage and divorce, do not apply to the Act in light of section 21 of the Act. 3. It is not necessary to serve the application for setting aside an ex parte decree within 30 days of the decree or before the other spouse remarries, as long as the application is filed within the time provided under Article 123 of the Limitation Act read with section 5 of the Limitation Act.
Issues: 1. Whether an application for setting aside an ex parte decree is maintainable under the Act? 2. Whether there is a power to condone delay in presenting such an application? 3. Whether it is necessary to serve the application either within the period provided for filing an appeal or before the other spouse remarries.
Ratio Decidendi: 1. Section 21 of the Act makes all the provisions of the Code applicable to proceedings under the Act unless they are inconsistent with any of the provisions of the Act or the rules made by the High Court under the Act. The provisions of Order IX, Rule 13 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, and therefore they are applicable to proceedings under the Act. 2. Sub-section (3) of section 29 of the Limitation Act prohibits the application of the Limitation Act to suits and proceedings under any law relating to marriage and divorce. However, this prohibition does not apply to the Act in light of section 21 of the Act, which makes all the provisions of the Code applicable to proceedings under the Act. Therefore, the provisions of section 5 of the Limitation Act, which allow for the condonation of delay in presenting an application, are applicable to applications for setting aside an ex parte decree under the Act. 3. There is no requirement in the Act or the rules made by the High Court under the Act that an application for setting aside an ex parte decree be served within 30 days of the decree or before the other spouse remarries. Therefore, as long as the application is filed within the time provided under Article 123 of the Limitation Act read with section 5 of the Limitation Act, it is maintainable.
Final Decision: 1. An application for setting aside an ex parte decree is maintainable under the Act. 2. There is a power to condone delay in presenting such an application. 3. It is not necessary to serve the application either within the period provided for filing an appeal or before the other spouse remarries.

JUDGMENT - P.B. SAMANT, J.:---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

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