The court emphasized the applicability of Order IX Rule 13 CPC to proceedings under the Hindu Marriage Act and highlighted the lawful circumstances for entering into a matrimonial alliance after the dissolution of marriage by a decree of divorce as per Section 15 of the Act.

A. N. Dikshita, J.

1. This civil revision has been filed by the plaintiff-applicant (hereinafter referred to as the applicant) against the judgment and order dated 25-4-85 passed by Sri C. B. Jayaswal, IV Addl. District Judge, Allahabad in Misc. Case No. 4 of 1985 arising out of matrimonial Petition No. 236 of 1984 by which the judgment and order dated 22-9-86 decreeing the suit ex-parte was set aside and restoring the suit to its original number for disposal according to law.

2. The facts encompassing the controversy in brief are that the applicant filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for the dissolution of marriage on the ground of cruelty and desertion by the wife for more than 2 years. Inspite of the summons being sent to the respondent (defendant) no appearance was put in to contest the petition. The suit was ordered to proceed ex-parte against the defendant (wife). An affidavit in support of the petition was filed by the applicant and feeling satisfied that the case for dissolution of marriage under Section 13 of the Act on the ground of cruelty and desertion has been made out the trial court (IV Addl. District Judge) decreed the suit ex-parte dissolving the marriage and granting divorce.

However, on coming to know about the passing of the ex-parte decree dissolving the marriage and granting divorce the respondent filed an application under Order IX Rule 13 CPC for setting aside the judgment and decree dated 22-9-84 by which the suit was decreed ex-parte. An affidavit in support of the application was also filed stating therein that the respondent (wife) had no knowledge about the pendency of the suit filed by the applicant under Section 13 of the Hindu Marriage Act. Objections and counter-affidavit were filed by the applicant opposing the application for setting aside of the judgment and decree dated 22-9-84 decreeing the suit ex-parte.

3. The trial Court found as a fact that neither notice nor summons were served on the respondent (wife). It was further found that the applicant who has obtained the decree ex-parte by practising fraud cannot be allowed to derive advantage out of it. It was also found by the trial court that the fraud so practised by the applicant (husband) vitiated the entire proceedings and more so when the defendant (wife) has no knowledge of the proceedings. The judgment and decree dated 22-9-84 decreeing the suit ex-parte and dissolving the marriage and granting divorce was thus set aside by learned IV Addl. District Judge vide judgment and order dated 25-4-85.

4. Feeling aggrieved the applicant has preferred this civil revision.

Learned counsel for the parties have been heard at some length.

5. Learned counsel for the applicant Sri K. L. Grover has submitted that the provisions of Order IX Rule 13 CPC would not be applicable in the instant case and as the application was not maintainable under the provisions of the Hindu Marriage Act the trial court has exercised jurisdiction not vested in it by law and has acted in exercise of its jurisdiction illegally. It has been submitted that the provisions of Hindu Marriage Act clearly contemplate as provided under Section 28 of the said Act that all decrees made by the court in any proceedings under this Act shall be appealable as decrees of the court made in the exercise of its original civil jurisdiction. It is difficult to agree with such a submission. Section 21 of the Hindu Marriage Act provides as under : " 21. Application of Act 5 of 1908-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 Code of Civil Procedure, 1908. " It is thus clear from a perusal of the provisions as recited above that all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure 1908. The petition under Section 13 of the Act was filed for awar