1996 Supreme(MP) 1292

IN THE HIGH COURT OF MADHYA PRADESH
R.S. Garg, J.
Yogini Tiwari (Smt.) - Applicant
Versus
Basant Kumar Tiwari - Non-Applicant
C.R. No. 1481 of 1995 (J)
Decided On : 17-01-1996

Headnote:(1) Civil Procedure Code, 1908 – – O. 9 R. 13 – – application for setting aside ex parte decree – – provisions under S. 24, Hindu Marriage Act, 1955 are applicable.

       (2) Hindu Marriage Act, 1955 – – S. 24 – – provisions, under – – are applicable in proceedings under 0.9 R. 13 CPC for setting aside ex parte decree.

        Short Note

       1. With the consent of the parties the matter is finally heard.

       2. Challenging the ex parte decree the applicant has filed an application under Order 9 Rule 13 C.P.C. During the pendency of the application an application u/s. 24 of the Hindu Marriage Act has been filed by the applicant claiming interim maintenance and expenses for the litigation. The said application was opposed by the non – applicant/husband on various counts. The learned trial Court was pleased to reject the application holding that as the ex parte decree was passed because of the lapses on the part of the applicant/wife and as no evidence regarding the income of the husband has been produced before the Court, therefore an order u/s. 24 would not be proper. Shri Shrivastava submitted that the trial Court was wrong in holding that in proceedings under Order 9 Rule 13 C.P.C. maintenance could not be granted in favour of the wife. He also submitted that the applicant in her affidavit has stated that the husband is receiving Rs. 5,000/ – p.m. He also submitted that from the affidavit of respondent it is clear that he was drawing Rs. 2868/ – as salary therefore the Court below was wrong in holding that there was no evidence on record about the income of the husband.

       3. Shri Garg counsel for the non – applicant on the other hand contended that the wife after making her appearance in the original suit did not choose to appear therefore she has suffered the ex parte decree. He submits that in proceedings under Order 9 Rule 13 C.P.C. maintenance cannot be granted.

       4. After hering the parties I am of the opinion that the appeal deserves to be allowed. The proceedings under Order 9 Rule 13 though are proceedings for setting aside ex parte decree but those originated from a matter under the Hindu Marriage Act. The learned trial Court was not justified in holding that in proceedings under Order 9 Rule 13 C.P.C. maintenance cannot be awarded to the wife. As the proceedings arise out of the Hindu Marriage Act the provisions of S. 24 would be applicable. The trial Court was also not justified in holding that ex parte proceedings were drawn against the wife because of her lapses this dispute is yet to be decided by the said Court. If the trial Court ultimately comes to the conclusion that because of the wilful absence of the applicant the Court was constrained to proceed ex parte then her application can be rejected. But at this stage it could not be observed that because of her lapses an ex parte decree could be passed. So far as the evidence about income is concerned, true it is that the present applicant but for giving her affidavit did not produce any further evidence but there is a positive admission on the part of the husband. In the affidavit he states that his total salary was Rs. 2,868/ – . On face of this admission made by the respondent the trial Court was not justified in observing that there is no legal evidence on record. The order passed by the learned trial Court cannot be allowed to stand. Order dated 7.7.95 is set aside. The matter is remanded back to the trial Court for reconsideration of the application filed by the wife u/s. 24 of the Hindu Marriage Act. There shall be no order as to costs.