Family - Applicability of Provision - Section 19 of Hindu Marriage Act, 1955 and Order VIII Rule 1 of the Code of Civil Procedure, 1908(CPC) - Present writ petition has been filed against order by which permission for filing of additional written statement was rejected by trial court - Whether a matrimonial petition under Act filed in court having jurisdiction under Section 19 of Act will be governed by constraints of Rule 1 of Order VIII of CPC after amendment of CPC? - Held, relied on decision of this Court passed in Vanmala w/o. Maroti Hatkar v. Maroti Sambhaji Hatkar case where husband committed default in complying with order of interim alimony and payment of expenses passed under Section 24 of Act - This Court held that in such a contingency, if offending party is petitioner, proceedings of Petition can be ordered to be stayed - If offending party is respondent, then defence of respondent can be struck out - Thus if compliance is not made by a Petitioner with an order passed under Section 24 of Act, proceedings of Petition can be stayed - Thus, law laid down by this Court is that unless an application made by respondent for grant of litigation expenses is decided, respondent is not even expected to file written statement - If such application is decided in favour of respondent, it is not expected of respondent to file written statement unless order granting litigation expenses is complied with - It is not necessary to go into wider question whether provisions of Order VIII of CPC as amended stand automatically incorporated in Rule 12 of Rules - Even assuming that what is incorporated is amended Rule 1 of Order VIII of CPC, same will apply mutatis mutandis - It will apply only to extent to which it is applicable considering provisions of Act and Rules - Apart from this, it is obvious that amended Rule 1 of Order VIII which provides for a time limit is inconsistent with provisions of Act and Rules and in particular Section 24 as well as Rules 10 and 12 of Rules - In this view of matter, time frame provided in Rule 1 of Order VIII, as amended, will not strictly apply to a proceeding of a Petition under Act - In view of above law laid down by this court, while passing impugned order, trial court has erroneously applied time frame provided in Rule 1 of Order VIII of CPC - In present case, petitioner had already filed written statement - Question was only of filing an additional written statement to amended Petition - In application made by petitioner, reasons were set out for not filing additional written statement earlier - This was not a case where petitioner was not contesting proceedings filed by respondent - Petitioner had already filed her written statement to original Petition - Looking to grounds incorporated in application trial court ought to have allowed said application and ought to have taken on record additional written statement which was tendered along with application - In circumstances, Petition succeed and impugned order is set aside - Additional written statement tendered by petitioner shall be taken on record - Petition is allowed
Bombay High Court
Sau. Vanita Pravin Gaikwad vs Shri Pravin Pundlik Gaikwad on 30 September, 2009
Bench: A.S. Oka
1. In this Writ Petition under Article 227 of the Constitution of India, the following question arises for consideration "whether a matrimonial petition under the 2
Hindu Marriage Act, 1955 (hereinafter referred to as "the said Act") filed in the court having jurisdiction under section 19 of the said Act will be governed by the constraints of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") as amended by Code of Civil Procedure (Amendment) Act, 2002?"
2. The factual controversy is very narrow. The respondent-husband filed a petition for divorce under the said Act on various grounds. Written statement was filed by the petitioner-wife on 12th November, 2007. On 25th March, 2008, the learned Civil Judge (S.D.) permitted amendment to be carried out to the petition for divorce. Amended copy of the Petition was served to the petitioner on 8th April, 2008. An application made by the petitioner for grant of time to file additional written statement was rejected by the trial court on 8th October, 2008 on the 3
ground that the Additional Written Statement was not filed within the time provided under the said Code. On 5th November, 2008, an application was made seeking permission to file additional written statement. By order dated 29th November, 2008, the said application has been rejected by the trial court. The said order has been impugned in this Writ Petition under Article 227 of the Constitution of India. On 13th August, 2009, this Court directed that the Petition shall be decided finally at the admission stage.
3. Submissions have been made by the learned Counsel appearing for the petitioner on the aforesaid issue in the light of the earlier order dated 8th October, 2008 passed by the trial court by which application for grant of time to file additional written statement was rejected by the trial court on the ground that additional written statement was not filed within the period of 90 days stipulated under the 4
Code of Civil Procedure, 1908. The learned Counsel submitted that in view of Section 21 of the said Act, the provisions of the said Act and the rules framed by this Court under the said Act will have overriding effect over the provisions of the said Code. She has invited my attention to the provisions of the Hindu Marriage and Divorce Rules, 1955 (hereinafter referred to as "the said Rules") framed by this Court in exercise of powers under Section 14 read with Section 21 of the said Act. She submitted that even assuming that the provision of Rule 1 of Order VIII of the said Code stands incorporated in the said Rules, what stands incorporated is the provision of the said Rule as on the date on which the Rules were framed by this Court and not the subsequent amendment made in the year 2002. She, therefore, submitted that amendment of the Rule 1 of the Order VIII in the year 2002 will not apply to the proceedings under the said Act. She submitted that in any event even assuming that the 5
amended provision is applicable, the same has been held to be directory by the Apex Court and in the present case, there was more than sufficient reason and explanation for the delay. She invited my attention to the decision of the Apex Court in the case of Rani Kusum vs. Kanchan Devi and Ors. [(2005) 6 SCC 705].
4. The learned Counsel appearing for the respondent placed reliance on various decisions of the Apex Court and submitted that the incorporation of Rule 1 of Order VIII of the said Code is by reference and, therefore, the amended Rule 1 of Order VIII automatically stands incorporated in Rule 12 of the said Rules. Apart from other decisions, he also placed reliance on the decision of the Apex Court in the case of Girnar Traders vs. State of Maharashtra & Ors. [(2007) 7 SCC 555] and the decision in the case of State of Maharashtra and Anr. vs. Sant Joginder Singh Kishan Singh & Ors. [1995 Supp. (2) SCC 475]. He 6
submitted that as the amended provision of Rule 1 of Order VIII was applicable, the additional written statement ought to have been filed within a period of 90 days from the date on which the amended copy of the Petition was served to the petitioner. He, therefore, submitted that no interference is called for.
5. I have given careful consideration to the submissions. Section 21 of the said Act reads thus :
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 the Code of Civil Procedure, 1908 (5 of 1908)."
6. On plain reading of Section 21, it is apparent that the provisions of the said Act and the said Rules framed by 7
this Court will have overriding effect over the provisions of the said Code. The provisions of the said Code will apply wherever the provisions of the said Act and the said Rules are silent. However, the matter does not rest here as Rule 12 of the said Rules seeks to incorporate the provisions of Order VIII of the said Code. It will be necessary to consider Rules 10 and 12 of the said Rules which read thus :
"10. Notice :-
The court shall issue notice to the respondent and co-respondent, if any.
The notice shall be accompanied by a
copy of the petition. The notice shall
require, unless the court otherwise directs, the respondent or co-
respondent to file his or her statement in Court within a period of
four weeks from the service of the notice and to serve a copy thereof upon each of the other parties to the
petition within the aforesaid period."
"12. Written statement in answer to petitions by respondent :-
8
The respondent may and if so
required by the court, shall present a
written statement in answer to the petition. The provisions of Order VIII
of the Code shall apply mutatis mutandis to such written statements.
In particular if in any proceedings for divorce the respondent opposes the relief sought in the petition on the ground of the petitioner's adultery, cruelty or desertion, the written statement shall state the particulars of such adultery, cruelty or
desertion."
7. Rule 10 provides that unless the Court otherwise directs, the notice issued on a Petition under the said Act shall require the respondent or the co-respondent, as the case may be, to file written statement within a period of four weeks from the service of notice. Therefore, in a given case the Court has power to issue a notice of the Petition calling upon the respondent to file a written statement within a longer time than four weeks. The second part of Rule 12 provides that the provisions of 9
Order VIII of the said Code shall apply mutatis mutandis to the written statement filed by the respondent in a Petition under the said Act. Thus, provisions of Order VIII are made applicable mutatis mutandis to the Petitions filed under the said Act. The meaning of the phrase "mutatis mutandis" is no longer res-integra. In the case of Ashok Service Centre and Ors. vs. State of Orissa [(1983) 2 SCC 82. ], the Apex Court has held that extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adoption, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the things changed, subject to of course express provisions made in the later Act.
8. "Mutatis mutandis" means "with necessary changes in the points of detail" or "with such change as may be necessary" meaning that matter or things are generally the same but to be altered when necessary. Thus, provisions 10
of Order VIII of the said Code will apply to the Petitions under the said Act with necessary changes or modifications. The question is what are those modifications.
9. It will be necessary to consider the other relevant provisions of the said Act. Section 24 of the said Act reads thus :
"24. Maintenance pendente lite and expenses of proceedings :-
Where in any proceeding under this
Act it appears to the Court that either the wife or the husband, as the case
may be, has no independent income
sufficient for her or his support and
the necessary expenses of the
proceeding, 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 11
seem to the Court to be reasonable :
Provided that the application for the
payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty
days from the date of service of notice on the wife or the husband, as
the case may be.
10. The said Section confers a power on the Court in a given case to direct the Petitioner to pay necessary expenses of the proceedings to the respondent on an application being made by the respondent. Such an order can be passed when the Court is satisfied that the respondent does not have independent income. Proviso lays down that if an application for payment of expenses of the proceedings is made, normally the same shall be disposed of within 60 days from the date of service of notice on the wife or the husband, as the case may be. Thus, in a given case where a Petition is filed for divorce or other relief by the husband, if wife does not have 12
income to bear the expenses of the proceedings, she can apply to the trial court for grant of a reasonable amount for meeting the expenses of the proceedings initiated by the husband. The law mandates that such application shall be decided within a period of 60 days. What follows is that till such application is not decided and till the amount ordered to be paid to the respondent-wife not paid, she is not expected to file written statement. At this juncture, it will be necessary to consider a decision of this in the case of Meena @ Pratibha Deshpande vs. Prakash Shriniwas Deshpande (1983 Mh.L.J. 821). It will be necessary to refer to what is held by this Court in paragraph 2 of the said decision :
"2. In the entire proceedings excepting para 5 of the trial Court's judgment, it does not appear that there was any consideration bestowed upon the
entitlement of such wife to seek maintenance pendente lite and the expenses of the proceedings for which proper application was filed 13
supported by the affidavit as available at Exs. 11 and 12. Without deciding
such an application, it is indeed difficult to permit the passing of such ex-parte judgment only
because the written statement is not filed, particularly when the allegations on the basis of which relief of nullity and divorce are sought are serious enough and,
before they are accepted, required
sufficient and adequate proof. In such matters, looking to the policy of
law, it must be observed that the proceedings under section 24 of the Act have an important bearing with regard to the rights of the defending
spouse. Not only the provisions of section 24 of the Act permit grant
of maintenance pendente lite, but also it permits the Court to make an order with regard to necessary
expenses of the proceedings. In a
given case without provision for the necessary expenses of the
proceedings, it would be
impracticable to insist upon the defending spouse even to file a written statement. The trial Court,
which was moved by filing the application, was bound to decide the application with regard to the
maintenance and the expenses.
There is, thus, obvious failure to follow the provisions of section 24
14
of the Act and that should be enough to set aside the judgment under appeal and remit the matter back to the trial Court directing it to consider the application filed at Ex. 11 supported by Ex.12 and then to proceed with the enquiry in the petition according to law."
(Emphasis added)
11. Thus, what is held by this Court is that in a given case without making provision for necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. Therefore, this Court came to the conclusion that unless application made under Section 24 of the said Act was decided, the Court could not have proceeded to pass an ex-parte decree.
12. On this aspect there is one more relevant decision in the case of Vanmala w/o. Maroti Hatkar vs. Maroti Sambhaji Hatkar (1999 (2) Mh.L.J. 297). This was a 15
case where the husband committed default in complying with the order of interim alimony and payment of expenses passed under Section 24 of the said Act. This Court held that in such a contingency, if the offending party is the petitioner, the proceedings of the Petition can be ordered to be stayed. If the offending party is respondent, then the defence of the respondent can be struck out. Thus if compliance is not made by a Petitioner with an order passed under section 24 of the said Act, the proceedings of the Petition can be stayed. Thus, the law laid down by this Court is that unless an application made by the respondent for grant of litigation expenses is decided, the respondent is not even expected to file written statement. If such application is decided in favour of the respondent, it is not expected of the respondent to file the written statement unless order granting litigation expenses is complied with. It is not necessary to go into the wider question whether the provisions of Order VIII of 16
the said Code as amended in the year 2002 stand automatically incorporated in Rule 12 of the said Rules. Even assuming that what is incorporated is the amended Rule 1 of Order VIII of the said Code, the same will apply mutatis mutandis. It will apply only to the extent to which it is applicable considering the provisions of the said Act and the said Rules. If it is held that the period for filing written statement provided in Rule 1 of Order VIII as amended is applicable to a Petition under the said Act, the provision of Section 24 of the said Act which is a salutary provision will be rendered nugatory. Moreover, if Rule 10 and 12 are read together, it is apparent that in a given case the Court may issue notice to the respondent without calling upon him/her to file Written Statement. Moreover, the court has discretion to call upon the respondent to file written statement within a longer period than the period of four weeks. This power is conferred by Rule 10 itself. Apart from this, it is obvious 17
that amended Rule 1 of Order VIII which provides for a time limit is inconsistent with the provisions of the said Act and said Rules and in particular Section 24 as well as rules 10 and 12 of the said Rules. If the intention of the framers of the Rules was to apply all the provisions of Order VIII in its entirety to the proceedings under the said Act, the phraseology used in Rules 10 and 12 would not have been used. It is intended to apply only those provisions of Order VIII of the said Code which are not inconsistent or contrary to the provisions of the said Act and the said Rules. In this view of the matter, the time frame provided in Rule 1 of Order VIII, as amended in the year 2002, will not strictly apply to a proceeding of a Petition under the said Act.
13. At the same time, sub-section 2 of Section 21(B) of the said Act cannot be altogether ignored which lays down that every petition under the said Act shall be tried as 18
expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent. Therefore, when there is no application made by the respondent for grant of relief of litigation expenses under Section 24 of the said Act, normally the respondent will have to abide by the time frame incorporated in Rule 1 of Order VIII (as amended) with a view to ensure that the trial is concluded expeditiously. However, if a respondent does not file written statement in 90 days, for seeking extension of time, it will not be necessary for the respondent to make out a case of existence of exceptional reasons or exceptional circumstances which is required to be made out in a case where amended Rule I of Order VIII of the said Code is strictly applicable. The respondent in a petition will have come out with a reasonable explanation for delay. In a case where respondent has applied under Section 24 of the said Act for grant of litigation expenses, 19
the said respondent cannot be compelled to file a written statement unless an order is passed on the said application. If an order is passed in favour of the respondent directing the petitioner to pay litigation expenses, the respondent is expected to file written statement only after the amount is paid to the respondent.
14. Coming back to the facts of the present case, while passing order on 8th October, 2008, the learned Judge has erroneously applied the time frame provided in Rule 1 of Order VIII of the said Code. In the present case, the petitioner had already filed written statement. The question was only of filing an additional written statement to the amended Petition. In paragraph 2 of the application made by the petitioner, the reasons were set out for not filing the additional written statement earlier. This was not a case where the petitioner was not contesting the proceedings filed by the respondent. The petitioner had 20
already filed her written statement to the original Petition. Looking to the grounds incorporated in the application, the trial court ought to have allowed the said application and ought to have taken on record the additional written statement which was tendered along with the application. In the circumstances, the Petition must succeed and I pass following order :-
"O R D E R"
(i). The impugned order dated 29th November, 2008 passed below
Exhibit 41 is set aside.
(ii).Application at Exhibit 41 is hereby allowed.
21
(iii).Additional written statement
tendered by the petitioner shall be taken on record. The Petition is allowed.
A.S. OKA, J.
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