Ghari Lal vs Surjit Kour

Bilal Nazki, J.—Petitioner obtained an ex parte decree against the respondent u/s 9 of the Hindu Marriage Act on 19-11-1992. The

respondent filed an application for setting aside the ex parte decree. This application was filed after the period of limitation, therefore, an

application u/s 5 of the Limitation Act was also filed. The application appears to be pending before the Lower Court. During the pendency of the

application u/s 5 of the Limitation Act, the wife, (respondent herein) filed an application u/s 30 of the Hindu Marriage Act for grant of maintenance

pendente-lite and expenses of the proceedings. This application was resisted on various grounds and a preliminary objection was taken that the

application u/s 5 of the Limitation Act is not a proceeding within the meaning of Section 30 of the Hindu Marriage Act, therefore, no maintenance

in terms of Section 30 of the Hindu Marriage Act could be ordered.

The learned District Judge found that the proceedings pending before him, i.e. application u/s 5 of the Limitation Act was proceeding within the

meaning of Section 30 of the Hindu Marriage Act, therefore, he rejected the objection raised by the present petitioner,

The short point which has to be decided by this Court is that whether during the pendency of an application for condonation of delay in filing the

application for setting aside an ex-parte decree, passed under the provisions of Hindu Marriage Act, would be a proceeding within the meaning of

Section 30 of the Hindu Marriage Act.

The respondent herein as well as the Court below has relied upon the judgment reported in K. Balakrishna Rao Vs. M/s. Volga Restaurant, ,

whereas the petitioner has relied upon a judgment of this Court reported in Puran Chand Vs. Mst. Kamla Devi, .

Section 30 of the Hindu Marriage Act makes it abundantly clear that the Court can order payment of maintenance pendente-lite in any

proceedings under the Act. Section 23 of the Act lays down that subject to provisions contained in the Hindu Marriage Act and subject to the

rules made by the High Court, all proceedings under the Hindu Marriage Act shall be regulated by the Code of Civil Procedure, Section 23 gives

the right to a party to move an application for setting aside a decree passed in ex-parte against him or her as Section 23 makes Order 9, Rule 13

of the CPC applicable to the proceedings under the Act.

Therefore, there is no doubt that an application under Order 9, Rule 13 can be made for setting aside an ex-parte decree passed under the

provisions of Hindu Marriage Act. It appears that Section 23 has been incorporated in Hindu Marriage Act only to facilitate the application of

procedure laid down in Civil Procedure Code. The CPC as such does not give any right to a party contesting a matter under the provisions of

Hindu Marriage Act. The application under Order 9, Rule 30 is only an application to get a decree set-aside passed by the Court, but it will not be

a proceedings within the meaning of Section 30 of the Hindu Marriage Act. With the result I do not agree with the view expressed in the judgment

reported in K. Balakrishna Rao Vs. M/s. Volga Restaurant, . This view is not agreed to on the added ground that this Court in a judgment

reported in Puran Chand Vs. Mst. Kamla Devi, has held that the proceedings in the matter starts when the issues are framed. While interpreting

Section 30, Mufti Baha-Ud-Din Farooqi, Chief Justice, as he then was, laid down that ""the maintenance is to be allowed on monthly basis ""during

the proceedings"". The words 'during the proceedings' connote that the maintenance shall be admissible from the commencement till the conclusion

of the proceedings in the trial Court. The proceedings in the trial Court would naturally commence from the date on which the issues are framed,

which is ordinarily known as the first hearing.

According to the judgment, the right of claiming maintenance would only accrue to a particular spouse when issues are framed in a proceedings.

There can be no stage of framing of issues in an application seeking condonation of delay. This interpretation of Section 30 appears to be sound

and if a contrary view is taken, than in an application which has been moved for condonation of delay, if a Court ultimately comes to a conclusion

that there was no ground for condonation of delay after a lapse of reasonable time, the party claiming maintenance and getting it would be getting

the premium on his/her negligence. It is true that provisions of Section 30 has been laid down with a view to help the litigant spouse who has not

sufficient means to maintain himself/ herself but at the same time this provision cannot be used in such a way that it acts as a weapon or sword for

harassment to the other spouse.

For the reasons, I set aside the order of the learned Distict Judge and hold that the proceedings u/s 5 of the Limitation Act for entertaining an

application under Order 9, Rule 13 for setting aside a decree passed in terms of Hindu Marriage Act is not a proceeding within the meaning of

Section 30 of the Hindu Marriage Act.

Record be sent back forthwith.