- (1.) The present Special Appeal is directed against order of ld. Single Judge date.18.12.2009 passed in misc. appeal dismissing the application for restoration being barred by limitation.
(2.) The appeal was originally filed by the appellant who is member of Scheduled Tribe category assailing order date.21.04.1998 passed on an application filed by the respondent Prem Bai for restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955 (the Act). According to the appellant it was ex-parte order and service was never effected upon him and when the appeal was preferred by the appellant, it has been specifically stated that the contents of the application filed by the respondent under section 9 of the Act before the Family Court were completely false and he has denied the element of marriage being solemnized and in the given circumstances when they are members of Scheduled Tribe category, the application filed by the respondent under Section 9 of the Hindu Marriage Act, itself was not maintainable.
(3.) The appeal preferred by the present appellant against order of the ld. Family Court date.21.04.1998 when listed before the ld. Single Judge at the relevant point of time, as there was delay in filing appeal as such notices were issued of the application under Section 5 of the Limitation Act and of the appeal and after the matter being heard, ld. Single Judge of this court framed two legal questions as reveals from order date.15.5.2002 which read ad infra- (i) Whether the present appeal is maintainable in absence of necessary steps for setting aside the ex parte decree having not been taken in accordance with law before the trial Court? (ii) Where both the parties being members of Scheduled Tribe (ST) (Meena Community), whether the impugned judgment is sustainable under Section 9 of the Hindu Marriage Act by not taking into considerations the said provisions? ;