The
Anuja and Milan Kumar are Hindus and have been married at Allahabad in the
month of May 1977 and to have last resided together at Daraganj, Allahabad
between May to July 1978, as well as in July 1978 the wife is departed for her
parents' home at Jabalpur, and not to have come back in spite of the husband's
efforts to bring her back. The suit was filed by husband for the restitution of
conjugal rights ex parte against the wife with costs.
In the Court ground taken by in Jabalpur, in which the wife declared her age to be 16 years. According to her husband her age had wrongly been shown as 20 years in that her date of birth was 23-5-1963 and thus she was about 16 years minor and documentary evidence is copy of her mark sheet. The ground that the wife's under Section 24 of the Hindu Marriage Act was not heard and decided before proceeding to try the case. No oral evidence was led in this case. The question is whether that was good evidence in law to base the decree on. The Code of Civil Procedure, 1908 - Rule 15 of the Hindu Marriage and Divorce Rules, 1956, framed by the Court in exercise of the powers conferred by Sections 14 and 21 of the Act.
1)The witnesses in all proceedings before the Court where their attendance can be had, shall be examined orally and any party may offer himself or herself as a witness as well as shall be examined as well as may be cross examined and re examined like any other witness.
2) The deponent in every such affidavit shall, on the application of the opposite party or by direction of the Court, be subject to be cross examined, by or on behalf of the opposite party orally as well as after such cross examination may be re examined by or on behalf of the party by whom such affidavit was filed.
The Rules 8 which provides for the procedure for consideration of an application for leave under Section 14 of the Act. Sub rule 3 of Rule 8 provides that the evidence in such application may, unless the court otherwise directs, be given by affidavit. Power to order any point to be proved by affidavit- Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable bur the either party bona fide desires the production of a witness for cross examination as well as that such witness can be produced an order shall not be made authorizing the evidence of such witness to be given by affidavit. Order 17 of the Code of Civil Procedure which makes provision for adjournment and proceeding with the hearing of the case ex parte does not authorized the taking of affidavit evidence against a party in his absence.
Rule 10 of Order 8 is that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment or a decree shall be drawn up.
The Additional Judge failed in his duty to hear and decide the application which was made on behalf of the wife for an order directing the husband to pay Rs. 500/- for the expenses of the proceedings and Rs. 500/-per month as maintenance pendent lite. The first Appeal from an ex parte decree passed against the appellant-wife for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.
Post a Comment