Deoki Nandan, J.
1. This is a 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.
2. It is not necessary to state the facts of the case in any great detail for the purposes of the decision of this First Appeal. Suffice it to say, that the parties are Hindus and are said to 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, and in July 1978 the wife is said to have departed for her parents' home at Jabalpur, and not to have come back in spite of the husband's efforts to bring her back.
3. The original petition was presented in the district court at Allahabad on 24-4-1979. By an order dated 28-4-1979 the court of the District Judge Allahabad transferred it to the Court of the IIIrd Additional District Judge, Allahabad, for hearing and disposal. A summons was thereupon issued by the latter court fixing 25-5-1979 for written statement and 1-6-1979 for issues. The wife did not file any written statement on 25-5-1979. Instead, an application was moved on 1-6-1979 by a local Advocate on behalf of the wife praying for two months' time for filing the written statement. The husband's counsel opposed the application and pressed for heavy costs. The learned Additional District Judge fixed 16-7-1979 for filing the written statement, and 19-7-1979 for issues, but on payment of Rs. 20/- as costs. On 16-7-1979 an application was moved on behalf of the wife for an order for payment of Rs. 500/- for the expenses of the proceedings and Rs. 500/- per month as maintenance pendente lite under Section 24 of the Hindu Marriage Act. This application was accompanied by an affidavit by the wife, sworn at Jabalpur, in which the wife declared her age to be 16 years. Another application was moved on behalf of the wife by her local counsel at Allahabad stating that her age had wrongly been shown as 20 years in the Cause Title of the petition, that her date of birth was 23-5-1963 and thus she was about 16 years of are and a minor, and a photostat copy of her mark sheet of the (Matter in vernacular. Omitted here. Ed.) was filed in proof thereof. It was further stated and prayed in the application that the suit had not been properly filed and was not maintainable and may be dismissed as such. The learned Additional District Judge did not pass any orders on the application for expenses of the proceedings, but passed the following order on the application for dismissal of the suit as not maintainable.
'Seen. Summon the Resp. on
Date changed to 21/7
It may be that the latter order changing the date was passed the same day, for the figure '8' of the date '18/7' put under the initials of the learned Judge may be a very bad way of writing the figure '6'; for the order sheet of 16-7-1979 maintained by the Reader of the court records that (Matter in vernacular. Omitted here. Ed.) From the order sheet it further appears that there was direction made by the learned Judge on the back of the 'application under Section 24 that it may be put up on 30-7-1979. On 21-7-79 an application was moved by the local counsel of the wife stating that he had received a telegram, which was enclosed with the application, that she was unable to attend court on account of illness and that some other date may be fixed for her appearance. The learned Judge ordered:--
'Seen 'illegible' be produced on 30/7, Sd illegible 21/7.'
On 30th July an application was movedon behalf of the wife, byanother counsel Mr. B. N. Nemsaying that the parties weremaking serious efforts to compromisethe matter and praying for adjournment of the case for ten days. Learnedcounsel for the husband endorsed 'noobjection' on that, application, and 7-8-1979 was fixed by the learned AdditionalDistrict Judge 'for disposal of the case.'
4. On 7-8-1979 the presiding officer was on leave, and 11-8-79 was fixed by the Officer in charge. The husband and his counsel were present. The order sheet of 11-8-79 records the absence of the Presiding Officer on account of some part-heard case at Kanpur, and that, on the case being called, the husband and his counsel appeared but the wife was absent and the Officer in charge adjourned the case for further orders to 18-8-79. The order sheet of 18-8-79 is recorded in the hand of the learned Additional District Judge himself. It reads as under:--
'18-8-1979. The Resp. is absent. It was directed that she be brought before this court for determining if she is a minor. Hence it is held that the Resp. is not a minor. As the resp. has failed to file w. s. and to contest 10-9-79 is fixed for ex parte evidence and disposal.'
The order sheet of 10-9-79 records that the Presiding Officer was on earned leave that day and 9-10-79 was fixed for orders. The order sheet of 9-10-79 again records that the Presiding Officer was on earned leave and 18-10-79 was fixed as the next date. The order sheet of 18-10-79 again records that the Presiding Officer was on leave and 19-11-1979 was fixed for hearing. On 15-11-79 the case was transferred to the Court of the IV Additional District Judge, under the District Judge's order dated 13-11-79. The order dated 13-11-79 appears to have been passed by the District Judge in Misc. Case No. 493/79, Millan Kumar v. Smt. Anjula Gupta, under Section 24 C.P.C. From the order recorded on the order sheet it appears that the application was moved that very day and the court of District Judge ordered the transfer of the case that very day without any notice to the opposite party. The order sheet of 19-11-79 of the Court of IV Additional District Judge merely records that the case was received by transfer, registered and directed to be put up before the Presiding Officer for orders. According to the order sheet the case appears to have been next put up before the Presiding Officer on 29-11-79 in the presence only of the counsel for the husband and 5-12-1979 was fixed for hearing and judgment.
5. The order sheet of 5-12-79 records the following order in the hand of the learned Judge:--
'Shri Sehat Bahadur for Plaff. Defendant is absent and none appears. The hearing has proceeded ex parte against Defdt. My learned predecessor had directed plaff. to give evidence by affidavit. Plff. has filed affidavit vide 15C. The counsel for plaff. today says that no further evidence is to be given for ex parte disposal. The case is closed for evidence. Arguments heard. Judgment on 8-12-79.
Sd/K. L. Sharma,
Judgment was thereafter pronounced un 18-12-79 allowing the petition and decreeing restitution of conjugal rights ex parte against the wife with costs.
6. It was urged before me that the decree in the present case is liable to be set aside for being based on no evidence, and on the further ground that the wife's application dated 16-7-79 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 affidavit of the husband dated 9-10-79 is the only evidence, besides the petition. The question is whether that was good evidence in law to base the decree on.
7. Section 21 of the Hindu Marriage Act, provides that:--
'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.' Rule 15 of the Hindu Marriage and Divorce Rules, 1956, framed by the Allahabad High Court in exercise of the powers conferred by Sections 14 and 21 of the Act provides as follows:--
'15. Mode of taking evidence-- 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 and shall be examined and may be cross-examined and re-examined like any other witness:Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that 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 and after such cross-examination may be re-examined by or on behalf of the party by whom such affidavit was filed.'
8. I may, by contrast, refer to Rule 8 of the said Rules 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.
9. The normal procedure for the hearing of the suits is that prescribed by Order 18 of the Code of Civil Procedure. That does not permit the taking of oral evidence on affidavit at the trial of a suit. Rule 1 of Order 19, however, provides as follows:--
'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;
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced an order shall not be made authorizing the evidence of such witness to be given by affidavit.'
10. 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 authorise the taking of affidavit evidence against a party in his absence. Rule 10 of Order 8 provides 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, a decree shall be drawn up.'
11. I may, in this context, also read Section 23 of the Hindu Marriage Act which distinguishes the trial of a matrimonial matter from other civil matters. It is as follows :--
'23. Decree in proceedings-- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that--
(a) any of the grounds for granting relief exists and the petitioner, except in cases where the relief is sought by him on the ground specified in Sub-clause (a), Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not, in any manner, been accessory to or connived at or condoned the act or acts complained of or where the ground for the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(bb) when a divorce is sought on the ground of mutual consent such consent has not been obtained by force, fraud or undue influence, and
(c) the petition not being a petition presented under Section 11 is not presented or prosecuted in (Collusion with respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but net otherwise the court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case, where it is possible so be do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:
Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clause (ii), Clause (iii), Clause (iv), Clause (v), Clause (vi) or Clause (vii) of Sub-section (1) of Section 18. (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing pf the proceeding have due regard to the report.
(4) in every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.'
The Judge in a matrimonial matter may not decree relief merely because the necessary grounds for relief stand formally proved, for the law ordains that even where it is proved that any of the grounds for granting any reliefs exists, the Judge has to satisfy himself that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and has not been in any manner accessory to or connived at or condoned the act or acts complained of; that there is no collusion between the parties or that there has not been any unnecessary or improper delay in instituting the proceeding; and lastly, that there is no other legal ground why relief should not be granted. I do not think that a Judge can properly do so without personally examining the petitioner, more particularly in an undefended case. A further duty is cast on the court to make every endeavour to bring about a reconciliation between the parties before proceeding to grant any relief under the Act.
12. The course of the proceedings recited hereinabove may be seen in the light of the above statutory provisions. The first thing which strikes me is that the learned Additional Judge failed in his duty to hear and decide the application dated 16-7-79 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 pendente lite. That application was duly supported by an affidavit. The learned Additional Judge could not have required the wife to file a written statement without deciding that application. Further, there was the sworn declaration in the affidavit of the wife that her age was 16 years and there was a photostat copy of her mark sheet of (Matter in vernacular. Omitted here. Ed.) showing the date of her birth to be 23-5-63. The learned Additional District Judge should not have, under the circumstances, summoned the wife to appear in court in order to find out her correct age as the first thing in the case and at any rate the learned Additional District Judge could not have held on 18-8-79 that the wife was not a minor simply because she did not appear in person in response to the court's order, and even without there being any evidence from the side of the husband to rebut the wife's declaration in her affidavit that her age was 16 years. In passing that order on 18-8-79 a serious error committed by the learned Additional District Judge in exercise of his jurisdiction lay in the fact that although the parties had made an application on 30-7-79 for ten days' time for filing compromise the learned Judge did not make any efforts to bring about a reconciliation between them when the compromise was not filed on 7-8-79, which was the date originally fixed by the learned Judge on 30-7-79, in spite of the ten days' time asked for by the parties. The order holding that the wife was not a minor was punitive in character. Even where a defendant is absent, an ex parte decree cannot be passed against him without there being satisfactory evidence in proof of the plaintiff's case. There was no evidence in proof of the husband's case that the age of the wife was about 20 years on the date of the petition. The correctness of that fact was challenged by the wife in the application made on her behalf on 16-7-79. Even if the original petition could be read as evidence of facts stated therein under Section 20(2) of the H.M. Act, the age of the wife is mentioned only in the title of the petition and the correctness of the title has not been verified to be true in the verification clause, and consequently it cannot be said that there was any evidence in support of the husband's case that the wife was an adult and not a minor when the petition was presented I may add that even in the affidavit that has been filed to prove the husband's case and on which the ex parte decree under appeal is based, it is not said anywhere what age of the wife was.
13. Learned counsel for the husband, however relied on Order 19 Rule 1 of the Code of Civil Procedure for supporting the decree under appeal. He urged that it was open to a court to allow affidavit evidence at the trial of a suit. The language of the rule shows that adjudication of the rights of the parties in a civil suit cannot be generally based on affidavit evidence. All that the rule permits is that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing and that too on such conditions as the court thinks reasonable and after the court has permitted the same by an order passed for sufficient reasons. This rule appears to refer to evidence of a formal character, may be, when it is difficult or highly inconvenient to insist upon the personal attendance of a witness. Even so, before affidavit evidence can be taken at the hearing of a suit, the court must record an order to that effect and it can be done only in case there is sufficient reason for doing so.
14. What is regrettable in this case is that although the learned Additional District Judge has recorded in his order dated 5-12-1979 that his learned predecessor had directed the petitioner to give evidence by affidavit. I have been unable to discover any such direction or order of the predecessor of the Learned Judge who finally heard and decided the case. The affidavit is dated 9-10-1979 and all that the order sheet of that date records is that the Presiding Officer was on earned leave and, when the case was called out, the husband appeared and filed the affidavit on which the Officer in charge passed an order that the case may be put up on 18-10-1979 for further orders. The earlier order dated 18-8-1979 did not permit or direct the giving of evidence by affidavit.
15. In my view the affidavit of the husband only, without anything more, could not be treated to be good and sufficient evidence in the case and the judgment could not be properly based thereon. The learned Judge should have, at any rate, satisfied himself by examining the husband personally, in order to elicit the truth, before decreeing relief. The proviso to Rule 15 of the Hindu Marriage and Divorce Rules, 1956, does not advance the husband's case much further. Affidavit evidence is lawfully admissible thereunder but the mere formal proof of the petitioner's case does not absolve the Judge of his duty to satisfy himself about the truth of the facts stated and the propriety of granting relief in all the facts and circumstances of the case. It is the good conscience of the Judge which must be satisfied before decreeing relief; and in undefended cases his duty to do so is greater and more difficult to perform than in defended cases.
I may observe one rather serious infirmity in the proceedings in this case. The case was transferred by the Court of the District Judge by an order dated 13-11-1979, on an application made by the husband under Section 24 of the Code of Civil Procedure. May be, the reasons for the transfer were genuine, the order was innocuous and no prejudice could be caused to the wife by the transfer of the case from the Court of the III Additional District Judge to that of the IV Additional District Judge, yet the fact remains that the wife was not given any notice of the transfer application which is mandatory under Section 24 of the Code of Civil Procedure when a case is transferred on the application of a party. It also appears to me that the wife could justly say in the present case that she had no notice of the proceedings after 18-10-1979, and at any rate she had no notice or knowledge of the fact that the case was transferred to the Court of the IV Additional District Judge and of the date of hearing fixed in that court. The manner of fixing of the date of the hearing also appears to me to have been rather irregular.
16. In the result, the appeal succeeds and is allowed with costs. The judgment and decree under appeal, and the proceedings taken on and from 16-7-1979 onwards are quashed. The matrimonial Suit No. 87 of 1979, originally of the Court of the District Judge, Allahabad is remanded for a fresh hearing from the stage of the applications made by the wife on the 16th July, 1979. The Court of the District Judge may either hear and decide the case himself or assign it to any other Court of Additional District Judge in the Allahabad Judgeship, for hearing and decision, in accordance with law. The office of this Court shall send down the record of the lower court to the Court of the District Judge, Allahabad along with a copy of this judgment, as soon as may be and without waiting for the preparation of the decree in this Court so that the record reaches the Court of the District Judge. Allahabad latest within six weeks from today; and the 3rd February, 1981 is fixed under Order 41, Rule 26-A, of the Code of Civil Procedure, for appearance of the parties in the Court of the District Judge. Allahabad, for taking further orders in the case.