ORDER :- This revisional application under Article 227 of the Constitution of India is directed against an order being No. 4 dated 17th September, 2007 passed by the learned District Judge at Alipore in Mat. Suit No. 1420 of 2007, whereby an application filed jointly by the parties under Section 151 of the Code of Civil Procedure for relaxing the six months restricted period as prescribed under Section 28(2) of the Special Marriage Act for moving the motion by the parties for the second time and thereby inviting the Court to pass a decree for divorce on mutual consent before expiry of six months restricted period, was rejected by the learned trial Judge.

2. The propriety of such an order is under challenge in this revisional application at the instance of the petitioner No.1 (husband).

3. Let me give the short background of this case under which such an application was filed jointly by the parties before the learned Trial Judge.

4. Admittedly the marriage between the parties was solemnized at Calcutta on 17th October, 2001. The said marriage was registered under the Special Marriage Act. The parties live together as husband and wife till 27th October, 2001. Thereafter, the petitioner (husband) left for USA and the parties never cohabitated as husband and wife after 27th October, 2001.

5. Despite best efforts, the parties could not reconcile their differences. Since the martial ties between the parties has completely and irretrievably broken down between the parties, both the parties decided to dissolve their marriage by a decree of divorce by mutual consent.

6. Accordingly, an application for divorce was filed by the parties on 10th August, 2007.

7. In the said matrimonial suit, a joint petition under Section 151 of the Code of Civil Procedure was filed by the

parties, inter alia, praying for relaxation of the six months restricted period for enabling the parties to move the learned Trial Judge jointly for passing a decree for dissolution of marriage by mutual consent even without waiting till the expiry of the period of six months from the date of presentation of the joint petition for divorce on the ground that continuation of the marriage will simply increase the agony of the parties.

8. The said joint petition was supported by affidavit. So far as the husband is concerned, his affidavit was affirmed by power of attorney holder on his behalf. The wife, however, affirmed the said affidavit herself.

9. When the said application was taken up for hearing, question cropped up before the learned Trial Judge as to whether the Court can proceed on the basis of the said application under Section 151 of the Code of Civil Procedure as the same was not affirmed by the petitioner (husband) himself.

10. Considering the language of the provision contained in Section 28 of the Special Marriage Act and the intent of the said provisions, the learned Trial Judge ultimately held that in order to get the relief by way of divorce by mutual consent, it is necessary that the joint petition for divorce must be moved by both the parties on second occasion, but since one of them being the husband is absent, the ingredients of Section 28 (2) of the Special Marriage Act, was not fulfilled, particularly in view of the fact that in the absence of one of the parties to the marriage, Court cannot presume that the absentee party has not withheld his earlier consent.

11. Holding as such, the learned trial Judge rejected the petitioners' prayer for allowing them to move the joint petition for divorce on the second occasion by relaxing the restriction regarding moving this application before expiry of six months from the date of presentation of the said petition.

12. Let me now consider as to how far the learned Trial Judge was justified in rejecting the petitioners' said application under Section 151 of the Code of Civil Procedure.

13. For considering the propriety of the impugned order, this Court is required to consider the following two questions :-

1. Whether the pers

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