P. N. MOOKERJEE, J.

( 1 ) THE appellant before us and her husband, who is the respondent were the first petitioner for divorce by mutual consent. That petition was filed in the court below on December 20, 1963. Thereafter, on November 25, 1964, an application was filed by the present appellant for being allowed to give evidence bv affidavit under circumstances stated in the said petition

( 2 ) THE application does not appear to have been opposed by the respondent but the learned trial Judge, being of the opinion that, having regard to the language of Section 28 (2) of the Special Marriage Act, under which the instant proceeding was filed for divorce by mutual consent, affidavit evidence could not be allowed and Order 19 rule 1 of the Code of Civil Procedure, which permits such evidence, had no application rejected the said application. The learned trial Judge relied for the purpose upon the following words in the statute (Section 28 (2)) namely, "the District Court shall be satisfied after hearing the parties" and he seems to have been of the opinion that, when the statute says "hearing the parties", the parties should be personally present in Court and, that being his view of the

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