1980 Supreme(All) 556

IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
ANJULA - Appellant
Versus
MILAN KUMAR - Respondents
First Appeal 182 Of 1980
Decided On : 12/23/1980

In a matrimonial matter, the court has a duty to make every endeavor to bring about a reconciliation between the parties before proceeding to grant relief.

Headnote:

HINDU MARRIAGE ACT - RESTITUTION OF CONJUGAL RIGHTS - EX PARTE DECREE - VALIDITY - EVIDENCE - AFFIDAVIT EVIDENCE - ADMISSIBILITY - CONDITIONS - DUTY OF COURT - RECONCILIATION - TRANSFER OF CASE - NOTICE TO PARTIES - IRREGULARITIES - REMAND.

Fact of the Case:

The appellant-wife challenged an ex parte decree passed against her for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The husband alleged that the parties were married in May 1977 and last resided together between May and July 1978. The wife left for her parents' home in Jabalpur in July 1978 and did not return despite the husband's efforts to bring her back. The original petition was filed in the district court at Allahabad in April 1979 and transferred to the Court of the IIIrd Additional District Judge, Allahabad, for hearing and disposal. The wife did not file a written statement and applied for expenses of the proceedings and maintenance pendente lite under Section 24 of the Hindu Marriage Act. She also claimed to be a minor, born on 23-5-1963, and submitted a photostat copy of her mark sheet as proof. The court ordered the wife to appear in person to determine her age and held that she was not a minor. The wife's application for expenses and maintenance was not decided. The husband filed an affidavit as evidence, and the court passed an ex parte decree in his favor on 18-12-1979.

Finding of the Court:

The court held that the ex parte decree was not valid and set aside the proceedings from 16-7-1979 onwards. It found that the learned Additional District Judge erred in not deciding the wife's application for expenses and maintenance before requiring her to file a written statement. The court also held that the learned Judge erred in holding that the wife was not a minor without any evidence from the husband's side to rebut her declaration in her affidavit. The court further held that the learned Judge failed in his duty to make every endeavor to bring about a reconciliation between the parties before proceeding to grant relief. The court also found that the affidavit of the husband alone, without anything more, could not be treated as good and sufficient evidence in the case and that the judgment could not be properly based thereon. The court also held that the transfer of the case from the Court of the III Additional District Judge to that of the IV additional District Judge without notice to the wife was irregular.

Issues: 1. Whether the ex parte decree for restitution of conjugal rights was valid. 2. Whether the affidavit evidence of the husband was admissible and sufficient to support the decree. 3. Whether the court erred in not deciding the wife's application for expenses and maintenance before requiring her to file a written statement. 4. Whether the court erred in holding that the wife was not a minor without any evidence from the husband's side to rebut her declaration in her affidavit. 5. Whether the court erred in failing to make every endeavor to bring about a reconciliation between the parties before proceeding to grant relief. 6. Whether the transfer of the case from the Court of the III Additional District Judge to that of the IV additional District Judge without notice to the wife was irregular.

Ratio Decidendi: 1. An ex parte decree for restitution of conjugal rights cannot be passed without satisfactory evidence in proof of the plaintiff's case. 2. Affidavit evidence is admissible at the trial of a suit only in exceptional circumstances and on such conditions as the court thinks reasonable. 3. The court has a duty to decide an application for expenses and maintenance before requiring the defendant to file a written statement. 4. The court cannot hold that a defendant is not a minor without any evidence from the plaintiff's side to rebut the defendant's declaration in his/her affidavit. 5. The court has a duty to make every endeavor to bring about a reconciliation between the parties before proceeding to grant relief in a matrimonial matter. 6. The transfer of a case from one court to another without notice to the parties is irregular.

Final Decision: The appeal was allowed, the judgment and decree under appeal, and the proceedings taken on and from 16-7-1979 onwards were quashed. The matrimonial suit was remanded for a fresh hearing from the stage of the applications made by the wife on 16th July, 1979.