RAGHUNATH PRASAD Vs. URMILA DEVI

JUDGEMENT

(1.) THIS revisional application is directed against the order dated 29-10-1971 passed by the learned District Judge, Varanasi in the case No. 2 of 1971 which has been filed by the applicant claiming a decree against the Opposite Party No. 1 for restitution of conjugal rights.

(2.) ON 14th April, 1971, the appli cant filed an application before the court below praying that the Opposite Party No. 1 be directed to produce herself for reconcilia tion and to produce herself before the lady Doctor of Civil Hospital, Varanasi for her medical examination. The Opposite Party No. 1 filed an objection to the said appli cation on 15-5-1971. She alleged inter alia that as there had been "chhuttam chutta" (perhaps meaning thereby 'divorce') between the parties the applicant was not entitled to have the medical examination of the Oppo site Party No. 1. It was, however, not al leged in her aforesaid objection that she would not appear before the Court in con nection with the proposed reconciliation proceedings. On 23-7-1971 the learned Dist rict Judge after hearing the counsel for the parties' directed the applicant and the Oppo site Party No. 1 to be present in person on the next date of hearing which was fixed for 27-8-1971. The case could not, how ever, be taken up on 27-8-1971 and it was adjourned to 24-9-1971. As the parties were not present in person on 24-9-1971 the case was adjourned to 29-10- 1971 for disposal of the aforesaid application and objection and for issues and the parties were required to be present in person. On 29-10-1971 when the case was taken up the counsel for the Op posite Party No. 1 stated that there were ab solutely no chances for reconciliation where upon the learned District Judge ordered that the attendance of the Opposite Party No. 1 in court would not be necessary and he re called his previous order in this behalf. It is this part of the order of the Court below which is being impugned in this revision.

(3.) IN the case on hand the court below had at first ordered the parties to ap pear in person. However, on 27th October, 1971, the learned counsel for the Opposite Party No. 1 stated that there were absolutely no chances for reconciliation, whereupon the Court ordered that the attendance of the opposite Party No. 1 would not be necessary] and it recalled its previous order in this be half. This was clearly not in consonance with the provisions of sub-section (2) of Sec tion 23 of the aforesaid Act. The court be-low did not direct the Opposite Party No. 1 to appear in person and state about that fad nor did it ask for her personal affidavit. In my view the requirements of the law were not complied with and the Court below fail ed to perform its duty laid down in the aforesaid provision of the Act