RAM RATI Vs. MATA PRASAD

JUDGEMENT

(1.) The first one of these First Appeals from Order No. 425 of 1976 is by the wife and is directed against an order refusing to set aside an ex parte decree for restitution of conjugal rights, passed on 19th Sept., 1975 on the respondent-husband's petition under Sec. 9 of the Hindu Marriage Act, 1975.

(2.) The second one of these first appeals No.115 of 1980 is by the husband and is directed against the judgment and decree dated 23rd Jan., 1980 dismissing the husband's petition for divorce under Sec. 13 of the Hindu Marriage Act. This appeal has wrongly been registered as First Appeal from Order. It ought to have been registered a First Appeal from decree. Sine the court-fees of Rs. 37-50P only is payable on an appeal from decree under the Hindu Marriage Act, and has been paid on the memorandum of appeal, I treated the appeal as an Appeal from decree and proceeded to bear it without waiting for having it registered as a regular first appeal from decree. The Office of the Court shall rectify the error in due course.

(3.) Having heard learned counsel for the parties I am satisfied that both these appeals must be allowed and the matrimonial petitions giving rise to these appeals remanded to the same court for a fresh trial subject to certain observations and directions contained in this judgment. F.A.F.O. No. 425 of 1976 4. Suit No. 10 of 1975 was instituted in the court of the District Judge, Etawah by the husband Mata Prasad for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act, on 29th April, 1975. Summons were issued in due course but even before they were served there was an application for amendment which was allowed and the summons of the amended petition were ordered to be issued. On 4th July, 1975, the wife, who was the respondent before the trial court, applied for 2 months time for filing a written statement, which was allowed by order dated 11th July, 1975, and 19th Sept., 1975 was fixed for issues. The case was thereafter transferred by the court of the District Judge to the court of the 1st Additional District Judge Etawah, and that court fixed the 9th Sept., 1975 for filing written statement and 19th Sept., 1975 for issues. On 9th Sept., 1975, the wife made an application under Sec. 24 of the Hindu Marriage Act, for Rs. 1,000.00 towards expenses of the proceeding. Another application was made therewith praying that the proceedings in the case may be stayed and she may be permitted to file her written statement after the decision of the application under Sec. 24. It was mentioned in that application that the Sub-Divisional Magistrate, Bharthina. had awarded a maintenance allowance of Rs. 100 /- per month to the wife against the husband. The learned Additional District Judge rejected both these applications on the ground that no one was present "to press it", and on 19th Sept., 1975 decreed that suit ex parte by the following order :