ANNALIE PRASHAD Vs. ROMESH PROSHAD

JUDGEMENT

(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 position under the statute, he ruled out affidavit evidence. He also expressed the view that, as divorce was sought by mutual consent, it was desirable that the parties themselves should be present in Court.

(3.) In our opinion, neither of the above two reasons can be sustained in law. The Special Marriage Act by Section 40 attracts the Code of Civil Procedure subject, of course, to the other provisions of the said statute and to such rules as the High Court may make in that behalf. The learned trial Judge does not say that there is anything in the statute or in the rules, which would conflict with the view that affidavit evidence would be permissible, unless we agree with him that the Act, having prescribed that the parties should be heard, would necessarily require their personal appearance or presence before the Court. We do not, however, think that that is the consequence of the words "hearing the parties" and, accordingly, the reason given by the learned trial Judge in that behalf cannot be accepted We are also unable to agree that, in a case of divorce by mutual consent, affidavit evidence should be excluded on the ground that in such a case, it is desirable that the parties themselves should be present in Court. In the premises, Order 19 of the Code of Civil Procedure would be attracted by the above special statute as part of the Code and would not be excluded either expressly or by necessary implication.