Deoki Nandan, J. - (1.) This is a First Appeal from an ex parte decree passed against the appellant-wife for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.
(2.) It is not necessary to state the facts of the case in any great detail for the purposes of the decision of this First Appeal. Suffice it to say, that the parties are Hindus and are said to have been married at Allahabad in the month of May 1977 and to have last resided together at Daraganj, Allahabad between May to July 1978, and in July 1978 the wife is said to have departed for her parents' home at Jabalpur, and not to have come back in spite of the husband's efforts to bring her back.
(3.) The original petition was presented in the district court at Allahabad on 24-4-1979. By an order dated 28-4-1979 the court of the District Judge Allahabad transferred it to the Court of the IIIrd Additional District Judge, Allahabad, for hearing and disposal. A summons was thereupon issued by the latter court fixing 25-5-1979 for written statement and 1-6-1979 for issues. The wife did not file any written statement on 25-5-1979. Instead, an application was moved on 1-6-1979 by a local Advocate on behalf of the wife praying for two months' time for filing the written statement. The husband's counsel opposed the application and pressed for heavy costs. The learned Additional District Judge fixed 16-7-1979 for filing the written statement, and 19-7-1979 for issues, but on payment of Rs. 20/- as costs. On 16-7-1979 an application was moved on behalf of the wife for an order for payment of Rs. 500/- for the expenses of the proceedings and Rs. 500/- per month as maintenance pendente lite under Section 24 of the Hindu Marriage Act. This application was accompanied by an affidavit by the wife, sworn at Jabalpur, in which the wife declared her age to be 16 years. Another application was moved on behalf of the wife by her local counsel at Allahabad stating that her age had wrongly been shown as 20 years in the Cause Title of the petition, that her date of birth was 23-5-1963 and thus she was about 16 years of are and a minor, and a photostat copy of her mark sheet of the (Matter in vernacular. Omitted here. Ed.) was filed in proof thereof. It was further stated and prayed in the application that the suit had not been properly filed and was not maintainable and may be dismissed as such. The learned Additional District Judge did not pass any orders on the application for expenses of the proceedings, but passed the following order on the application for dismissal of the suit as not maintainable. "Seen. Summon the Resp. on 19-7-79. Sd/.Illegible 16/7 Date changed to 21/7 Sd/-Illegible" 16/7 It may be that the latter order changing the date was passed the same day, for the figure '8' of the date '18/7' put under the initials of the learned Judge may be a very bad way of writing the figure '6'; for the order sheet of 16-7-1979 maintained by the Reader of the court records that (Matter in vernacular. Omitted here. Ed.) From the order sheet it further appears that there was direction made by the learned Judge on the back of the 'application under Section 24 that it may be put up on 30-7-1979. On 21-7-79 an application was moved by the local counsel of the wife stating that he had received a telegram, which was enclosed with the application, that she was unable to attend court on account of illness and that some other date may be fixed for her appearance. The learned Judge ordered:- "Seen 'illegible' be produced on 30/7, Sd illegible 21/7." On 30th July an application was moved on behalf of the wife, by another counsel Mr. B. N. Nem saying that the parties were making serious efforts to compromise the matter and praying for adjournment of the case for ten days. Learned counsel for the husband endorsed "no objection" on that, application, and 7-8- 1979 was fixed by the learned Additional District Judge "for disposal of the case.";