Binod Kumar Roy, J. - (1.) This is wife's appeal under Section 19(1) of the Family Courts Act attacking the validity of the judgment and decree granting divorce. Facts :
(2.) The relevant facts for the purpose of disposal of this appeal are in a narrow compass: The marriage between the parties was solemnised in March, 1982. The relationship, however, ceased to be cordial. According to the husband-respondent, the appellant deserted him, as a result of which on 30th July, 1988, he filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. His application was allowed by order dated 7.1.1991 against which no appeal was preferred. Despite the directions contained in the aforementioned order, the marital relationship between the parties could not be re-established. An attempt was made by him in that regard but it proved futile. Since the marital relationship was not established from 7.1.1991 till 17th January, 1992, hence his application seeking divorce. This appellant resisted the allegations on the grounds, inter alia, that she never intentionally refused to cohibit with her husband; that her husband did not keep her at his house nor has allowed her to enter the house, despite the fact that she was all along willing to go to the house of her husband; that in this regard she sent four letters to her husband; out of whom three were sent under certificate of posting on 27.4.1991, 22.8.1991 and 12.12.1991 respectively which, however, were not even replied by her husband; that her father, as well as relations went to her husband and requested him to take her to his house but her husband on the pretext of the illness of his father, never came to take her or became ready to keep her with him and thus she has not violated the order in question; that her husband is himself guilty of not complying with the order granting restitution of conjugal rights; that on 22.6.1993 when her father, uncle and brother went to her husband for the last time, they were disclosed by her husband for the first time that he has filed the instant case. Both sides were afforded opportunity to engage Counsel of their choice. Following two issues were framed by the learned Judge : "1. Whether die respondent did not comply with the decree for restitution of conjugal rights passed by the 1st Additional Civil Judge, Bareilly in Suit No. 417 of 1988 on 7.1.81, if so, its effect? 2. To what relief, it if any, is the petitioner entitled ?" The learned Judge, answered these two issues by recording following findings : (1) "Since the evidence of the petitioner on the point that the respondent did not comply with the decree for restitution of conjugal rights passed in H-M.No. 417/88 on 7.1.1991 and the respondent too has not succeeded in establishing that she made any sincere and effective efforts to comply with die decree, the petitioner has become entitled to a decree for divorce under Section 13 (1-A) Clause (ii) of the Hindu Marriage Act, as a period of more than one year had elapsed after me passing of the decree dated 7.1.1991 when the present petition was filed on 18.1.1992. The petitioner is accordingly entitled to claim divorce. The issue is accordingly answered in the affirmative." (2) "In view of my findings above that on account of non-compliance with the decree of restitution of conjugal rights passed in H.M. No. 417/ 88 passed by the learned 1st Additional Civil Judge, Bareilly on 7.1.1991 for over a period of one year, the petitioner become entitled to a decree for divorce under Section 13(1-A) Clause (ii) of the Hindu Marriage Act and the issue is answered accordingly." The Submissions :
(3.) According to Mrs. Ramo Devi Gupta, the learned Counsel for the appellant on 11.5.1994 the appellant filed seven documents as per the list but on that day, the learned Judge was on leave. On 20th May, 1994, the case was adjourned to 15th July, 1994. On 15th July, 1994 the respondent examined himself as PW 1. The learned Counsel of the appellant was not present and she went to call him but after she returned back, though without her Counsel, the Court had already made an endorsement on the deposition "Cross-Nil" and thereafter in the absence of her Counsel the appellate was asked certain questions by the learned Judge to which she gave answers which were noted and thereafter she was cross-examined arid discharged and without hearing the parties 1.9.1994 was fixed for judgment. The appellant had also come alongwith her witnesses who were sitting at the Lawyer's table. Even though the appellant had answered to the Court question stating that she was ready to go alongwith her husband and she is still ready to go alongwith him, there was no cross-examination in that regard and thus the finding is vitiated. The letters which were written by her to the husband shows her willingness to go out erroneously interpreted. The Court having allowed the appellant to have the advantage of legal assistance of the Counsel, due to his absence ought to have adjourned the proceedings and in not doing so vitiated the further proceeding and the judgment. It has further committed an error in rejecting the petition filed by the appellant on the very next day as well as on 1.8.1994 requesting the Court to permit cross examination and leading of further evidence. The Court has failed to appreciate that the husband-respondent has not said a word in his examination-in-chief that the assertions made by the wife-appellant in her rejoinder are incorrect. Since reasonable opportunity of hearing was not afforded to the appellant the trial stood vitiated and consequently the judgment under appeal is liable to be set aside on this ground.;