Law: Civil Procedure Code (V of 1908)

Section: O. I, r. 10

Civil Procedure Code (V of 1908), O. I, r. 10 and O. X11, r. 6 read with O. XV, r. 2-Restitution of conjugal rights, suit for--Consent decree-Defendant allegedly plaintiff's wife admitting to be plaintiff's wife but on co-defendant's claim that she was his wife and not of plaintiff, plaintiff withdrawing suit against co-defendant and praying for passing decree on admission of defen dant-Court refusing to decree suit and fixing date for examina tion of parties-Defendant on such date staging volt face and admitting to be co-defendant's wife-Contention that Court ought to hare struck off co-defendant's name and passed decree for restitution of conjugal rights, held, not correct-Plaintiff not entitled as of right to give up any defendant-Court may or may not grant such prayer-Nor Court obliged to pass decree at once. Petitioner-plaintiff argued that the trial Court ought to have struck off the name of co-defendant and passed a decree for restitution of conjugal rights in favour of his client either on the date when defendant filed her written statement or at least on the date when his client gave up co-defendant and asked for a decree against defendant only. According to plain reading of rule 10 of Order 1, C. P. C. it would be applicable only if it were held that co-defendant was a person improperly joined as a defendant. Can he be so described? Here is a dispute about the nikah of the same woman between them. Each claims her as his wife. It was argued that the only question involved in the suit was whether she is the wife of the plaintiff? She cannot be the wife of both of them at one and the same time. If she is held to be the wife of plaintiff it would mean that she is not the wife of the co-defendant and vice versa. In case defendant No. 1 had not subsequently repudiated her earlier statement, he had, a right to prove not only that the woman was in fact his wife but also that there was collusion between plaintiff and the woman concerned. To strike out the name of such a claimant and paying no heed to his allegations of collusion, and proceed to pass a decree for the restitution of conjugal rights would not only lead to the undesir able…