Amir Das, J.

1. This first appeal at the instance of wife-Appellant arising out of the order and decree dated 30.9.86 and 8.10.86 respectively, passed by 4th Additional Judicial Commissioner, Ranchi in Matrimonial Suit No. 12/86 whereby and whereunder their marriage has been dissolved by an ex parte decree.

2. The husband-Respondent Vijay Kumar Verma made an application before Judicial Commissioner, Ranchi against his wife-Appellant Madhuri Verma for dissolution of their marriage on the ground of cruelty as envisaged Under Section 13 of the Hindu Marriage Act (herein-after referred to as The Act). The husband stated in the petition that his marriage with the Appellant was solemnized on 8th of May 1984 according to Hindu Rights and Customs at Gaya, thereafter his wife-Appellant came to Ranchi. After stay for some days went back at her fathers place where she gave birth of child on 15.2.85. She again came back to her husband-Respondents house on 22.4.85 and after a stay for about ten months she left for Gaya on 28.2.86 where she gave birth of Anr. child in the month of March, 1986. The Respondent alleged that his wife-Appellant was suffering from polio but such fact was deliberately concealed at the time of negotiation. She was also suffering intermittently from mental disorder of such a kind and to such an extent that she broke her bangles, washed of the Vermillion, caught hold the neck of her husband and made an attempt to set herself on fire by pouring kerosone oil over her body. He further alleged that she hurled abuses in presence of the friends, tried to kill the baby and behaved cruelly with her in-laws. Her cruel behaviour was to such extent that it can not reasonably be expected to live with her. Hence suit for dissolution of their marriage was filed.

3. The case was put upon 12.4.86 before the presiding officer who after admitting the case made an order to issue notice to the wife Appellant fixing the date 13.5.86. In pursuance of the notice the wife-Appellant appeared with, a prayer for time to file the written statement which was allowed and the case was adjourned to 23.6.86. On the subsequent dates, namely, 23.6.86, 6.8.86 and 30.8.86 the time was allowed for filing written statement but no written statement was filed on her behalf. The Additional Judicial Commissioner, Ranchi adjourned the hearing of the case to 23.9.86 on which date one witness was examined and on the next date i.e. on 27.9.86 two witnesses were examined and ultimately on 30.9.86 an ex-patte order was made whereby their marriage has been dissolved by decree of divorce which was signed on 8.10.86.

4. Mr. Amreshwar Sabay learned Counsel appearing on behalf of the wife-Appellant challenged the correctness and legality of the exparte decree mainly on three grounds. In the first place his contention is that the learned Addl. Judicial Commissioner, Ranchi committed a wrong in admitting the evidence of the Respondent and his father as sufficient to prove the mental disorder. To prove such mental disorder the medical evidence is necessarily required. His further contention is that there is no plea that such mental disorder from which the Appellant is said to have been suffering was incurable in nature. He has relied upon the two case laws reported in : AIR 1988 SC 2260 (Ram Narain v. Rameshwari) and : AIR 1991 Cal 123 (Pramatha Kumar Maity v. Ashima Maity). In the second place the contention of Mr. Sabay is that besides the ground of mental disorder the permanent disablement of the Appellant was also the ground for seeking relief but such fact of practicing fraud has not been evidenced. In the third place his submission is that the Appellant was confined by her husband in her house and was detained and not allowed to come out of the house and by that reason she was prevented from appearing in the Court. This fact has already been mentioned in the memo of appeal supported by an affidavit. Lastly he has replied that consideration of subsequent event is not provided under Order 41 Rule 33 of the Code of Civil Procedure unless an additional evidence is adduced in Court. He has also referred to Order 41 Rule 27 of the Code of Civil Procedure providing for additional evidence. Mr. Sahay further submitted that the Respondent can not be allowed to take benefit for his own fault because he remarried during the pendency of the appeal. Not only this the Appellant appeared in this appeal on 25.1.88 whereas the second marriage is said to have been solemnized on 21.4.88. In other words knowingly and consciously that the appeal is pending he remarried Anr. lady and so on that ground the appeal can not be infructuous. He cited a case law reported in : AIR 1990 Bom 84 (Smita Dilip Rane v. Dilip Datta-ram Rane).

5. On the other hand, Mr. P.S. Dayal, learned Counsel appearing on behalf of the husband-Respondent supported the correctness and legality of the trial Courts order and replied firstly that the Appellant was residing at her fathers house at Gaya while the application for divorce was made and during her stay there she executed vakalatnama on 13 5.86. This manifestly shows that the Appellant was never confined by her husband at Ranchi. In this context his further submission is that Mr. Akhilesh Verma, own brother of the Appellant is an advocate practicing at Gaya who bad been making pairvi and looking after the case on behalf of the Appellant. Inspite of his knowledge that a number of adjournments were granted for filing the written statement the Appellant deliberately and knowingly avoided to answer the case resulting in the ex parte order being passed Mr. Dayal also replied that according to Section 15 of the said Act after the expiry of thirty days the divorced spouse is at liberty to marry again. After the expiry of the period of limitation the Respondent married Anr. lady who is living with him. In such circumstance the second wife should be made party to the appeal otherwise the appeal becomes infructuous. Mr. Dayal brought to the notice of this Court that besides the divorce proceeding the Appellant herself had lodged a complaint case against her husband- Respondent for the offence Under Sections 394,420 and 498 of the Indian Penal Code which was dismissed. She also made an application for maintenance allowance against her husband-Respondent and the father of the Appellant initiated a proceeding Under Section 107 of the Code of Criminal Procedure. According to Mr. Dayal these are the subsequent events which can be taken into consideration by the appellate Court. These subsequent events lead to only inference that the relation between the husband-Respondent and wife-Appellant is so tense that it is not safe for them to live together. Mr. Dayal also cited a catena of decisions on the point of cruelly namely AIR 1979 J&K 4 (Kamla Devi v. Balbir Singh) 1975 SC 1534 (Dastane v. Dastaue) : AIR 1990 Cal 367 (Santana Banerjee v. Sachindra Nath Banerjee) : AIR 1986 Pat 362 (Rajkishore Prasad v. Raj Kumari Devi) and 1988 DMC 330 (Savitri Balchandani v. Mulchand Balchandani). Lastly he submitted that there is a least chance of restoration of conjugal life of husband-Respondent and wife-Appellant.

6. Having ascertained the material propositions as advanced at variance by both the parties the following issues are framed for determination of this appeal:

1. Are the remedies which are available for setting aside an ex-parte decree under Order 9 Rule 13 of the Code of Civil Procedure available to the Appellant to challenge the ex- parte decree in an appeal against the ex- parte decree

2. Is the evidence adduced by the husband-Respondent sufficient to prove that the wife-Appellant has been suffering from mental disorder of such a kind and to such an extent that the husband-Respondent can not reasonably be expected to live with the wife-Appellant

3. Has the non-compliance of the proviso Under Section 23 Sub-Section 2 of the Act made the proceeding a ground for invalidating the decree

4. Has the non-joinder of the second wife of the husband-Respondent made the appeal infructuous

5. Can the subsequent events be taken into consideration by the appellate Court

7. Issue no. 1.-There are two alternate remedies in any case in which the decree is passed ex parte against the Defendant. The first remedy is under Order 9 Rule 13 of the Code of Civil Procedure. and second remedy to file an appeal directly against the ex parte decree. In the first case the Defendant may apply to the Court by which the decree was passed, for an order to set aside if he satisfies the Court that the summon was not duly served or that he was prevented by sufficient cause from appearing when the suit was called on for hearing and if the Court is satisfied it shall make an order setting aside the ex-parte decree and appoint a day for proceeding with the suit. In the instant case the non-service of summons on the Defendant is not in question rather sufficient cause was with her which prevented her from appearing before the Court. The Appellant instead of taking recourse under the provisions of Order 9 Rule 13 of the Code of Civil Procedure has preferred this appeal. Thus, in the instant appeal which is preferred directly against the ex parte decree the Appellant can not be allowed to convert into a proceeding for setting aside the decree as provided under Order 9 Rule 13 of the Code of Civil Procedure. The Appellant, therefore, can not take the ground that she was prevented by sufficient cause from appearing when the suit was called on for hearing to challenge the ex-parte decree. The scope of appeal against an ex-parte decree and the scope of special procedure provided under Order 9 Rule 13 of the Code of Civil Procedure are quite different. The grounds on which an ex-parte order can be challenged are different from that any question arising under Order 9 Rule 13 of the Code of Civil Procedure. The instant appeal is not against au order passed under Order 9 Rule 13 Code of Civil Procedure by which an application for order to set aside the ex-parte decree, is rejected. In any view of the matter I find a legal bar to challenge the ex-parte decree on the ground that the Defendant was prevented by any sufficient cause from appearing before the Court when the case was called on for hearing. Thus, the ground that the defendent was forcibly confined by her husbnnd, prevented her from appearing in Court when the suit was called on for hearing is not available to her in the instant appeal. That being the position, I do not want to dwell upon whether the ground taken by the wife-Appellant is reasonable or satisfactory. I come to the conclusion that this appeal has to be decided on its own merit.

8. Issue No. 2:-The husband-Respondent made an allegation that his wife-Appellant has been and is suffering intermittently from mental disorder of such a kind and to such an extent that the Petitioner can not reasonably be expected to live with her and during the effect of mental disorder she used to break her bangles, wash of the vermillion, catch hold the neck of her husband, boat her children, make an attempt to set herself on fire and that she used to insult her husband and in-laws in presence of friends etc. Sum and substance of the allegations made against the wife-Appellant is that she has been suffering from mental disorder and in course of the mental disorder she became cruel. The trial Court only referred the evidence of P.Ws. 1 and 2 but failed to appreciate the same having been given in ex-parte proceeding. However, he has (sic) felt necessity for medical examination of the wife-Appellant by any medical expert. He further appears to have been impressed by her behaviour towards her husband very rude and cruel making compassionate for him to live with her and observed that if those behaviours are not on account of mental disorder, they are certainly the act of cruelty. The reasoning of the Court below does not stand to my reason as to how it has held that the normal behaviours of the wife-Appellant were not on account of mental disorder when there is evidence that her such behaviours were due to mental disorder. Not only this but in the plaint also the abnormal behaviours were said on account of mental disorder. The Court is not empowered in any way to make a third case beyond the case of the parties. Thus, the reasons assigned for accepting the abnormal behaviour of the wife- Appellant not on account of mental disorder is error of record.

9. Merely taking a ground of mental disorder is not per se enough for dissolution of marriage. In order to prove the mental disorder some medical evidence is necessarily required. The evidence of P.Ws. 1 and 2 is of lay men and it can not take the place of medical evidence to establish that the wife-Appellant has been suffering from any mental disorder. However, the evidence disclosed by P.W. 1 and 2 might be indicating to the possibility of some mental disorder but the assessment of the degree of the mental disorder causing reasonable apprehension that continuing the conjugal life by the spouse is unsafe and risky at all but no assessment has been made by the Court below. In a case of Ram Narain v. Rameshwari reported in : AIR 1988 SC 2260 it was held by the Honble Supreme Court:

The context in which the ideas of unsoundness of "mind" and "mental disorder" occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the "mental disorder." Its degree must be such as that the spouse seeking relief are not reasonably to be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law... The mere branding of a person as schizophrenic therefore will not suffice...

In the case of Pramatha Kumar Maity v. Ashima Maity reported in : AIR 1991 Cal 123 , the husband-Appellant sued the wife-Respondent for dissolution of marriage on the ground specified in Section 13(1) (iii) of the Hindu Marriage Act, 1953, namely, the Respondent wife has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of a such kind and to such an extent that the Petitioner can not be reasonably expected to live with the Respondent. The wife after discharge from the mental hospital was under continued treatment by the doctor but no such doctor or mental doctor was examined having regard to the merit of that case. Division Bench of Calcutta High Court held that;

Sound health, in these days of pollution of air and water, adulteration of food stuff and drugs and all that is a rare species. So is sound mind, as a result of all the stress and strain, anxiety and tension of the modern age. The legislature has not made unsoundness of mind or mental disorder, by itself, a matrimonial fault unless the unsoundness is incurable or the disorder is such as to disable the person to become a reasonably tolerable matrimonial partner. We have no doubt that the petitioner-husband has failed to prove his case by any standard, whether the standard of pre-ponderance of probability as laid down by the Supreme Court in Dastane v. Dastane (: AIR 1975 SC 1534 ), or that of proof beyond reasonable doubt as laid by the Supreme Court in Bipin Chandra v. Probhabati (: AIR 1957 SC 176 ) or in White v. White (: 1958 All LJ 671: AIR 1958 SC 441 ), none of which was, however, referred to in Dastanes case (supra).

10. Some prescriptions have been filed but only one has been brought on the record which has been marked as Ext. 1 but strangely this prescription is of no help to the husband- Respondent because it is completely silent that wife-Appellant was found suffering from any mental disorder.

11. Before closing the chapter I would like to refer here the very admitted facts relating to the behaviour of the wife-Appellant. She is mother of two children and after the marriage which was solemnized on 8.5.84 she came and lived with her husband-Respondent at Ranchi and became pregnant. She gave birth of a child on 15.2.85 at Gaya (Matrimonial Home). She again conceived during her staying for about ten months in her husbands house and gave birth of a Second child in the month of March 86 as per pleading. It does not stand to my reason as to how this cruel natured wife was consumed by husband- Respondent during her stay with him and how she gave birth of two children. This admitted fact has not been considered at all by the Court below. This behaviour apparently stands in rebuttal of the allegation that her behaviours were always abnormal.

12. In view of the above reasons I find and hold that the evidence adduced by the Plaintiff is not unassailable and cogent to establish the so called mental disorder from which the Appellant is said to have been suffering was of such a kind and intensity as to justify a reasonable apprehension that it would not be possible or safe for husband-Respondent to live with her. This point is accordingly determined in favour of wife-Appellant.

13. Issue No. 3:-Sub-Section 2 of Section 23 of the Act casts duty on the Court in these words:

Before proceeding to grant any relief under this Act, it shall be duty of the Court in the first instance, in civil case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Provided that nothing contained in this Sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clause II, III, IV, V, VI of Sub-section 1 of Section 13.

Sub-Section 3 says:

for the purpose of aiding the Court in bringing about of such a reconciliation, the Court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceeding for a reasonable period not exceeding 15 days and referred the matter to any person named by the parties in this behalf or to Anr. person nominated by the Court if the parties fail to name person, with direction to report to the Court as to whether reconciliation can be and has been effected and the Courts shall in disposing of the proceeding have due regard to the report.

Ex-facie, Sub-Sections 2, 3 and 4 are reconciliation provisions and give inter alia conciliation procedure and according to which the Court has to discharge its duty With the help of this procedure the Court has to make every endeavour to bring about a reconciliation. But, it the same time the proviso exempts operation of the requirement of reconciliation in the case, where the relief is sought on any of the ground specified in Clause II, III, IV, V, VI and VII of Sub-Section 1 of Section 13 of the Act. The question now arises as to whether the Plaintiff has sought relief only on the ground envisaged in Clause III of Section 13 of the Act or any other ground. The allegations made in para 7 that the wife-Appellant has been suffering from polio and with great difficulty she could walk or stand but such fact was deliberately concealed by the Appellant and her parents at the time of negotiation, constitute a fraud practiced on the Respondent by the Appellant and her parents. This ground is not covered by Clause III of Section 23 of the Act. Secondly not only this but the allegation that the wife-Appellant was suffering from mental disorder before the marriage and later on it was greatly developed stand mentioned in the petition. If this ground is given its face value even then the ground can not be said to be covered squarely under Clause III of the Section 13 of the Act. Section 5 of the Act lays down the conditions for the valid marriage after the commencement of the Act and according to that condition at the time of marriage neither party should be incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent has (sic) to be unfit for marriage and the protection of children. Section 12 lays down that any marriage solemnized whether before or after the commencement of the Act shall be voidable and may be annulled by a decree of nullity on any of the grounds including the marriage in contravention of the provision specified in Clause II of the Act. in view of the above referred provision it would be manifest that if any of the parties of the marriage is suffering from any mental disorder incapable of giving consent may be a ground for nullity of marriage Under Section 12 of the Act and where any of the party has been suffering from any mental disorder after the marriage it may be a ground for dissolution of marriage Under Section 13 of the Act. As a matter of fact the plea of mental disorder against the Appellant is not certain and specific. This aspect of the matter has not been taken into consideration by the Court below. Secondly the word "in the first instance" used in Sub-Section 2 of Section 23 of the Act is of vital importance and that is why the duty on the Court for reconciliation has been cast before proceeding to grant any relief. In the first instance the Court has to see the consistency and possibility to reconciliate the matter between the parties in a matrimonial proceeding. It would be needless to point out that in matrimonial proceeding the Court should be always vigilant to reconciliate the matter between the litigant spouses. Had these facts been taken into consideration there was scope for compliance of the proviso of Sub-Section 2 of Section 23 of the Act in the first instance. But strangely these facts were overlooked by the trial Court, consequently a noncompliance appears to have occurred. None of the order sheets of the Court below ventilates that any attempt to reconciliate the matter was made by the Court below. However, the non-compliance may be a serious lacuna but it can not be a ground to render the decree invalid. Thus, the failure of the Court below in reconciliating the matrimonial tie between the parties does not render ex-parte decree invalid.

14. Issue No. 4:-The right to remarry any person after a conclusive decree of divorce arises Subject to the limitation laid down in the Act itself. In this regard Section 15 and Section 28 of the Act are relevant to be considered here. Section 15 of the Act gives right to the divorced spouse to remarry which is in the following words:

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree, or if there is such a right of appeal the time for appealing has expired when an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

Section 28 of the Act lays down as follows:

Clause 1:-All decrees made by the Court in any proceeding under this Act shall, subject to the provision of Sub-Section 3 be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which the appeal ordinarily lies from the decision of the Court come in the exercise of its original civil jurisdiction.

Clause 2 and 3 are omitted as not relevant for the purpose of this

Clause IV:-Every appeal under this section shall be preferred within a period of thirty days from the date of decree or order.

The proviso of Sub-Section 1 of Section 28 of the Act deals with the forum of appeal making the decree appealable and Sub-Section 4 deals with the period of limitation. Thus, the above referred two sections are inter linked so much so that they must be read together. According to the aforementioned provision of Section 15 of the Act, the divorced spouse is only entitled to remarry firstly where there is no appeal. Secondly, the appeal presented has been dismissed and thirdly, the time for appealing has been expired when an appeal having been preferred. And according to the proviso of Sub-section 4 of Section 28 of the Act as mentioned above the appeal shall be preferred within the period of thirty days from the date of decree or order. In the instant case the appeal has been presented though after expiry of period of thirty days from the date of the decree. But the fact that the appeal is pending was within the knowledge, of the husband-Respondent. The conscious knowledge of the pendency of the appeal can safely be derived from the following facts:

The ex-parte order was passed on 30.9.1986 decree was signed on 8.10.1986 and the instant appeal was preferred on 4.5.1987 i.e. about seven months after the decree was signed. It is also pertinent to mention here that no copy of the decree was given to the wife-Appellant by the Court though Sub-Section 4 of Section 23 of the Act lays down that in every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties. Anyhow the appeal was preferred. By the order dated 15.4 1988 this Court was pleased to condone the delay having been satisfied with the explanation offered by the Appellant. From perusal of the record of the instant appeal it appears that the show cause notice in the limitation matter issued by the office, was served on the Respondent and the service was found satisfactory vide order No. 5 dated 8.2.1988. It appears from the office note dated 23.3.1988 that the husband-Respondent appeared through vakalatnama with reply. It further appears that the husband-Respondent was heard on the point of limitation on 15.4.1988. From the above facts it is revealed ex-facie that the husband thereafter appeared in the appeal before 21.6.1988 on which date he is said to have been remarried one Radha Devi.

Though the remarriage of the Respondent with Radha Devi stands mentioned in the complaint petition as well as in the petition for maintenance filed by the wife-Appellant to the effect that the said remarriage was made on 21.6.1988, was not, however, rebutted by the Respondent. In view of the above facts I come to the conclusion that after appearance in the appeal, husband-Respondent remarried Radha Devi, knowingly and consciously that the appeal against the ex-parte decree is being contested by him. Not only this, the appeal being continuous proceeding of the original proceeding or suit, the husband-Respondent remarried. Under such circumstance the expiry period of thirty days from the date of decree inter alia, is of no rescue for husband-Respondent because of the pendency of the appeal within his knowledge. He himself took the risk by contacting second marriage during the pendency of appeal. On principle, husband-Respondent should not have remarried after his appearance in appeal. It would be needless to point out that the second marriage contacted by the husband-Respondent during the pendency of the appeal may be a case of void and voidable marriage as per Sections 4 and 12 of the Act. However, no concerted view on this aspect is required to be expressed. But this much can be expressed that the husband-Respondent can not be allowed to take advantage of his own wrong. In the case of Smita Dillip Rane v. Dillip Dattaram Rane reported in 1990 Bombay 84, similar principle was triggered off. In that case husband-Respondent having got the decree for dissolution of his marriage with wife-Appellant contacted second marriage despite the pendency of the appeal. By Section 15 of the Act it was held that neither the second marriage is saved from the provisions contemplated by Section 15 of the Act nor the husband-Respondent be allowed to take advantage of his own wrong. However, there was a distinct fact (which is not available in the instant appeal) that the appeal was filed within limitation. Any how the expiry of the period of limitation makes no difference because of the pendency of the appeal was within the knowledge of the husband-Respondent. Noticeable point is this that inspite of the pendency of the appeal and that too being contested by the Respondent he remarried with Anr. lady. Having regard to the above discussions I come to the finding that maintainability of the appeal is not affected at all either by contacting second marriage by husband-Respondent or non-joinder of his second wife. This issue is decided accordingly.

15. Issue No. 5:-It is substantial question of law but interlinked with the circumstances subsequently developed after the dismissal of the suit by the original Court and before the dismissal of the appeal by the appellate Court. No doubt the appellate Court has inherent power to take into consideration the new facts or subsequent events or any change in the circumstances during that period. In the instant case, the subsequent development as disclosed, are that after dissolution of the marriage by ex-parte order the wife-Appellant had made a complaint against her husband-Respondent and also applied before the Court for granting maintenance allowances from her husband. So far as proceeding under Section 107 Code of Criminal Procedure is concerned it appears to have initiated during the pendency of matrimonial suit. To take into consideration these facts and in order to record the evidence to that effect by way of additional evidence is desirable. Unless the additional evidence is ordered to be taken, the so called subsequent events can not be brought legally on the record for consideration. Therefore, I find force in the submission of Mr. Amreshwar Sahay that the subsequent events can not be taken into consideration ipso facto without bringing the same legally on the record as contemplated under Rule 27 of Order 41 of the Code of Civil Procedure. That being the position I am of the view that the appellate Court irrespective of the fact that any cross-objection or cross-appeal has been made has inherent power to take into consideration the subsequently developed facts between the parties but only by way of additional evidence.

16. The contention raised by Mr. Dayal that the cruelty is a ground for dissolution of marriage depends upon the standard of proof of such cruelty. I have already referred in the earlier para that according to the case of the Plaintiff it was mental cruelty and not the intentional cruelty and the Respondent has failed to prove the mental cruelty by any cogent and unassailable evidence including the medical evidence. Thesefore, I do not want to dwell upon this aspect of the matter. But before closing this para I would like to point out that the allegations of cruelty per se can not be a ground for relief by way of divorce. So far as the intentional cruelty is concerned, no spouse is supposed to live unhappily causing injury to each other. For such intentional cruelty some strong facts inconsistent to the life of the spouse is required. It is correct that it is not necessary to enquire from what source the bitter waters are sprinkling but at the same time the cause generating bitter-waters is necessarily responsible. Though Mr. Dayal has filed a catena of decisions in support of his argument but strangely none of them relates to the case in which an ex-parte decree was passed. However, the allegation of cruelty either mental or intentional is determined and decided on the merit and circumstance of each case.

17. Before closing the chapter I would like to point out the irregularity committed by the Court below in proceeding with the case ex-parte. As per Order 9 Rule 6A of the Code of Civil Procedure where the Plaintiff appears and Defendant does not appear when the suit is called on for hearing then if it is proved that summon was duly served, the Court may make order that the suit should be heard ex-parte. As per this rule when the Defendant has been served the notice has been afforded an opportunity and if he fails to appear, the Court may proceed in his absence. The fact that the suit will be proceeded ex-parte must be recorded in the proceeding. That is why Rule 7 of Order 9 of the Code of Civil Procedure gives an opportunity to the absentee-Defendant to appear and assign good cause for his non-appearance and to the satisfaction of the trial Court by obtaining an order that the suit to be heard in answer to the suit as if it had heard on the date fixed for his appearance. In my view this provision has been made only to put the proceeding of the case ex-parte to the knowledge of the party concerned, as well as to disclose the intention of the Court that it has no alternative but to proceed with the case ex-parte. Anyway the Court below does not appear to have made any order that the case will be heard ex-parte. In other words without making any order that the case would be heard ex-parte he took up the case ex-parte. I have already pointed out in the earlier para that no effort was made by the Court below to reconciliate the matter between the parties. I have also referred above that no order for supply of ex-parte order free of cost to the party has been made by the Court below. In the matrimonial suit like a divorce the Court should have acted rationally and patiently. I, therefore, find these irregularities to have been committed owing to indecent haste by the Court below.

18. For the reasons stated above I hold that the Plaintiff-Respondent has failed to prove the alleged cruelty levelled against the Defendant-Appellant and the ex-parte order is misconceived and erroneous which has to be set aside. I find force in the appeal which has to- be allowed.

19. In the result the appeal is allowed and the impugned ex-parte decree is hereby set aside. The case is remanded back to Court below for trial. Under the facts and circumstances there shall be no order as to cost.