Patna High Court
Sushma Kumari vs Om Prakash on 5 March, 1992
Equivalent citations: AIR1993PAT156, 1993(41)BLJR1080, I(1993)DMC529, AIR 1993 PATNA 156, 1993 (2) BLJR 1080, 1993 BLJR 2 1080, (1993) 1 DMC 529, (1993) MATLR 265, (1993) 2 BLJ 371, (1993) 2 CIVLJ 620
JUDGMENT Nagendra Rai, J.
1. The present revision application arises out of matrimonial case. The petitioner is aggrieved by the order dated 9-5-91 passed by VIth Addl. District Judge, Patna, in Matrimonial Case No. 105 of 1989, by which he allowed the prayer of the Opp. party for making endeavour for reconciliation between the parties, as provided under Sub-section (2) of Section 23 of the Hindu Marriage Act (hereinafter referred to as 'the Act).
2. The opp. party filed the aforesaid petition for restitution of conjugal rights on the allegation that his marriage with Sushma Kumari was solemnised in a Kali Mandir at Darbhanga house on 30-11-1987 in presence of friends and well-wishers. The father of the girl was not agreeable to the marriage on the ground that his son was married with the sister of the opp. party. Both lived as husband and wife for sometime at his house and later on Sushma Kumari went to her father's place and when he went to his father-in-law's place for Bidai of his wife he was not allowed to take her with him on one pretext or the other and, lastly, on 17-12-89 Sushma Kumari also refused to come along with him. She has withdrawn from his society without any reasonable excuse and hence the necessity for filing the petition for restitution of conjugal rights.
3. During the pendency of the case, a petition was filed on behalf of the opposite party before the court for taking steps for reconciliation as provided under Section 23(2) of the Act. The petitioner objected to the aforesaid prayer of the opp. party by filing a rejoinder stating therein that there was no relationship of husband and wife between the parties and as such there is no question of taking steps for reconciliation between the parties.
4. The court below, after hearing the partiep1 s, by the impugned order allowed the prayer of the opp. party for making an endeavour to bring about reconciliation between the parties.
5. Learned counsel appearing for the petitioner contended that the provision of Section 23(2) of the Hindu Marriage Act is not a mandatory one and the court below wrongly held so, and, accordingly, directed the petitioner to be present for reconciliation. He also contended that even if it is held that the said provision is a mandatory one, the proper stage to exercise power under Section 23(2) of the Hindu Marriage Act is when the court decides to grant relief under the Act. In other words, the power under the said section is to be exercised after the evidence is over and the court decides to grant relief to the party concerned.
6. Learned counsel appearing for the opp. party, on the other hand contended that the words of Section 23(2) are mandatory one and the duty is cast on the court to make endeavour to bring about reconciliation at the very first instance before proceeding in the matter. Elaborating his submission, he contended that object behind the aforesaid provision is to provide all help in the maintenance of marital ties and to restore peace to the alienated couple and as such the attempt to bring about a reconciliation is to be made at the initial stage of the proceeding and for that reason the legislature purposely said in the said section that the attempt for reconciliation should be made at the first instance,
7. As the controversy between the parties centres round the provision of Section 23(2) of the Act it is apt to quote the same which runs as follows:--
"Section 23(2): Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every 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."
It is well settled rule of interpretation that where the provision of the section is clear and unambiguous then the same to be interpreted according to its plain meaning and only in cases of ambiguity the other rules of interpretation are to be resorted to find out the intent of the legislature. A bare reading of the aforesaid provision shows that a duty is cast on the court before grant of relief under the Act in every case where it is possible so to do consistently with the nature and circumstances of the case to make every endeavour to bring about reconciliation between the parties.
8. The first question to be determined in this case is as to whether the aforesaid provision is mandatory or not. The learned counsel, in support of his submission that the provision is not a mandatory provision relied upon the cases of Smt. Leelawati v. Ram Sewak, AIR 1979 Allahabad 285, Dilipbhai Chhaganlal Patel v. State of Maharashtra, AIR 1983 Bombay 128 and a Division Bench decision of this Court in Raj Rani v. Harbans Singh Chhabra, AIR 1972 Patna 392 whereas, the learned counsel appearing for the opp. party, in support of his submission, relied upon a single Judge decision of this Court in the case of Chhote Lal v. Kamla Devi, AIR 1967 Patna 269 and the decision of J. & K. High Court in the case of Ram Kumar v. Kamla Dutta, AIR 1981 J. & K. 9.
9. In the case of Leelawati (Supra) it has been held as follows:--
"The provisions of Section 23(ii) of the Hindu Marriage Act are not absolute, while imposing a duty on the court to make every endeavour to bring about reconciliation between the parties, a discretion is left to the court by the use of the qualifying phrase "in every case where it is possible to do consistently with the nature and circumstances of the case."
It appears from the facts of that case that the suit was filed for divorce on the ground that in spite of decree for restitution of conjugal rights, the other spouse did not perform her obligation and in that context it was held that in such a situation it would be a rare case whore any reconciliation between the parties can be brought about where petition for divorce is pending. The aforesaid observations were made in the peculiar facts of the said case and the same is not an authority for holding that the provision of Section 23(2) of the Act can be completely ignored by the court while deciding a matrimonial case. The other case relied upon by the petitioner in Dilipbhai Chhaganlal Patel (supra) wherein it was held that the provision of Section 23(2) for bringing about reconciliation is not mandatory. In that case the question for consideration before the court was as to whether an application for maintenance pendente lite etc. can be disport of by the court before adopting the procecure under Section 23(2) of the Act. In my opinion, that case also cannot be said to be the authority for holding that the said provision is not a mandatory one as on the facts of that case it was held that the application under Section 24 can be entertained even without following the procedure under Section 23(2) of the Act.
10. In the case of Raj Rani (supra) the question before the court was as to whether the judgment and decree passed by the court below are vitiated due to non-observance of the procedure under Section 23(2) by the court below. Dealing with the matter it was held by a Division Bench of this court that"...... We are not inclined to agree with the contention of the learned counsel for the apellant that for the failure on the part of the court the endeavour to bring about reconciliation between the parties, its order is without jurisdiction. With respect we think that the view taken by a Bench of the Mysore High Court in Juvubai v. Ningappa Adriashappa Yadwad, AIR 1963 Mys 3, that failure on the part of the trial court to make endeavour to bring about reconciliation does not affect its jurisdiction to try the case and endeavour can also be made by the appellate court is correct". The observation made by the Bench of this Court is only to the effect that if the procedure under Section 23(2) has not been followed by the trial court, the same can be followed by the appellate court, but from that no inference can be drawn that the provision of the said section is directory one in the sense that the same can be ignored by the courts. It only shows that if the trial court has failed to follow the procedure under Section 23(2) of the Act, the said defect can be rectified by the appellate court and on that ground the order passed by the lower court cannot be said to be without jurisdiction. In Chhotelal's case (supra) relied upon by the opp. party it has been held that the "important words in Sub-section (2) are that it shall be the duty of the court, in the first instance, in every case where it is possible to do so" to take every endeavour to bring about a reconciliation between the parties. In my judgment the law enjoins upon the court a duty to make sincere effort at reconciliation before proceeding to deal with the case in the usual course. In order that the requirement of making "every endeavour" is fulfilled it is at least requisite that the courts should have a first hand version of the point of view of the lady from her own mouth so that the court might be in a position to appreciate what really has led to the estrangement between the husband and the wife....."
11. No doubt, the aforesaid judgment supports the stand of the opp. party but in view of the Division Bench decision of this court, as mentioned above, the view taken in the aforesaid judgment is no longer a good law. Even if the trial court has not resorted to the aforesaid procedure, the step for reconciliation can be taken even by the appellate court. In my opinion, the aforesaid provision cannot be said to be absolute in the sense that non-observance of the said provision will make the final decree/order a nullity, but a duty is cast on the court in every case to make an attempt for reconciliation wherein it is possible so to do consistently with the nature and circumstances of the case. If for some reason the said procedure has not been followed by the trial court, the same can be followed by the appellate court.
12. The next question for determination is as to whether steps for reconciliation is to be taken at the very start of the proceeding at the first instance as argued by the counsel for the opp. party and has been done by the court below in this case or it is to start after the evidence is over and before the court proceeds to dispose of the case finally as argued by the counsel for the petitioner. As stated above, the very object of this provision is to bring harmony and good relationship between the alienated couple. The intention of the legislature appears to be that the court has to take recourse of this provision at the first instance, which according to me, means from the very beginning. However, this does not mean that this attempt for bringing about reconciliation is to be made only at the very beginning of the case and not thereafter. The endeavour to bring about reconciliation is to make whenever it is possible to do consistently with the nature and circumstances of the case. To hold that reconciliation is to be done at the first instance only and not afterwards would frustrate the very object of the provision. The view taken by me finds support from the view taken by the Mysore High Court in the case of Jivubai v. Ningappa Adriashappa Yadwad, AIR 1963 Mys 3, Raghunath v. Urmila Devi, AIR 1973 All 203.
13. In the case of Jivubai (supra) it was held as follows (at page 5):--
"........While we agree that the trial court has a duty to perform by making every endeavour to bring about a reconciliation between the parties we do not see how the matter, goes to the question of jurisdiction. It will be noticed that the endeavour is to be made, where it is possible to do so consistently with the nature and circumstances of the case. It cannot be said that the full nature and circumstances of the case can always be gathered exclusively from the pleadings. It is no doubt true that the provision says that such endeavour is to be made in the first instance, but to say from this that the court cannot make use of its good offices at any later stage would be to defeat the very object of the provision. The intention of the provision undoubtedly is to render all possible assistance in maintenance of the marital bond and if at any stage of the case the circumstances are propitious for reconciliation, it will be the court's duty to make use of such circumstances irrespective of the stage. The use of the words "in the first instance" can in this context only mean that the court's efforts in the direction of reconciliation should commence right from the start of the case and not that such effort should not be made at any later stage. It would therefore, follow that the matter is not one of jurisdiction. If no endeavour had been made by the court, it will undoubtedly be a serious omission which has to be taken into account. But it cannot affect the jurisdiction of the court to try the case. It also follows that, as it is the constant duty of the court to bring about a reconciliation, such efforts are not only open to the appellate court or courts but that it is appropriate that these courts also should make the endeavour."
In the case of Raghunath v. Urmila Devi (supra) it was held as follows (at page 204):--
"In view of the provision of law; it is the duty of the trial Court to make every endeavour to bring about reconciliation between the parties. The duty is to be performed consistently with the nature and circumstances of the case. The object behind this provision is to provide all help in the maintenance of marital ties and restoration of peace of the estranged couple. Emphasis is, however, laid that steps for bringing about reconciliation betwen the parties should be taken by the Court "in the first instance". In other words, the endeavour should be made right from the start of the case. This does not, however, mean that the attempt for bringing about reconciliation can be made only at the initial stage of the case and not at any later stage. The effort in that direction should be made by the court whenever the circumstances of the case warrant it to do so- The contention of the learned counsel for the opp. party No. 1 that the endeavour for bringing about reconciliation can be made only after the closure of the final hearing of the case and before the Court process to grant any relief under the Act cannot therefore be sustained. The words "in the first instance", in Sub-section (2) of Section 23 do not bear out that contention. These words indicate that the court should make use of its good offices for bringing about reconciliation between the estranged parties at any stage or a later stage whenever it finds it possible to do so regard being had to the nature and circumstances of the case. However, if no endeavour is made by the Court though it was possible to do so consistently with the nature and circumstances of the case the Court would be failing to perform a duty which the law enjoins upon it....."
14. In my considered opinion, the stands taken by the counsel of both sides are of extreme views and are not acceptable to me. The true meaning and import of the aforesaid provision is as to what I have said above.
15. The other submission raised on behalf of the petitioner that no procedure under Section 23(2) of the Act is to be followed unless there is determination by the court as to whether there is a relationship of husband and wife between the parties or not is without any substance for the simple reason that the provision under the Act does not provide for any such determination before following the procedure under Section 23(2). If the said submission is accepted that will amount the holding a preliminary trial, which is not warranted under the provision of the Act.
16. Coming to the facts of the present case, it appears from the impugned order that the only tiround for allowing the prayer of the opp. party for a reconciliation between the parties by the court below is that the provision cf S. 23(2) is a mandatory one and it has to follow the aforesaid procedure before starts of the evidence. The trial court has not considered the facts of this case before ordering for reconciliation. As I have held above, no doubt, a duty is cast on the court to take steps for reconciliation between the parties, the stage at which this procedure has to be determined by the court after taking into consideration the facts any circumstances of this case. As the court has not applied its mind to the facts and circumstances of the case and has passed the impugned order only on erroneous around, the court below has acted illegally and material irregularities in exercise of jurisdiction in passing the impugned order.
17. Accordingly, I set aside the impugned order and remit back the case to the court below for reconsideration of the case in accordance with law in the light of the observations made above. It will consider as to whether in the facts and circumstances of the case it is possible to make an endeavour to bring about the reconciliation at the very beginning of the case or at the later stage.
18. In the result, the application is allowed with the direction and observation made above. However, there shall be no order as to cost.