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Manju Singh Vs. Ajay Bir Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 771 of 1984
Judge
Reported inAIR1986Delhi420; 1985(8)DRJ354; 1985RLR299
ActsHindu Marriage Act, 1955 - Sections 23(2)
AppellantManju Singh
RespondentAjay Bir Singh
Advocates: R.S. Sodhi and; D.R. Mahajan, Advs
Cases ReferredIn Ram Kumar v. Kamla Dutta
Excerpt:
hindu marriage act - section 23(2)--in a petition for divorce filed by the husband, wife requested for a date for re-conciliation before filing the written statement, after one and a half months as she was in advanced stage of pregnancy. the trial court declined the request and asked her to file the written statement.; that the trial court acted illegally. the words 'before proceeding to grant any relief' mean during the course of trial, i.e., right from the date when the opposite party was served till the date of giving final decision. - - in the present case, there is a child, quite young, the marriage itself being young'.it has been observed that it is the duty of the court as well the counsel for the parties to try reconciliation......and be present in court. it was requested that a date for reconciliation before the filing of the written statement after about 1' months be given. the request was refused by the trial court and the following order was passed on 11th steptamber, 1984:- 'the respondent requests for a date of to effect reconciliation before the written statement as she will not be able to come before one and half months. the case cannot be adjourned for reconciliation only for such a long time. in the meanwhile let her file a written statement on 24th september, 1984. vakalatnama by respondent's counsel to be filed today'.(2) learned counsel for the petitioner submits that the petitioner delivered a female child on 18th september, 1984, and to avoid any confrontation between the parties, to reconcile and.....
Judgment:

Sultan Singh, J.

(1) The petitioner, Suit. Manju Singh was married to the respondent Ajay Bir Singh on 21st January, 1979 at Village and P.O. Chautala, District Sirsa, Haryana. The respondent-husband filed a petition under Section 13(l)(ia) of the Hindu Marriage Act, 1955 (for short 'the Act') for a decree of divorce on the ground that after the solemnisation of marriage the wife treated the husband with cruelty. The wife was served with the summons of the divorce petition for 11th September, 1984. It was submitted on her behalf that she was in advanced stage of pregnancy residing at Village Chautala and was not in a position to undertake Journey and be present in court. It was requested that a date for reconciliation before the filing of the written statement after about 1' months be given. The request was refused by the trial court and the following order was passed on 11th Steptamber, 1984:-

'THE respondent requests for a date of to effect reconciliation before the written statement as she will not be able to come before one and half months. The case cannot be adjourned for reconciliation only for such a long time. In the meanwhile let her file a written statement on 24th September, 1984. Vakalatnama by respondent's counsel to be filed today'.

(2) Learned counsel for the petitioner submits that the petitioner delivered a female child on 18th September, 1984, and to avoid any confrontation between the parties, to reconcile and save the marriage, a request was made on her behalf to the trial court to make an attempt for reconciliation before filing the written statement but it was turned down. He submits that filing of the written statement was not necessary when the petitioner was ready and willing to reconcile with the respondent.

(3) The short question in this revision is about the scope of the provisions of relating to reconciliation proceedings under the Act. Section 23(2) of the Act reads as under :

'23(2)Before proceedings 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 end eavour to bring about a reconciliation between the parlies. 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). Clause (iii). Clause (iv). Clause (v) Clause (vi) or Clause (vii) of Sub-section (1) of Section 13'.

(4) Learned counsel for the petitioner submits that no attempt was made by the trial court for reconciliation as required by the section and on the contrary the petitioner wife was directed to file written statement. The object of provision for reconciliation would be frustrated as in his view the allegations have already been made by the husband against her and if she files written statement and brings out the counter-allegations on record there may not be any possibility for reconciliation between the parties. Learned counsel for the respondent husband on the other hand submits that the duty of the court to attempt reconciliation is at a time when the case is ready for granting relief under the-Act. His submission is that before giving final judgment the court is under duty to attempt reconciliation and not before He has referred to Sakri v. Chhanwarlal, wherein it has been observed that the words 'in the first instance' only denote that the court must make endeavor before granting relief. In that case no attempt was however made for reconciliation and the High Court remanded the case to the trial court to attempt reconciliation. With respect, I do not agree with the view expressed by the learned Judge.

(5) In V.K. Gupta v. Nirmala Gupta, 1980 Hlr 290 dealing with a case of divorce under the Act, the Supreme Court made the following observations :-

'IT is fundamental that reconciliation of a ruptured marriage is the first essay of the Judge, aided by counsel in this noble adventure. The sanctity of marriage is, in essence, the foundation of civilisation and, thereforee court and counsel owe a duty to society to strain to the utmost repair the snapped relations between the parities. This task becomes more insistent when an innocent off spring of the wedding struggles in between the disputed parents. In the present case, there is a child, quite young, the marriage itself being young'.

It has been observed that it is the duty of the court as well the counsel for the parties to try reconciliation. That was a case where a divorce petition was dismissed by the trial court and the High Court and the matter was before the Supreme Court when reconciliation was attempted and it appears that parties reconciled. The reconciliation of ruptured marriage is the foremost duty of the Judge and the counsel.

(6) In Chhote Lal v. Kamla Deviand others, : AIR1967Pat269 it has been observed that the law enjoins upon the court a duty to make a sincere effort at reconciliation before proceeding to deal with the case in the usual course. The following observations have also been made in this judgment :-

'IN order that the requirement of making 'every endeavor' is fulfillled 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. Merely because the lawyers for the parties submit that it is not possible to have a reconciliation the duty of making every endeavor for bringing about a reconciliation cannot be said to have fulfillled.'

It thus appears that even when the parties counsel state that reconciliation was not possible it is the duty. of the court to direct that parties to appear in person and find out the facts and attempt reconciliation.

(7) In Raghunath Prasad v. Smt. Urmila Deviand another, : AIR1973All203 it has been observed that the effort at reconciliation is to be made by the court right from the start of the case and not only after the closure of the final hearing of the case and before the court proceeds to grant relief. It has been further observed that the court cannot give up effort of reconciliation on the ground that the counsel for the parties had stated that there was no chance of reconciliation. This judgment further states that it is not a matter of discretion of the court whether to make endeavor to bring about reconciliation or not but it is its duty to endeavor at reconciliation.

(8) In Ram Kumar v. Kamla Dutta, , it has been observed that the court should try first for reconciliation and it should be done even without filing the objection to the petition. I am In respectful agreement with the observations of the learned Judge in this case.

(9) I am thereforee of the opinion that Section 23(2) of the Act gives a direction to the court that before proceeding to grant any relief under the Act it shall be the duty to endeavor to bring about reconciliation between the parties except in the cases mentioned in the proviso to the Sub-section. The intention of the legislature is that an attempt should be made by the court for reconciliation before proceeding with the hearing of the petition The provision is mandatory and an effort for reconciliation is to be made by the court right from the start of the case by directing and giving reasonable opportunity to the parties to appear in person before the Court even the filing of the written statement by the opposite party should not be insisted, and reconciliation should be attempted by the court. If reconciliation attempt fails, written statement be filed. The Court however is to watch the proceedings during trial and make further attempt for reconciliation at any stage deemed appropriate by the court But in any case duty is cast upon the court to try reconciliation between the parties before finally deciding the proceedings under the Act. The words 'before proceeding to grant any relief', mean during the course of trial i.e. right from the date when the opposite party is served till the date of giving final decision.

(10) In the instant case the petitioner-wife through her counsel made a request for adjourning the case for a period of 1' months for reconciliation prior to filing of the written statement. It is not denied she was in advanced stage of pregnancy and she delivered a female child on 13th September, 1984. The period of 1' months from 11th September, 1984 for appearance and reconciliation was not an unreasonable period in the circumstances of this case. The trial court by directing the petitioner to file written statement and not adjourning the case for reconciliation acted illegally in the exercise of its jurisdiction affecting the ultimate decision of the case.

(11) The revision petition is accepted setting aside the impugned order dated 11th September, 1984. Parties are directed to appear before the trial court on 18th March, 1985. The court may make an endeavor for reconciliation on that date or on any other date convenient to the court. If the court comes to the conclusion that the reconciliation was not possible the petitioner may be directed to file written statement and the divorce petition be disposed of in accordance with law. No order as to costs.


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