Kaur Vs. Hardeep Singh  INSC 822 (18 November 1997)
V. MANOHAR, D.P. WADHWA
is in appeal against the judgment dated September 27, 1996 of the Division
Bench of Punjab and Haryana High Court summarily dismissing her appeal filed
under Section 28 of the Hindu Marriage Act, 1955 (for short `the Act').
Appellant had filed this appeal against the judgment and decree dated December 4, 1995 passed by the District Judge, Patiala in her own petition under Section
13 of the Act seeking divorce from her husband the respondent herein, on the
grounds of cruelty and desertion. Appellant had alleged that fraud was
perpetrated upon her by her husband in filing the petition for divorce which
she said she never intended to file and never sought divorce from her husband.
In the proceeding before the District Judge appellant appeared to have examined
herself and also one Dalip Singh who claimed to be her material uncle which the
appellant has denied. An ex-parte decree of divorce was granted by the District
Judge, Patiala on the petition of the appellant.
Appellant says when she became aware of the decree of divorce she moved the
High Court in appeal which appeal, as noted above, was dismissed by the
any ground for condoning the delay of 263 days is made out nor there i any
merit in the appeal. It is the applicant- appellant who filed a petition for
divorce under Section 13 of the Hindu Marriage Act. If any fraud has been practised
on the applicant, the present appeal is not the appropriate remedy. The remedy
lies with the Civil
application as well as the appeal is dismissed." The marriage between the
parties was solemnised according to Sikh rites on February 18, 1991 at Sangrur, tehsil and District Patiala in the State of Punjab. After sometime it appears
differences arose between the parties.
on May 22, 1995 lodged a complaint with the Senior
Superintendent of Police complaining harrassment by the respondent in
connivance with his parties. She said her husband was having illicit relations
with the wife of his elder brother and that her parents-in-law and brothers-in-
law were hatching a conspiracy to kill her in order to get her husband married
for a second time. She complained that for the last six months she was living
with her parents because of the ill-treatment meted out to her and that all the
persons named in the complaint were not permitting her to live in peace. There
is an entry in the Police Station City Rajpura, District Patiala dated July 10, 1995 where compromise between the
parties has been recorded. Reporting of the compromise was made by the
respondent himself who was accompanied with various respectable persons whose
names are recorded as under:
Diwan Singh S/o Daudagar Singh R/o H.No. 920 Gurbax Colony, Patiala, Shri Mohinder
Singh, Sarpanch village Pillap Maghali, Sh. Sukhdev Singh Sarpanch Mando P.S. Ghanour,
Sharan Singh Member Panchayat village, Alipur Raian, Jarnail Singh S/o Sh. Arjan
Singh R/o Rampur, Bagh Singh Nambardar Village Ghaggar Sarai, Baldev Singh Nambardar
village: Chamaru." The report further records that the compromise has been
accorded between the parties with the help of the aforesaid persons after
lodging of the complaint by the appellant against her husband when she felt
annoyed. It was also reported that from that day onwards both parties will live
separately from other members of the family and that respondent would not
unduly cause hardship to the appellant.
the complaint by the appellant had been addressed to the Senior Superintendent
of Police her statement was separately recorded on July 21, 1995 withdrawing the complaint when she made the following
of Smt. Balwinder Kaur w/o Shri Hardeep Singh D/o Shri Tirath Singh R/o Kasturba
Road, Rajpura Stated that I am the resident of the address given above. I got
married to Hardeep Singh on 18.2.91. I had a family problem with my husband Hardeep
Singh and my in-laws family and because of this problem I had gone to the house
of my mother and father at Samour because of which I gave this application.
Both the parties with the aid and help of respectable persons and the Panchayat
have arrived at a settlement. I have agreed to this settlement without any fear
or pressure from any quarter. I agree to the settlement got done by the Panchayat.
Now I do not want any action on the complaints given by me. Now I live
separately from my in-laws house.
(BALWINDER KAUR) W/o Hardeep Singh d/o Tirath Singh R/o Kasturba Road, Rajpura
21.7.95" On July 4, 1995 respondent had filed a petition against the
appellant, his, wife, under Section 9 of the Act for restitution of conjugal
rights in the court of the Additional Senior Sub Judge, Rajpura. This petition
was withdrawn on February
14, 1996. The
following is the record of proceeding on that day:
- Present:- Counsel for the plaintiff.
for the plaintiff has made statement that he does not want to proceed with this
case. So in view of the statement of counsel for the plaintiff the suit of the
plaintiff is dismissed as withdrawn. File be consigned to the Record Room.
Sd/- Dt. 14.2.96 Civil Judge Junior Division, Rajpura" Appellant submitted
that service on her in this petition filed by her husband under Section 9 of
the Act was wrongly got obtained. However, it is not necessary for us to go
into all the details at this stage.
petition for divorce filed by the appellant out of which this proceeding has
arisen was instituted on September
4, 1995. We have gone
through the petition for divorce.
from the date of the marriage between the parties the petition singularly lacks
in better particulars though the petition is based on the alleged acts of
cruelty and desertion. Respondent did not appear and the proceeding was exparte
against him. Statement of the appellant was recorded on November 22, 1995 and that of her solitary witness
also on the same day. The judgment of the learned District Judge allowing the
petition is dated December
4, 1995. The judgment
merely reproduces what the appellant had stated in the petition for divorce in
general terms and the fact that she was an illiterate person and it proceeds as
Hardeep Singh did not turn up to contest the petition inspire of his service
and therefore, he was proceeded exparte.
recorded exparte proof of the petitioner. Balwinder Kaur petitioner appeared as
AW1 and she examined Dalip Singh her maternal uncle.
while appearing as AW 1 supported her allegations made in the petition while Dalip
singh AW2 her maternal uncle corroborated her. Both of them have stated that
the respondent used to treat her with cruelty during her stay with him and
deserted her for a continuous period of more than two years.
view of the exparte proof of the petitioner, I am satisfied that the respondent
treated the petitioner with cruelty and deserted her for a continuous period of
more than two years before the filing of the petition.
I accept this petition and pass an exparte decree divorce in favour of the
petitioner and against the respondent dissolving their marriage with immediate
order as to costs.
Sd/District Judge 4.12.1995 Patiala.
has alleged fraud by her husband in getting her signatures on the petition for
divorce and then bringing her to court to record her statement. Her case is she
was unaware of what was happening and she in fact was duped in signing the
petition and then appearing in the court as a witness. She said she never
wanted divorce. During the course of hearing in this appeal, we enquired from
learned counsel for the respondent if the respondent himself at any time wanted
divorce and the reply was in the negative. The question then arises as to why the
respondent allowed the proceeding to go ex-parte. There is no mention of the
complaint filed by the appellant before the Senior Superintendent of Police and
recording of the compromise between the parties and her own statement in the
police on July 21, 1995. If the matter had been settled
between the parties in July 1995 one may ask a question as to what was the
reason for the appellant to file a petition for divorce within six weeks of the
compromise. The conduct of the respondent in proceeding with the petition filed
by him for restitution of conjugal rights is also not understandable.
petition for divorce is not like any other commercial suit. A divorce not only
affects the parties, their children, if any, and their families but the society
also feels its reverberations. Stress should always be on preserving the
institution of marriage. That is the requirement o law. One may refer to the
Objects and Reasons which led to setting up of Family Courts under the Family
Courts Act, 1984. For the purpose of settlement of family disputes emphasis is
"laid on conciliation and achieving socially desirable results" and
eliminating adherence to rigid rules of procedure and evidence. These further
Law Commission in its 59th report (1974) had also stressed that in dealing with
disputes concerning the family the court ought to adopt an approach radically
different from that adopted in ordinary civil proceedings and that it should
make reasonable efforts at settlement before the commencement of the trial. The
Code of Civil Procedure was amended in 1976 to provide for a special procedure
to be adopted in suits or proceedings relating to matters concerning the
not much use has been made by the courts in adopting this conciliatory
procedure and the courts continue to deal with family disputes in the same
manner as other civil matters and the same advisary approach prevails." It
is now obligatory on the part of the Family Court to endeavour, in the first
instance to effect a reconciliation or settlement between the parties to a
Family dispute. It will be useful to note the qualifications and the method of
selection of a Family Court Judge. That will be sub-sections (3) and (4) of
Section 4 of the Family Courts Act:
A person shall not be qualified for appointment as a Judge unless he- (a) has
for at least seven years held a judicial office in India or the office of a
member of a Tribunal or any post under the Union or a State requiring special
knowledge of law; or (b) has for at least seven years been an advocate of a
High Court or of two or more such courts in succession; or (c) possesses such
other qualifications as the Central Government may, with the concurrence of the
Chief Justice of India, prescribed.
selecting persons for appointment as Judges,- (a) every endeavour shall be made
to ensure that persons committed to the need to protect and preserve the
institution of marriage and to promote the welfare of children and qualified by
reason of their experience and expertise to promote the settlement of disputes
by conciliation and counselling are selected; and (b) preference shall be given
to women." Even where the Family Courts are not functioning, the objects
and principles underlying the constitution of these courts can be kept in view
by the civil trying matrimonial causes.
Section 21 of Hindu Marriage Act provisions of Code of Civil Procedure 1908, as
far as may be, are applicable but that is subject to other provisions contained
in the Act and to such rules the High Court may make in this behalf. Under
Section 28 of Hindu Marriage Act decree of divorce is appealable. Section 28 of
the Act is as under:
Appeals from decrees and orders.- (1) All decrees made by the court in any
proceeding under this 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 appeal ordinarily lie from the decisions of the
court given in the exercise of its original civil jurisdiction.
made by the court in any proceeding under Act section 25 or section 26 shall,
subject to the provisions of sub-section (3), be appealable if they are not
interim orders, and every such appeal shall lie to the court to which appeals
ordinarily lie from the decisions of the court given in exercise of its
original civil jurisdiction.
There shall be no appeal under this section on the subject of costs only.
Every appeal under this section shall be preferred within a period of thirty
days from the date of the decree or order." This Section 28 may be
contrasted with Section 96 of the Code which provides for appeal from original
decree, which, in relevant part, is as under:
Appeal from original decree.- (1) Save where otherwise expressly provided in
the body of this Code or by any other law for the time being in force, an
appeal shall lie from every decree passed by any Court exercising original
jurisdiction to the Court authorised to hear appeals from the decisions of such
appeal may lie from an original decree passed ex parte.
appeal shall lie from a decree passed by the Court with the consent of
parties." Rules of procedures are meant to subserve the cause of justice
and not to frustrate it. In the present case when fraud has been alleged by the
wife in getting the petition for divorce filed through her when she never
wanted a divorce and circumstances showed that what she said was prima facie
probable and further from circumstance of the case hereinafter pointed out, the
High Court in our opinion was not justified in rejecting the appeal without
satisfying itself that the requirements of law had been satisfied.
23 of the Hindu Marriage Act mandates the court before granting decree for
divorce, whether defended or not to satisfy itself (1) if the grounds for
claiming relief exist and the petitioner is not taking advantage of his or her
own wrong or disability for the purpose of such relief and (2) the petitioner
has not in any manner been accessory to or connived at or condoned the act or
acts complained of, or where the ground of the petition is cruelty the
petitioner has not in any manner condoned the cruelty. A duty is also cast on
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. Under sub-section (3) of
Section 23 of the Act, the court can even refer the matter to any person named
by the parties for the purpose of reconciliation and to adjourn the matter for
that purpose. These objectives and principles govern all courts trying
matrimonial matters. The judgment of the District Judge is silent of the
learned Judge took into consideration all what is mentioned in Section 23 of
the Act. A question also arises can a party defeat the provisions of
sub-section (2) and sub-section (3) of Section 23 of the Act by remaining ex-parte
and the court is helpless in requiring the presence of that party even if in
the circumstances of the case so required. We are of the opinion that court can
in such a situation require the personal presence of the parties. Though the
proceedings were ex-parte in the case like this the court cannot be a silent
spectator and it should itself endeavour to find out the truth by putting
questions to the witnesses and eliciting answers from them.
circumstances aforesaid, the High Court should not have summarily dismissed the
appeal. By doing so it has also failed to exercise its power of superintendence
under Article 227 of the Constitution. The High Court should have been if the
proceedings before the District Judge were in accordance with the procedure
prescribed and as per the law applicable. To direct the appellant to file a
separate suit for setting aside the decree of divorce on the ground of fraud
otherwise is hardly a solution to the case.
the correctness otherwise of the allegations made by the appellant or the stand
taken, by the respondent, we do not wish to comment as it might prejudice the
case of either of the parties as we are considering of remanding matter back to
the District Judge for trial of the case afresh.
the appeal is allowed, the impugned judgment dated September 27, 1996 of the
High Court and as well as that of District Judge dated December 4, 1995 are set
aside. The matter will go back to the learned District Judge to try and proceed
with the petition in accordance with law.
of this judgment shall be sent to the District Judge, Patiala immediately and the parties are
directed to appear in that court on December 17, 1977.
appellant is entitled to costs which we quantify Rs. 2,000/-.