Singh Vs. Birpal Kaur  Insc 127 (13 February 2007)
C.K. THAKKER & LOKESHWAR SINGH PANTA
(Arising out of S.L.P. (Civil) No. 9706 OF 2006) C.K. Thakker, J.
The present appeal by special leave has been filed by the appellant-husband
against the interim order dated May 04, 2006 passed by the High Court of Punjab
& Haryana at Chandigarh in F.A.O. No. 13-M of 2005 issuing non-bailable
warrant against him.
Brief facts of the case are that marriage of the appellant and respondent
was solemnized on July 6, 1993 at Barnala, District Sangrur, Punjab and from
the said wedlock, a son was born to them on April 9, 1994, but he died in September, 1995. It is the case of the husband that after marriage, he went to Brunei,
Darusslame in January, 1994. Respondent-wife also joined him after some days.
There she appeared in an interview for a job of Pharmacist. But she was not
selected for the said job and returned to the matrimonial home on February 15, 1994 and then came back to India and lived with her parents. In the meantime,
relations between them became strained and on December 23, 2002, respondent-wife filed a petition for divorce under Section 13 of the Hindu Marriage Act,
1955 (hereinafter referred to as 'the Act') on the ground of desertion and
cruelty in the Court of District Judge, Faridkot, Punjab.
Appellant, through his Special Power of Attorney, filed written statement
contending inter alia that Faridkot Court had no territorial jurisdiction to
hear and try the petition. He also denied the allegations of cruelty and
desertion. It was also pleaded that the wife obtained degree of MBBS from Russia
at the expenses of the appellant-husband and he and his parents had spent an
amount of Rs. ten lakhs on the said MBBS course.
The District Judge heard the matter. On the question of jurisdiction, the
Court observed that since the wife was living with her parents in Barnala and
not at village Saline, within the jurisdiction of District Faridkot, the
District Judge at Sangrur had jurisdiction to try the petition and the District
Judge, Faridkot had no jurisdiction to entertain and decide the petition. The
Court, however, did not stop there and went on to enter into merits of the
matter. Considering the evidence on record, the learned Judge held that the
husband neither treated the wife with cruelty nor deserted her. He, therefore,
held that the wife was not entitled to a decree of divorce.
Aggrieved thereby, the wife preferred an appeal vide FAO No. 13-M of 2005
before the High Court. The High Court issued notice to the husband through the
Special Power of Attorney. In order to bring out reconciliation between the
parties, the High Court directed both the parties to remain present in person
on November 29, 2005. On November 29, 2005, the Power of Attorney of the
husband-appellant herein stated that the husband would positively remain
present in Court on the next date of hearing, i.e. February 2, 2006. The husband, however, did not appear on that day and the case was adjourned to February 21, 2006 and again to May 4, 2006. On May 4, 2006, the High Court passed the
following order "It appears that despite several opportunities granted
after 29.11.2005 to the parties to remain present in the Court, the
respondent-husband has not cared to obey the order. Let non bailable warrants
be issued to the respondent-husband for 30.5.2006 to be executed through the
Ministry of External Affairs, Government of India and the Office of Indian
Consulate General/Ambassador in Italy on the address mentioned in the order
dated 13.1.2005 namely; "Via Localite Pizzi Bornazzo 1, 01020 VT,
Hence, the present appeal by special leave.
On May 29, 2006, this Court, while issuing notice, granted interim stay of
the order of the High Court issuing non-bailable warrant against the husband.
We have heard the learned advocates for the parties.
Learned counsel appearing for the appellant submitted before us that the
High Court had no jurisdiction to issue direction to the husband to remain
personally present in the court and non-bailable warrant for non-appearance of
parties under the Act could not have been issued. By doing so, the Court had
exceeded its power, authority and jurisdiction. He further submitted that the
personal appearance of the party to the proceeding is not mandatory, and at the
most the Court may proceed to consider the matter ex parte. He, therefore,
submitted that the order passed by the High Court deserves to be set aside by
directing the Court to decide the matter in accordance with law.
The learned counsel for the wife, on the other hand, submitted that the
order is interim in nature which does not call for interference by this Court
in the exercise of discretionary jurisdiction under Article 136 of the
Constitution. He further submitted that the Court has authority to direct
personal presence of the parties and no objection can be raised if such
direction is issued. It cannot be termed to be an order without jurisdiction.
We have given our anxious consideration to the rival submissions of the
learned counsel. We must admit that we are unable to accept bald assertion of
the counsel for the appellant that no Court of law can direct a party to remain
personally present. Apart from the matters under the Act i.e. Hindu Marriage
Act, 1955, even in civil matters also, a Court of law may order either the
plaintiff or the defendant to remain personally present in Court. For instance,
Rule 1 of Order III of the Code of Civil Procedure, 1908 ('Code' for short)
states that a party may appear in Court either in person or by his recognized
agent or by a pleader on his behalf. The proviso to the said rule, however,
declares that any such appearance shall, if the Court so directs, be made by
the party in person. Likewise, Rule 12 of Order IX provides that where a
plaintiff or defendant, who was ordered to appear in person, does not appear in
person, or show sufficient cause to the satisfaction of the Court for failing
so to appear, he shall be subject to all the provisions of the said Order
applicable to plaintiffs and defendants respectively who fails to appear. It is
thus clear that in appropriate cases, a Civil Court may direct a party to the
suitplaintiff or defendant, to appear in person.
Special provisions have been made in the Code by the Code of Civil Procedure
(Amendment) Act, 1976, in respect of suits relating to matters concerning the
family in Order XXXII-A. Rule 3 of the said Order requires the Court to make
efforts for settlement of family disputes.
The said rule reads thus:
Duty of Court to make efforts for
In every suit or
proceedings to which this Order applies, an endeavour shall be made by the
Court in the first instance, where it is possible to do so consistent with the
nature and circumstances of the case, to assist the parties in arriving at a
settlement in respect of the subject-matter of the suit.
If, in any such suit of proceeding,
at any stage it appears to the Court that there is a reasonable possibility of a
settlement between the parties, the Court may adjourn the proceeding for such
period as it thinks fit to enable attempts to be made to effect such a
The power conferred by sub-rule (2)
shall be in addition to, and not in derogation of, any other power of the Court
to adjourn the proceedings.
The Act (Hindu Marriage Act, 1955) is a special Act dealing with the
provisions relating to marriages, restitution of conjugal rights and judicial
separation as also nullity of marriage and divorce. Chapter V (Sections 19 to
28A) deals with jurisdiction and procedure of Court in petitions for
restitution of conjugal rights, judicial separation or divorce. Sub-section (1)
of Section 23 expressly states that where a petition for divorce is filed under
Section 13 of the Act on certain grounds, before proceeding to grant any
relief, the Court, 'in the first instance', should make an endeavour to bring
about reconciliation between the parties.
Sub-sections (2) and (3) are material which may be reproduced:
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:
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.
For the purpose of aiding the court
in bringing about such reconciliation, the court may, if the parties so desire
or if the court thinks it just and proper so to do, adjourn the proceedings for
a reasonable period not exceeding fifteen days and refer the matter to any
person named by the parties in this behalf or to any person nominated by the
court if the parties fail to name any person, with directions to report to the
court as to whether reconciliation can be and has been, effected and the court
shall in disposing of the proceeding have due regard to the report.
As observed by this Court in Saroj Rani v.
Sudarshan Kumar Chadha, (1985) 1 SCR 303 : (1984) 4 SCC 90, conjugal rights
are not merely creature of statute but inherent in the very institution of
In R.V.S.L. Annapurna v. R. Saikumar, (1981) Supp SCC 71, there were
matrimonial problems between the husband and the wife. The Court observed that
the two young persons had led to more than one litigation. The Court felt that
such a case should not be driven to a 'bitter legal finish'. On the contrary,
every possible effort must be made so as to restore the conjugal home and bring
back harmony between the husband and the wife.
The Court appreciated the efforts made by learned counsel for both the sides
and after some amount of discussion, persuasion and suggestion, the husband and
wife agreed to live together in a separate house. The Court stated that they
would live together for one month jointly on a trial basis and parents or grant
parents of both the spouses would not, for the time being, visit them. The
Court stated; "Not that we are suggesting that parents or grandparents
should not under any circumstance visit their children or grandchildren, but we
are making an experiment in creating mutual confidence and in that endeavour
even possible irritations and misapprehensions should not be allowed to vitiate
the atmosphere. Solely on that basis and without casting any reflection on any
person, we have made the suggestion, which is acceptable to both sides.
Therefore, within this provisional period of one month the husband and wife
will live together, hopefully happily without their parents or grandparents
visiting them during this spell". (emphasis supplied) The above decisions
of this Court make it more than clear that the approach of a Court of law in
matrimonial matters is much more constructive, affirmative and productive
rather than abstract, theoretical or doctrinaire. Matrimonial matters must be
considered by courts with human angle and sensitivity.
Delicate issues affecting conjugal relations have to be handled carefully
and legal provisions should be construed and interpreted without being
oblivious or unmindful of human weaknesses. Probably, this aspect has been kept
in view by the Legislature in enacting sub- section (2) of Section 23 of the
Act by requiring a court to make all efforts to bring about reconciliation
between the parties.
Though there is no direct decision of this Court on interpretation of
Section 23(2) of the Act, various High Courts have interpreted the said
Before more than four decades, in Jivubai v.
Ningappa, AIR 1963 Mys 3, the High Court of Mysore stated; "There can
be no doubt that a duty is laid on the Court to make every endeavour to bring
about a reconciliation between the parties whenever the nature and the
circumstances of the case permit it to do so".
Failure of the trial Court to make such effort does not mean that appellate
Court at a later stage should not undertake such exercise. "The intention
of the provision undoubtedly is to render all possible assistance in the
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". If no endeavour
had been made by the Court, it will undoubtedly be a serious omission.
In Chhote Lal v. Kamla Devi & Ors., AIR 1967 Patna 269, the High Court
of Patna held that sub-section (2) of Section 23 of the Act enjoins upon the
Court a duty to make a sincere effort at reconciliation before proceeding to
deal with the case in the usual course. It was observed that in order that the
requirement of making 'every endeavour' is fulfilled, it is at least requisite
that the court should have a first hand version. Such first hand version,
obviously, can be had if the parties are present before the Court. In such a
situation, the Court would be in a position to appreciate what really had led
to the estrangement between the husband and wife.
The Court stated:
"A perusal of sub-section (2) of Section 23 of the Act leaves no room
for doubt that even where the estrangement between the parties to the marriage
might seem to be acute, it is the duty of the court to make every endeavour to
bring the parties to reconciliation. Of course, the court cannot help, if in
spite of its endeavour no reconciliation can be brought about, but every
endeavour in that direction has got to be made in cases of this nature".
(emphasis supplied) In Raghunath v. Urmila Devi, AIR 1973 Allahabad 203,
construing Section 23(2) of the Act, the Court held that the effort of
reconciliation is to be made by the Court right from the start of the case and
not only after the closure of final hearing of the matter and before the Court
proceeds to grant relief under the Act. It was also observed that the Court
should not give up the effort for reconciliation merely on the ground that
there is no chance for reconciliation. It was held that since the matter is
very much personal to the parties, their appearance in person before the Court
is all the more essential while the Court proceeds to bring about
reconciliation between them. It is the duty of the Court to make sincere
endeavour at reconciliation. In that case, the Court ordered the parties to
remain personally present. On the adjourned day, however, counsel for the wife
stated that there was no possibility for reconciliation whereupon the Court
ordered that the attendance of wife would not be necessary and recalled the
Setting aside the order, the High Court observed:
"This was clearly not in consonance with the provisions of sub-section
(2) of Section 23 of the aforesaid Act. The Court below did not direct the
opposite party No.1 to appear in person and state about that fact nor did it
ask for her personal affidavit. In my view, the requirements of the law were
not complied with and the Court below failed to perform its duty laid down in
the aforesaid provision of the Act". (emphasis supplied) In Jaswinder Kaur
v. Kulwant Singh, AIR 1980 P&H 220, a similar view was taken by the High
Court of Punjab & Haryana. It was observed that an attempt for
reconciliation between the parties should be made in the beginning and not at
the end. It was indicated that the matrimonial Court, beside being a Court of
law, has to decide matters and grant relief thereon in a very sensitive field.
It is for the Court to choose, with or without the suggestion of the counsel or
the parties, the time at which reconciliation, wherever possible and whenever
consistently with the nature and circumstances of the case, should be
In Smt. Manju Singh v. Ajay Bir Singh, AIR 1986 Delhi 420, it was observed
that the Court should try first for reconciliation. If an endeavour of
reconciliation is not made, the order would be illegal.
In Sushma Kumari v. Om Prakash, AIR 1993 Patna 156, it was held that the
duty is cast on the Court to take steps for reconciliation between the parties,
though non-observance of endeavour for reconciliation would not make the order
of the Court without jurisdiction. But in that case the defect can be rectified
by the appellate Court.
From the above case-law, in our judgment, it is clear that a Court is
expected, nay, bound, to make all attempts and endeavours of reconciliation. To
us, sub- section (2) of Section 23 is a salutary provision exhibiting the
intention of Parliament requiring the Court 'in the first instance' to make
every endeavour to bring about a reconciliation between the parties. If in the
light of the above intention and paramount consideration of the Legislature in
enacting such provision, an order is passed by a Matrimonial Court asking a
party to the proceeding (husband or wife) to remain personally present, it
cannot successfully be contended that the Court has no such power and in case a
party to a proceeding does not remain present, at the most, the Court can
proceed to decide the case ex parte against him/her. Upholding of such argument
would virtually make the benevolent provision nugatory, ineffective and
unworkable, defeating the laudable object of reconciliation in matrimonial
disputes. The contention of the learned counsel for the appellant, therefore,
cannot be upheld.
There is another aspect also which is relevant and material. As already
observed by us earlier, the petition for divorce was filed by the wife in the
Court of District Judge, Faridkot. The petition was contested by the husband
raising several contentions including the contention as to jurisdiction of
Faridkot Court to entertain, deal with and decide the matter. Though the Court
upheld the contention and ruled that it had no jurisdiction, it went into
merits of the matter. No effort whatsoever had been made by the Court as
required by sub-section (2) of Section 23 of the Act and the Court held that
the record did not show that the husband either treated the wife with cruelty
or deserted her and accordingly the petition was dismissed on merits observing
that the wife was not entitled to a decree for divorce. It is settled law that
once the Court holds that it has no jurisdiction in the matter, it should not
consider the merits of the matter. In the present case, though the issue as to
jurisdiction of the Court was decided against the wife, without following the
procedure under Section 23(2) of the Act, the Court dismissed the petition on
merits which could not have been done.
There is yet one more reason which is important.
When the appeal was filed in the High Court by the aggrieved wife, the Court
entertained it. Since the husband was not in India, notice was issued to him at
his address as given in the Special Power of Attorney at Itali. The said order
was passed on January 13, 2005.
On July 28, 2005, the Court noted that the notice had not come back served
or unserved and hence, fresh notice was issued by making it returnable on
November 22, 2005. On the returnable date, i.e. November 22, 2005, the wife was
present in the Court. The Power of Attorney and brother of husband was also
present in Court in person. The Court noted that the Power of Attorney
contacted the respondent who is residing in Italy to find out the date on which
he can remain present in the Court in person in the month of December, 2005.
The Power of Attorney stated that he would be able to give a final date
within one week. Accordingly, the case was differed for one week. On November 29, 2005, the Power of Attorney made a statement before the Court that the
husband "shall positively be present in person on 2.2.2006". The case
was, therefore, adjourned to February 2, 2006. On that day, however, the
husband did not appear. Again, by an order dated April 17, 2004, the parties were directed to be present in Court on May 4, 2006. Since on that date also, the
husband did not remain present whereas the wife attended the Court, the
impugned order directing issuance of non-bailable warrant was passed.
The learned counsel for the husband contended before this Court that the
sole intention of the wife was to get him arrested and it was not possible for
the husband to come to India. Considering the grievance and apprehension on the
part of the husband, this Court, while issuing notice on May 29, 2006 granted interim stay against issuance of non-bailable warrant and the said interim
relief continues even today. At the time of hearing of the appeal, we have
asked the learned counsel for the appellant-husband that if the apprehension of
the husband is that he would be arrested on coming to India, interim relief
granted earlier and operative can be continued so as to enable him to remain
personally present in Court and to comply with the order. The learned counsel,
however, insisted that no such order could have been passed by the Court. Since
we are of the view that the Court has jurisdiction to pass such order, it
cannot be said that the direction issued by the High Court is without authority
Again, we are exercising discretionary and equitable jurisdiction under
Article 136 of the Constitution. If, in spite of protection granted by this
Court, the husband is bent upon to disobey and flout the order passed by the
Court which is in consonance with Section 23(2) of the Act, he cannot claim as
of right the equitable relief from this Court.
For the foregoing reasons, in our opinion, no case has been made out by the
appellant. The order passed by the High Court deserves no interference as we
see no legal infirmity therein. The appeal deserves to be dismissed and is
accordingly dismissed with costs.