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CASE NO.: Appeal (civil)  711 of 2007

PETITIONER: JAGRAJ SINGH

RESPONDENT: BIRPAL KAUR

DATE OF JUDGMENT: 13/02/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Civil) No. 9706 OF 2006)

C.K. Thakker, J.

       Leave granted.

       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

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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\027         "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, Italy".

       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

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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  suit\027plaintiff 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: 3. Duty of Court to make efforts for  settlement.\027(1) 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.

(2) 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  settlement.

(3) 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: (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

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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.  (3) 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 marriage.  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

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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 provision.         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 previous order. Setting aside the order, the High Court observed:

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"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 attempted. 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

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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 of law.         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

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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.