Under S. 23(2) of the Act it is incumbent on the matrimonial Court, to endeavour to bring about reconciliation between the parties, a great responsibility is cast on the Court. A Hindu marriage is not contractual but sacrosanct, it is not easy to create such ties but more difficult to break them; once anulled, it cannot be restored. A Judge should actively stimulate rapproachment process. It is fundamental that reconciliation of a ruptured marriage is the first duty of the Judge. The sanctity of marriage is the corner stone of civilisation. The object and purpose, of this provision is obvious. The State is interested in the security and preservation of the institution of marriage and for this the Court is required to make attempt to bring about, a reconciliation between the parties. However, omission to make attempts at reconciliation will not take away the jurisdiction of the Court to pass any decree under the Act. This is not correct to say that in a divorce case reconciliation efforts have to be timed immediately preceding the grant of decree and not at any other stage of the proceedings of the trial. Such an attempt can be and should be made at any stage. The matrimonial Court is required to call parties and make a genuine effort for their reconciliation, there is not even a whisper in this provision that the matrimonial Court has the power to strike off the defence of that spouse, who after being given opportunities for reconciliation fails to appear.
2. Admitted facts of the case are that the parties were married on August 13, 1988, at Jalandhar according to Hindu rites. Thereafter, they lived together at Fatehabad, Tehsil Tarn Taran, District Amritsar. In this wedlock respondent gave birth to a female child on May 2, 1989.
3. In the divorce petition, respondent-wife pleaded that soon after the marriage, appellant-husband threatened her with cruelty. She was tortured time and again by him and his parents on the count that Her parents have not given sufficient dowry at the time of marriage. Appellant-husband was addicted to vices and being intoxicated, he used to give her merciless beatings and abuse her. She was also threatened that she would be eliminated. She was not allowed to use her dowry articles and gold ornaments, which were kept by her husband and in-laws. Thus, these cruel acts of the husband and his family members caused mental agony to her. She averred that under those circumstances, it is not safe for her to live with the husband in the matrimonial home. The husband tortured her and asked her to bring Rs. 25,000/-, but she was unable to fulfil his desire. False allegations were levelled against her. Appellant-husband deserted her since January 30, 1989, without any reasonable cause or excuse for separate living. He met her for the last time on May 31, 1989, and made it very clear that he would not come and see her. Since January 30, 1989, she is residing in her parental home. Her husband never cared to enquire about her welfare. In the presence of the persons, named in the divorce petition, appellant-husband stated that he would not let her live in the matrimonial home. Thus, he has brought matrimonial relations permanently to ah end. There is no possibility of any reconciliation. Hence, she claimed divorce.
4. On being noticed, appellant-husband filed written statement raising preliminary objection that as respondent-wife wants to take benefit of her own wrongs, her petition is not maintainable. He denied that, he ever maltreated her or tortured or treated her with cruelty or asked her to bring more money or anything else. According to him, she was unable to adjust herself in the matrimonial home. She wanted to live with her parents at Jalandhar, to which he did not agree. On her own, she left the matrimonial home on January 28, 1991, without his consent. She has also taken away all her jewellery etc. as well as the minor child. He made attempts in May 1991 and July 1991 to bring her back, but she declined.
5. After filing of the replication by the wife, the lower Court adjourned the case for reconciliation. On three dates the husband-appellant did not appear for reconciliation. On May 13, 1992, the lower Court struck down his defence under S. 23(2) of the Act and without framing issues, adjourned the case for wife-respondent's evidence, which was recorded on July 23, 1992, and on that very date, decree of divorce was granted.
6. Appellant's learned counsel, relying on Smt. Kaniz Fatima v. Shah Naim, Ashraf, AIR 1983 Allahabad 450 and U. Stoting Nonglang v. Ka Klin Lyngdoh Umiong, AIR 1982 Gauhati 83, contended that when the allegations made in the divorce petition were traversed by the appellant-husband, the Court was duty-bound to frame issues under O. 14, R. 1, Code of Civil Procedure. He also contended that only on three dates case was fixed for reconciliation, but as the petitioner-husband counsel did not inform him of any date so fixed, he could not appear before the matrimonial Court for the said purpose. His counsel never informed him of the progress of the case, therefore, the case proceeded ex parte and on the basis of his non-appearance in reconciliation proceedings, his defence was struck off and divorce decree was granted on the basis of evidence adduced by the respondent-wife.
7. Appellant's counsel further contended that in this case from the Zimini orders of the lower Court, it is evident that after many attempts appellant-husband was served by publication. His counsel appeared on January 25, 1992, the case was adjourned to February 12, 1992, for filing of written statement. On this adjourned date, lawyers were on strike, hence both the parties sought an adjournment and the case was adjourned to March 5, 1992. Written statement was not filed, hence adjournment was granted for this purpose at costs of Rs. 25/- and the case was adjourned to March 27, 1992. On this date, written statement was filed and the Court adjourned the case for filing of rejoinder and reconciliation for April 9, 1992. This was the first date whereby appellant-husband was ordered through his counsel to remain present on April 9, 1992, for reconciliation. On April 9, 1992, again lawyers were on strike, hence the case was adjourned for rejoinder and reconciliation on April 24, 1992. On April 24, 1992, appellant-husband was not present in the Court for reconciliation. Last opportunity was granted to his counsel to produce him for reconciliation, the case was adjourned to May 12, 1992, and on May 13, 1992, as the appellant-husband was not present for reconciliation, his defence was struck down. Hence, it is obvious that only two effective dates were given for reconciliation and immediately on May 13, 1992, when the appellant-husband did not appear for the said purpose, his defence was struck off.
8. Appellant's learned counsel also submitted that while filing this appeal he filed an application under S. 5 of the Limitation Act seeking condonation of delay of i26 days. In this petition also, he averred that after filing of the written statement, his counsel assured him that his personal presence is not required; the case will proceed further and if his presence is required, he would be called by post; therefore, he was not present in the lower Court. When the case was taken up on the adjourned dates, his counsel never informed him that the case is fixed for reconciliation. When the postman informed him that a registered letter from Jalandhar Court was sent in his name, he immediately rushed to Jalandhar Court on December 23, 1992 and then his counsel informed him that after the decision of the case, his clerk informed him (appellant) by a letter, which might have been lost in the transit. Immediately he applied for certified copy of the order dated July 23, 1992, and on January 11, 1993, he filed appeal. He filed his affidavit in support of this petition. Respondent-wife controverted these averments made in his petition as well as in the affidavit. She also filed her counter-affidavit before the Division Bench. But the Division Bench vide order dated January 24, 1994, allowed the petition and condoned the delay.
9. Appellant's counsel further submitted that the appellant was always ready and willing to take back the respondent-wife in his marital fold. His conduct is evident from the proceedings of this appeal. At one point of time the parties agreed for obtaining a decree of divorce on the basis of mutual consent; later on attempts for reconciliation were made; appellant-husband made an attempt to live with the respondent-wife at Jalandhar in her Government accommodation; he also tried for her transfer from village Dhunola Tehsil to district Jalandhar; parties lived together for some time in harmony, but thereafter again disparagement cropped up and they separated.
10. Appellant's learned counsel contended that when the appellant-husband did not appear for reconciliation immediately the Court should have proceeded with the trial of the matrimonial case; it should have adjourned the case for framing of the issues and thereafter should have fixed a date for recording evidence of both the parties. If later on, appellant-husband or his counsel would have failed to appear in the case, it could have proceeded ex parte. But simply on the ground that the husband failed to appear for reconciliation, S. 23(2) of the Act does not empower the matrimonial Court to strike off the defence of such a spouse and on this count the decree under challenge is liable to be set aside.
11. Respondent-wife's learned counsel contended that before deciding any matrimonial cause, a duty is enjoined upon the Court to call for the parties for reconciliation under S. 23(2) of the Act. Various dates were given by the matrimonial Court for appearance of the appellant-husband for the purpose of reconciliation but as he chose not to appear, the Court had no other alternative but to strike off his defence and when the defence was struck off, it was not necessary for the matrimonial Court to frame issues under Order 14, Rule 1, Code of Civil Procedure. Thus, he submitted that the lower Court has not fallen into any error in granting divorce decree in favour of the respondent-wife.
12. Respondent's learned counsel also referred to the provisions of S. 24 of the Act and contended that even under S. 24 there is no provision of striking off defence of such a spouse, who fails to pay maintenance allowance and litigation expenses to other spouse during the pendency of the matrimonial case/ appeal, but by now by judicial pronouncements, it has become settled law that when the spouse so ordered fails to pay maintenance allowance and litigation expenses to the other spouse, the Court has jurisdiction to strike off his/her defence. In support of this contention, he has relied on Sumarti Devi v. Jai Parkash, 1985 (1) Hindu LR 84, Sheela Devi v. Madan Lal, 1981 Hindu LR 126 and Gurdev Kaur v. Dalip Singh, 1980 Hindu LR 240.
13. Respondent's learned counsel valiantly argued that the provisions of S. 23(2) of the Act stand on the same footing and once the spouse called for reconciliation deliberately declines to appear before the Court for the said purpose, the Court has jurisdiction to strike off the defence of such spouse.
14. To my mind, respondent's learned counsel's submissions do not merit consideration. In our Indian society, we treat the marriage as sacrosanct and in past divorce was not favoured/approved by the society. However, with the changing attitudes towards the life and bringing in the element of contract in the concept of marriage, Hindu Marriage Act was enacted to give right to the spouse to seek divorce on the grounds specified therein. The object and purpose of S. 23(2) is quite different from S. 24. Both these provisions are quoted below for ready reference:--
"(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:
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-sec.(1) of S. 13.
24. Maintenance pendente lite and expenses of proceedings.-- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
Section 24 of the Act has been enacted with a view to empower the Court to direct payment of maintenance. Pendente lite and litigation expenses to a party in matrimonial proceedings, are obviously to provide financial assistance to an indigent spouse to maintain herself/himself during the pendency of the proceedings and also to have sufficient funds to carry on litigation so that he/she does not unduly suffer in the conduct of the case for want of funds. Thus, grant of maintenance allowance is always aimed at preserving the existence of an individual, who is supposed to be in a position to support himself/herself. Section 24 of the Act contemplates that none of the parties to a matrimonial cause should be able to take undue advantage of his financial superiority to defeat the rightful claims of the weaker party. These proceedings have the limited purpose of enabling the weaker party to substantiate his or her rights during the pendency of the proceedings.
15. The provisions of Ss. 23(2) and 24 are to be interpreted keeping in mind the object of enacting Hindu Marriage Act, 1955, which was to amend and codify the law relating to marriage amongst the Hindus. The principles of prestine Hindu law have been statutorily modified by this Act. The basic tenets of statutory interpretation are to be kept in mind. According to Blackstone the most fair and rational method for interpreting a statute is by exploring the intention of the Legislature through the most natural and probable signs which are "either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. (Black-stone-Commentaries on the Laws of England Vol. I, p. 59 referred to in Atmaram Mittal v. Ishwar Singh Punia, AIR 1988 SC 2031).
16. In the words of O. Chinnappa Reddy, J. "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textural interpretation match the contextual. A statute is best interpreted when we know why it was enacted" (Reserve Bank of India v. Fearless General Finance and Investment Co., AIR 1987 SC 1023.
17. A bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficent legislation to futility. As stated by Iyer, J. "to be literal in meaning is to see the skin and miss the soul ....... The judicial key to construction is the composite perception of the deha and the dehi of the provision" (Chairman Board of Mining v. Ramjee, AIR 1977 SC 965 at page 968.
18. If there is obvious anomaly in the application of law, the Court could shape the law to remove the anomaly. If the strict grammatical interpretation gives rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislation ..... "The legislators do not always deal with specific controversies which the Courts decide. They incorporate general purposes behind the statutory words and it is for the Courts to decide specific cases". Union of India v. Filip Tiago De Gama, AIR 1990 SC 981.
19. Under S. 23(2) of the Act it is incumbent on the matrimonial Court, to endeavour to bring about reconciliation between the parties, a great responsibility is cast on the Court. A Hindu marriage is not contractual but sacrosanct, it is not easy to create such ties but more difficult to break them; once anulled, it cannot be restored. A Judge should actively stimulate rapproachment process. It is fundamental that reconciliation of a ruptured marriage is the first duty of the Judge. The sanctity of marriage is the corner stone of civilisation. The object and purpose, of this provision is obvious. The State is interested in the security and preservation of the institution of marriage and for this the Court is required to make attempt to bring about, a reconciliation between the parties. However, omission to make attempts at reconciliation will not take away the jurisdiction of the Court to pass any decree under the Act. This is not correct to say that in a divorce case reconciliation efforts have to be timed immediately preceding the grant of decree and not at any other stage of the proceedings of the trial. Such an attempt can be and should be made at any stage. The matrimonial Court is required to call parties and make a genuine effort for their reconciliation, there is not even a whisper in this provision that the matrimonial Court has the power to strike off the defence of that spouse, who after being given opportunities for reconciliation fails to appear.
20. Considering all the aspects of the case when the Court passes an order under S. 24 of the Act in favour of any spouse and if the other purpose, who is so ordered fails to abide by the order deliberately and avoids to pay maintenance allowance and litigation expenses to the other spouse, the result is obvious. The spouse in whose favour the order is passed is unable to maintain himself or herself and also faces financial hardship in conducting the case for want of funds. Thus, a liability is imposed on such spouse against whom such an order under S. 24 of the Act is passed vis-a-vis a right is created in favour of the spouse, who is knocking the door of the Court for grant of maintenance and litigation expenses. Avoidance of such order has legal consequences as it impedes further progress of the case and, therefore, when a spouse against whom order under S. 24 of the Act is passed wholly or partially does not comply with the said order of the Court, the Courts have interpreted such a situation in favour of the spouse in whose favour such an order is passed and resultantly, under such circumstances, the defence of the spouse against whom such order is passed is struck off as by his own conduct, he forfeits the right to defend/prosecute the case.
21. But under S. 23(2) of the Act neither such a liability is cast on one spouse nor such a right is given to the other spouse. Reconciliation is a mutual dialogue to burry their differences. A duty is cast on the Court to call the party at the initial stage for reconciliation. Even before delivering judgment and decree, the Court can make effort for reconciliation. Thus, the stage of trial for calling the parties for reconciliation is left to the discretion of the Court.
22. Provisions of Ss. 24 and 23(2) of the Act stand on different footings, different rights and liability flow from S. 24, but no such rights and liabilities flow from S. 23(2) of the Act and precisely that is the reason why in so many judgments when the spouse against whom an order under S. 24 of the Act 14 passed, fails to comply with that order, his or her defence is struck off and the matrimonial cause is thereafter decided. To my mind the aims, object, reasons and the scheme of the Act do not envisage the type of situation created and the type of order passed by the matrimonial Court on May 13, 1992.
23. In Parkash Chander v. Raj Kumar, (1987) 2 Hindu LR 237, Madhya Pradesh High Court had an occasion to consider somewhat similar facts. In that case' the petitioner filed civil suit for dissolution of his marriage. The case was adjourned for reconciliation under S. 23(2) of the Act. On the said date the petitioner's counsel did put in appearance but the petitioner remained absent. The petitioner's learned counsel stated at the Bar that the Court might proceed on the basis that the petitioner is not willing for any reconciliation. In such circumstances, the learned District Judge dismissed the petition on the ground that the petitioner did not cooperate with the Court in the performance of its necessary duty relating to reconciliation. A single Bench of Madhya Pradesh High Court held that such a dismissal of the petition is not warranted by law and, therefore, the order was set aside.
24. In Kalavati Narbheran Panchal v. Shamaldas Punjalal Panchal, 1984 Hindu LR 40, the High Court set aside the decree of divorce as in that case the matrimonial Judge refused to grant second adjournment to the wife-Advocate at the stage of reconciliation and thereafter he recorded husband's evidence and granted decree of divorce. The Gujarat High Court held that the trial Court should have made endeavour to bring about reconciliation between the parties and if an attempt to reconciliation had failed, then the wife should have been given adequate opportunity to file written statement and put her case effectively. The High Court observed that that has resulted in miscarriage of justice.
25. Thus, in my considered view, the lower Court fell into an error in striking down the appellant-husband's defence on May 13, 1992, and, thereafter without framing issues and without giving an opportunity to the appellant-husband to adduce his evidence, he recorded the evidence of respondent-wife on July 18, 1992, and in unwarranted hot haste decided the divorce petition in her favour.
26. Resultantly, appeal is hereby allowed; trial Court's judgment and decree are set aside; case is remanded to the trial Court to frame issues on the basis of pleadings on record and decide it in accordance with law.
27. Appeal allowed.
Print Page
Punjab-Haryana High Court
Love Kumar vs Sunita Puri on 26 September, 1996
Equivalent citations: AIR 1997 P H 189, II (1998) DMC 711, (1997) 116 PLR 271
1. Husband has filed this appeal under S. 28 of the Hindu Marriage Act (in short, the Act) against the judgment and decree dated July 23, 1992, whereby a decree of divorce is granted in favour of respondent-wife on the grounds of cruelty and desertion.2. Admitted facts of the case are that the parties were married on August 13, 1988, at Jalandhar according to Hindu rites. Thereafter, they lived together at Fatehabad, Tehsil Tarn Taran, District Amritsar. In this wedlock respondent gave birth to a female child on May 2, 1989.
3. In the divorce petition, respondent-wife pleaded that soon after the marriage, appellant-husband threatened her with cruelty. She was tortured time and again by him and his parents on the count that Her parents have not given sufficient dowry at the time of marriage. Appellant-husband was addicted to vices and being intoxicated, he used to give her merciless beatings and abuse her. She was also threatened that she would be eliminated. She was not allowed to use her dowry articles and gold ornaments, which were kept by her husband and in-laws. Thus, these cruel acts of the husband and his family members caused mental agony to her. She averred that under those circumstances, it is not safe for her to live with the husband in the matrimonial home. The husband tortured her and asked her to bring Rs. 25,000/-, but she was unable to fulfil his desire. False allegations were levelled against her. Appellant-husband deserted her since January 30, 1989, without any reasonable cause or excuse for separate living. He met her for the last time on May 31, 1989, and made it very clear that he would not come and see her. Since January 30, 1989, she is residing in her parental home. Her husband never cared to enquire about her welfare. In the presence of the persons, named in the divorce petition, appellant-husband stated that he would not let her live in the matrimonial home. Thus, he has brought matrimonial relations permanently to ah end. There is no possibility of any reconciliation. Hence, she claimed divorce.
4. On being noticed, appellant-husband filed written statement raising preliminary objection that as respondent-wife wants to take benefit of her own wrongs, her petition is not maintainable. He denied that, he ever maltreated her or tortured or treated her with cruelty or asked her to bring more money or anything else. According to him, she was unable to adjust herself in the matrimonial home. She wanted to live with her parents at Jalandhar, to which he did not agree. On her own, she left the matrimonial home on January 28, 1991, without his consent. She has also taken away all her jewellery etc. as well as the minor child. He made attempts in May 1991 and July 1991 to bring her back, but she declined.
5. After filing of the replication by the wife, the lower Court adjourned the case for reconciliation. On three dates the husband-appellant did not appear for reconciliation. On May 13, 1992, the lower Court struck down his defence under S. 23(2) of the Act and without framing issues, adjourned the case for wife-respondent's evidence, which was recorded on July 23, 1992, and on that very date, decree of divorce was granted.
6. Appellant's learned counsel, relying on Smt. Kaniz Fatima v. Shah Naim, Ashraf, AIR 1983 Allahabad 450 and U. Stoting Nonglang v. Ka Klin Lyngdoh Umiong, AIR 1982 Gauhati 83, contended that when the allegations made in the divorce petition were traversed by the appellant-husband, the Court was duty-bound to frame issues under O. 14, R. 1, Code of Civil Procedure. He also contended that only on three dates case was fixed for reconciliation, but as the petitioner-husband counsel did not inform him of any date so fixed, he could not appear before the matrimonial Court for the said purpose. His counsel never informed him of the progress of the case, therefore, the case proceeded ex parte and on the basis of his non-appearance in reconciliation proceedings, his defence was struck off and divorce decree was granted on the basis of evidence adduced by the respondent-wife.
7. Appellant's counsel further contended that in this case from the Zimini orders of the lower Court, it is evident that after many attempts appellant-husband was served by publication. His counsel appeared on January 25, 1992, the case was adjourned to February 12, 1992, for filing of written statement. On this adjourned date, lawyers were on strike, hence both the parties sought an adjournment and the case was adjourned to March 5, 1992. Written statement was not filed, hence adjournment was granted for this purpose at costs of Rs. 25/- and the case was adjourned to March 27, 1992. On this date, written statement was filed and the Court adjourned the case for filing of rejoinder and reconciliation for April 9, 1992. This was the first date whereby appellant-husband was ordered through his counsel to remain present on April 9, 1992, for reconciliation. On April 9, 1992, again lawyers were on strike, hence the case was adjourned for rejoinder and reconciliation on April 24, 1992. On April 24, 1992, appellant-husband was not present in the Court for reconciliation. Last opportunity was granted to his counsel to produce him for reconciliation, the case was adjourned to May 12, 1992, and on May 13, 1992, as the appellant-husband was not present for reconciliation, his defence was struck down. Hence, it is obvious that only two effective dates were given for reconciliation and immediately on May 13, 1992, when the appellant-husband did not appear for the said purpose, his defence was struck off.
8. Appellant's learned counsel also submitted that while filing this appeal he filed an application under S. 5 of the Limitation Act seeking condonation of delay of i26 days. In this petition also, he averred that after filing of the written statement, his counsel assured him that his personal presence is not required; the case will proceed further and if his presence is required, he would be called by post; therefore, he was not present in the lower Court. When the case was taken up on the adjourned dates, his counsel never informed him that the case is fixed for reconciliation. When the postman informed him that a registered letter from Jalandhar Court was sent in his name, he immediately rushed to Jalandhar Court on December 23, 1992 and then his counsel informed him that after the decision of the case, his clerk informed him (appellant) by a letter, which might have been lost in the transit. Immediately he applied for certified copy of the order dated July 23, 1992, and on January 11, 1993, he filed appeal. He filed his affidavit in support of this petition. Respondent-wife controverted these averments made in his petition as well as in the affidavit. She also filed her counter-affidavit before the Division Bench. But the Division Bench vide order dated January 24, 1994, allowed the petition and condoned the delay.
9. Appellant's counsel further submitted that the appellant was always ready and willing to take back the respondent-wife in his marital fold. His conduct is evident from the proceedings of this appeal. At one point of time the parties agreed for obtaining a decree of divorce on the basis of mutual consent; later on attempts for reconciliation were made; appellant-husband made an attempt to live with the respondent-wife at Jalandhar in her Government accommodation; he also tried for her transfer from village Dhunola Tehsil to district Jalandhar; parties lived together for some time in harmony, but thereafter again disparagement cropped up and they separated.
10. Appellant's learned counsel contended that when the appellant-husband did not appear for reconciliation immediately the Court should have proceeded with the trial of the matrimonial case; it should have adjourned the case for framing of the issues and thereafter should have fixed a date for recording evidence of both the parties. If later on, appellant-husband or his counsel would have failed to appear in the case, it could have proceeded ex parte. But simply on the ground that the husband failed to appear for reconciliation, S. 23(2) of the Act does not empower the matrimonial Court to strike off the defence of such a spouse and on this count the decree under challenge is liable to be set aside.
11. Respondent-wife's learned counsel contended that before deciding any matrimonial cause, a duty is enjoined upon the Court to call for the parties for reconciliation under S. 23(2) of the Act. Various dates were given by the matrimonial Court for appearance of the appellant-husband for the purpose of reconciliation but as he chose not to appear, the Court had no other alternative but to strike off his defence and when the defence was struck off, it was not necessary for the matrimonial Court to frame issues under Order 14, Rule 1, Code of Civil Procedure. Thus, he submitted that the lower Court has not fallen into any error in granting divorce decree in favour of the respondent-wife.
12. Respondent's learned counsel also referred to the provisions of S. 24 of the Act and contended that even under S. 24 there is no provision of striking off defence of such a spouse, who fails to pay maintenance allowance and litigation expenses to other spouse during the pendency of the matrimonial case/ appeal, but by now by judicial pronouncements, it has become settled law that when the spouse so ordered fails to pay maintenance allowance and litigation expenses to the other spouse, the Court has jurisdiction to strike off his/her defence. In support of this contention, he has relied on Sumarti Devi v. Jai Parkash, 1985 (1) Hindu LR 84, Sheela Devi v. Madan Lal, 1981 Hindu LR 126 and Gurdev Kaur v. Dalip Singh, 1980 Hindu LR 240.
13. Respondent's learned counsel valiantly argued that the provisions of S. 23(2) of the Act stand on the same footing and once the spouse called for reconciliation deliberately declines to appear before the Court for the said purpose, the Court has jurisdiction to strike off the defence of such spouse.
14. To my mind, respondent's learned counsel's submissions do not merit consideration. In our Indian society, we treat the marriage as sacrosanct and in past divorce was not favoured/approved by the society. However, with the changing attitudes towards the life and bringing in the element of contract in the concept of marriage, Hindu Marriage Act was enacted to give right to the spouse to seek divorce on the grounds specified therein. The object and purpose of S. 23(2) is quite different from S. 24. Both these provisions are quoted below for ready reference:--
"(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:
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-sec.(1) of S. 13.
24. Maintenance pendente lite and expenses of proceedings.-- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
Section 24 of the Act has been enacted with a view to empower the Court to direct payment of maintenance. Pendente lite and litigation expenses to a party in matrimonial proceedings, are obviously to provide financial assistance to an indigent spouse to maintain herself/himself during the pendency of the proceedings and also to have sufficient funds to carry on litigation so that he/she does not unduly suffer in the conduct of the case for want of funds. Thus, grant of maintenance allowance is always aimed at preserving the existence of an individual, who is supposed to be in a position to support himself/herself. Section 24 of the Act contemplates that none of the parties to a matrimonial cause should be able to take undue advantage of his financial superiority to defeat the rightful claims of the weaker party. These proceedings have the limited purpose of enabling the weaker party to substantiate his or her rights during the pendency of the proceedings.
15. The provisions of Ss. 23(2) and 24 are to be interpreted keeping in mind the object of enacting Hindu Marriage Act, 1955, which was to amend and codify the law relating to marriage amongst the Hindus. The principles of prestine Hindu law have been statutorily modified by this Act. The basic tenets of statutory interpretation are to be kept in mind. According to Blackstone the most fair and rational method for interpreting a statute is by exploring the intention of the Legislature through the most natural and probable signs which are "either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. (Black-stone-Commentaries on the Laws of England Vol. I, p. 59 referred to in Atmaram Mittal v. Ishwar Singh Punia, AIR 1988 SC 2031).
16. In the words of O. Chinnappa Reddy, J. "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textural interpretation match the contextual. A statute is best interpreted when we know why it was enacted" (Reserve Bank of India v. Fearless General Finance and Investment Co., AIR 1987 SC 1023.
17. A bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficent legislation to futility. As stated by Iyer, J. "to be literal in meaning is to see the skin and miss the soul ....... The judicial key to construction is the composite perception of the deha and the dehi of the provision" (Chairman Board of Mining v. Ramjee, AIR 1977 SC 965 at page 968.
18. If there is obvious anomaly in the application of law, the Court could shape the law to remove the anomaly. If the strict grammatical interpretation gives rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislation ..... "The legislators do not always deal with specific controversies which the Courts decide. They incorporate general purposes behind the statutory words and it is for the Courts to decide specific cases". Union of India v. Filip Tiago De Gama, AIR 1990 SC 981.
19. Under S. 23(2) of the Act it is incumbent on the matrimonial Court, to endeavour to bring about reconciliation between the parties, a great responsibility is cast on the Court. A Hindu marriage is not contractual but sacrosanct, it is not easy to create such ties but more difficult to break them; once anulled, it cannot be restored. A Judge should actively stimulate rapproachment process. It is fundamental that reconciliation of a ruptured marriage is the first duty of the Judge. The sanctity of marriage is the corner stone of civilisation. The object and purpose, of this provision is obvious. The State is interested in the security and preservation of the institution of marriage and for this the Court is required to make attempt to bring about, a reconciliation between the parties. However, omission to make attempts at reconciliation will not take away the jurisdiction of the Court to pass any decree under the Act. This is not correct to say that in a divorce case reconciliation efforts have to be timed immediately preceding the grant of decree and not at any other stage of the proceedings of the trial. Such an attempt can be and should be made at any stage. The matrimonial Court is required to call parties and make a genuine effort for their reconciliation, there is not even a whisper in this provision that the matrimonial Court has the power to strike off the defence of that spouse, who after being given opportunities for reconciliation fails to appear.
20. Considering all the aspects of the case when the Court passes an order under S. 24 of the Act in favour of any spouse and if the other purpose, who is so ordered fails to abide by the order deliberately and avoids to pay maintenance allowance and litigation expenses to the other spouse, the result is obvious. The spouse in whose favour the order is passed is unable to maintain himself or herself and also faces financial hardship in conducting the case for want of funds. Thus, a liability is imposed on such spouse against whom such an order under S. 24 of the Act is passed vis-a-vis a right is created in favour of the spouse, who is knocking the door of the Court for grant of maintenance and litigation expenses. Avoidance of such order has legal consequences as it impedes further progress of the case and, therefore, when a spouse against whom order under S. 24 of the Act is passed wholly or partially does not comply with the said order of the Court, the Courts have interpreted such a situation in favour of the spouse in whose favour such an order is passed and resultantly, under such circumstances, the defence of the spouse against whom such order is passed is struck off as by his own conduct, he forfeits the right to defend/prosecute the case.
21. But under S. 23(2) of the Act neither such a liability is cast on one spouse nor such a right is given to the other spouse. Reconciliation is a mutual dialogue to burry their differences. A duty is cast on the Court to call the party at the initial stage for reconciliation. Even before delivering judgment and decree, the Court can make effort for reconciliation. Thus, the stage of trial for calling the parties for reconciliation is left to the discretion of the Court.
22. Provisions of Ss. 24 and 23(2) of the Act stand on different footings, different rights and liability flow from S. 24, but no such rights and liabilities flow from S. 23(2) of the Act and precisely that is the reason why in so many judgments when the spouse against whom an order under S. 24 of the Act 14 passed, fails to comply with that order, his or her defence is struck off and the matrimonial cause is thereafter decided. To my mind the aims, object, reasons and the scheme of the Act do not envisage the type of situation created and the type of order passed by the matrimonial Court on May 13, 1992.
23. In Parkash Chander v. Raj Kumar, (1987) 2 Hindu LR 237, Madhya Pradesh High Court had an occasion to consider somewhat similar facts. In that case' the petitioner filed civil suit for dissolution of his marriage. The case was adjourned for reconciliation under S. 23(2) of the Act. On the said date the petitioner's counsel did put in appearance but the petitioner remained absent. The petitioner's learned counsel stated at the Bar that the Court might proceed on the basis that the petitioner is not willing for any reconciliation. In such circumstances, the learned District Judge dismissed the petition on the ground that the petitioner did not cooperate with the Court in the performance of its necessary duty relating to reconciliation. A single Bench of Madhya Pradesh High Court held that such a dismissal of the petition is not warranted by law and, therefore, the order was set aside.
24. In Kalavati Narbheran Panchal v. Shamaldas Punjalal Panchal, 1984 Hindu LR 40, the High Court set aside the decree of divorce as in that case the matrimonial Judge refused to grant second adjournment to the wife-Advocate at the stage of reconciliation and thereafter he recorded husband's evidence and granted decree of divorce. The Gujarat High Court held that the trial Court should have made endeavour to bring about reconciliation between the parties and if an attempt to reconciliation had failed, then the wife should have been given adequate opportunity to file written statement and put her case effectively. The High Court observed that that has resulted in miscarriage of justice.
25. Thus, in my considered view, the lower Court fell into an error in striking down the appellant-husband's defence on May 13, 1992, and, thereafter without framing issues and without giving an opportunity to the appellant-husband to adduce his evidence, he recorded the evidence of respondent-wife on July 18, 1992, and in unwarranted hot haste decided the divorce petition in her favour.
26. Resultantly, appeal is hereby allowed; trial Court's judgment and decree are set aside; case is remanded to the trial Court to frame issues on the basis of pleadings on record and decide it in accordance with law.
27. Appeal allowed.
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