VERY IMPORTANT POINT
In an appeal under Section 28 of the Hindu Marriage Act, 1955, 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, the High Court was not justified in rejecting the appeal without satisfying itself that the requirement of law had been satisfied.

Headnote:(i) Hindu Marriage Act, 1955-Section 28-Appeal from decree of divorce-Fraud alleged by wife-appellant in getting petition for divorce filed through her when she never wanted a divorce-Circumstances revealed that what she said was prima facie probable-High Court not justified in rejecting appeal without satisfying itself that requirement of law had been satisfied-High Court should not have summarily dismissed the appeal-Order directing appellant to file a separate suit for setting aside decree of divorce on ground of fraud not sustainable.
       Held : A 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. (Para 8)
       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. (Para 12)
       In the 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 seen 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. (Para 14)
       (ii) Hindu Marriage Act, 1955-Sections 13 & 28-Marriage solemnised in 1991-Appellant wife lodged a complaint complaining harassment by her husband-Compromise-Wife s petition for divorce instituted within six weeks of the compromise-Respondent husband did not appear-Ex parte decree of divorce passed-Appeal under Section 28 filed by wife alleging that fraud was perpetrated upon her by her husband in filing divorce petition which she never intended to file-High Court summarily dismissed appeal-Appellant was advised to file a separate suit for setting aside decree on ground of fraud-Appeal against-Allowed-Impugned judgment of High Court as well as that of District Judge set aside-Matter to go back to District Judge.
       Held : 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 if 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. (Para 13)
       (iii) FAMILY COURTS-Objects and Reasons of Family Courts Act, 1984-Where Family Courts not functioning-Objects and principles underlying constitution of these courts can be kept in view by civil courts trying matrimonial cases. (Paras 8 to 10)

JUDGMENT

D.P. Wadhwa, J.-Leave granted.

2. Appellant-wife 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 maternal 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 following order :

"Neither any ground for condoning the delay of 263 days is made out nor there is 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 Court.

The application as well as the appeal is dismissed."

3. 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. Appellant on May 22, 1995 lodged a complaint with the Senior Superintendent of Police complaining harassment by the respondent in connivance with his parents. 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 :

"Sh. 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. Since 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 statement:

"Statement 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 proble

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