IMPORTANT POINTS
1. In divorce proceedings, the Matrimonial Court can ask a party to the proceeding (husband or wife) to remain personally present even by issuance of non-bailable warrants.
2. In divorce proceedings, a Court is expected, nay, bound, to make all attempts and endeavours of reconciliation.

Headnote:(i) Hindu Marriage Act, 1955—Sections 13(1) and 23(2)—Divorce petition —Issuance of Non Bailable Warrants to secure presence of husband who was in Italy—Whether Court has jurisdiction to pass such order—(Yes)—Apprehension of husband that he would be arrested on coming to India—Interim relief granted by the Supreme Court staying order of the High Court issuing non bailable warrant against the husband—If, in spite of protection granted by this Court, husband flouts the order passed by the Court, he cannot claim as of right the equitable relief from the Supreme Court—Constitution of India —Article 136.
       Held : 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.(Para 24)
       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.(Para 25)
       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.(Para 26)
       (ii) Hindu Marriage Act, 1955—Sections 13 and 23—Divorce petition—Duty of Court to make sincere endeavour at reconciliation—Jurisdiction of High Court to issue direction to husband to remain personally present in court—Court has power to pass such an order.
       Held : 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.(Para 11)
       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.(Para 14)
       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.(Para 22)
       (iii) Hindu Marriage Act, 1955—Sections 13 and 23—Divorce petition—Territorial jurisdiction of Court—Marriage of parties was solemnised at Barnala, District Sangrur, Punjab—Husband went to Brunei, Darusslame where wife also joined him—Wife came back to India as relations between them became strained—She filed a petition for divorce on ground of desertion and cruelty in the Court of District Judge, Faridkot, Punjab—Appellant-husband, through his power of attorney filed objection challenging territorial jurisdiction of Faridkot Court—District Judge held that Court at Faridkot had no jurisdiction to entertain and decide the petition—Court however went into merits of the matter and held that husband neither treated the wife with equality nor deserted her—Whether Court was justified in dismissing divorce petition on merits without following procedure u/s 23(2) of the Act—(No).
       Held : 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.(Para 23)

JUDGMENT

C.K. Thakker, J.—Leave granted.

2. 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.

3. 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.

4. 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.

5. 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, Italy”.

Hence, the present appeal by special leave.

6. 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.

7. 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-appeara

Click Here to Read the rest of this document

2007 Supreme(SC) 175

Cases Referred (1)