Reconciliation attempt is a must before passing any order under the Hindu Marriage Act, 1955.

( 1 ) THIS appeal is directed against the judgement and decree dated 22nd August, 2003 passed by the learned Additional District judge 2nd Court at Nadia on Mat. Suit No. 250 of 1999. The plaintiff/husband filed the suit praying for a decree of divorce on the ground of cruelty and desertion. The petitioner alleged that he was married with the respondent on 13. 03. 1989 and after marriage the respondent lived together with the petitioner as husband-wife till 08. 09. 1991. A daughter named Shelly was born out of the said wedlock on 03. 11. 1990. After several months dispute started and on 08. 09. 1991 the respondent/wife left the matrimonial home. The wife left the house voluntarily and did not return. She filed maintenance case under section 125 Cr. PC. She also filed criminal complaint under section 498a of IPC and ultimately the said case being G. D. 521/92 under section 498a was heard and disposed of and all the accused persons were acquitted. The petitioner, however, have been paying maintenance in terms of the order passed under section 125 Cr. PC. The learned Trial Judge granted decree of divorce on 22nd August, 2003. The suit was allowed on contest.

( 2 ) THE learned Counsel for the appellant submits that the husband has preferred this appeal basically on the ground that the learned Trial Judge misread the evidence and misconstrued the ratio of the judgement reported in 1993 Vol. (1) CHN, 213 and AIR 1985 Delhi 221.

( 3 ) THE learned Counsel submitted mainly on two points - one is cruelty has not been proved and desertion has also not been proved and the reconciliation attempt, which is a must was not done in this case. The learned counsel argued that had there been any attempt to reconcile, the matter could have been reconciled but the learned Trial Judge fixed different dates for conciliation but did not make any attempt for conciliation.

( 4 ) THE learned Counsel drew attention of this Court on the ordersheets in Order No. 3 dated 18. 12. 1999. There is order "fixing 4. 4. 2000 for reconciliation". Then again on 04. 04. 2000 the order is "fixing 10. 7. 2000 for reconciliation and hearing. " Then again on 10. 07. 2000 the order is "adjourned for reconciliation". On 18. 09. 2000 the order is "for reconciliation and hearing. " the learned Counsel submitted that several dates were fixed but actually the reconciliation attempt did not take place.

( 5 ) THE learned Counsel also drew attention of this Court to the examination-in-chief of P. W1. Shibani Dutta/wife done through affidavit. In the said affidavit in paragraph 15 Shibani Dutta has said "i do not want divorce. I want to stay with my husband alongwith my daughter. " This paragraph has been verified as true to the best of knowledge.

( 6 ) THE learned Counsel then relied on the evidence of Shibani Dutta in cross-examination where she said "i cannot say whether it is not possible for my husband to live with me but I am willing to live with him. "

( 7 ) THE learned Counsel then relied on Order 32a Rules 1 and 3 and submitted that Order 32a Rule 3 provides that it is the duty of Court to make efforts for settlement. The learned Counsel also relied on section 23 sub-section (2) of Hindu Marriage Act and submitted that here also it has been provided that reconciliation attempt must be made before proceedings to grant any relief under this Act.

( 8 ) THE learned Counsel then attacked the impugned judgement on the score that cruelty has not been proved on the contrary the husband tried to take advantage of his own wrong. The learned Counsel referred to the deposition of the husband Bimal Dutta where he has said "i have got an illicit relation with Sadhana Das" and "husband of Sadhana Das committed suicide due to my mixing with Sadhana Das. " The learned Counsel submitted that this is the mental torture committed by the husband on the wife/appellant but the learned Trial Judge allowed the husband/respondent to take advantage of his own wrong. The l