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1997 Supreme(Ori) 298
IN THE HIGH COURT OF ORISSA
D.M. Patnaik, J.
ANITA AGRAWALA - APPELLANT
Versus
SANTOSH KUMAR MOHANTY - RESPONDENT
Civil Revision No. 22 of 1997
Decided On : 17-03-1997
P. Palit, for the Appellant; Ashok Mohanty, for the Respondent
The Court has a duty to make an endeavour for settlement in matrimonial cases, but this duty is not absolute and is subject to certain conditions precedent, including the Court's satisfaction that there is a reasonable possibility of settlement.
Headnote:
FAMILY COURT - RECONCILIATION - SECTION 9 OF THE FAMILY COURTS ACT - INTERPRETATION - COURT'S DUTY TO MAKE AN ENDEAVOUR FOR SETTLEMENT - CONDITIONS PRECEDENT - REASONABLE POSSIBILITY OF SETTLEMENT - COURT'S SATISFACTION - PROCEDURE - RULES FRAMED BY HIGH COURT.
Fact of the Case:
The petitioner, a wife, challenged the order of the Family Court directing reconciliation between her and her husband, despite her written objection. The petitioner contended that the marriage was void due to fraud and misrepresentation, and that the Court could not force reconciliation in such a case. The opposite party, the husband, argued that the provisions of Section 9 of the Family Courts Act were mandatory and that the Court was obligated to make an effort for reconciliation, regardless of the nature of the marriage.
Finding of the Court:
The Court held that the provisions of Section 9 of the Family Courts Act were not mandatory, but rather imposed an onerous duty on the Court to make a sincere endeavour for settlement to save the estranged couple from breaking away from each other. The Court further held that the duty to make an endeavour for settlement existed irrespective of the nature of the case, whether voidable or not, whether a written statement was filed or not, and irrespective of the stage of the proceeding.
Issues: 1. Whether the provisions of Section 9 of the Family Courts Act are mandatory or directory? 2. Whether the Court can direct reconciliation in a case where the marriage is challenged as void due to fraud and misrepresentation? 3. What are the conditions precedent for the Court to make an endeavour for settlement under Section 9 of the Family Courts Act?
Ratio Decidendi: 1. The provisions of Section 9 of the Family Courts Act are neither mandatory nor directory, but rather impose an onerous duty on the Court to make a sincere endeavour for settlement to save the estranged couple from breaking away from each other. 2. The Court can direct reconciliation in a case where the marriage is challenged as void due to fraud and misrepresentation, but only if the Court is satisfied that there is a reasonable possibility of settlement. 3. The conditions precedent for the Court to make an endeavour for settlement under Section 9 of the Family Courts Act are: - The Court must be satisfied that there is a reasonable possibility of settlement. - The Court must ascertain the respective cases of the parties from pleadings, documents, or other materials on the record, or by calling both parties for the purpose.
Final Decision: The Court set aside the impugned order of the Family Court and remitted the case back to the Family Court. The Family Court was directed to call both parties to appear in person in camera and ascertain from them whether there was any reasonable possibility of a settlement between the two. Only then could the Court send them to the counselling centre for reconciliation as per rules.
JUDGMENT :
D.M. Patnaik, J. - This revision is disposed of at the admission stage. The short question for decision is, whether the Judge, Family Court, Cuttack was correct in directing a reconciliation between the husband and the wife in spite of the written objection of the wife to the same.
2. It is not disputed that the petitioner and the opposite party had a registration marriage on 31-8-1 9-. While it is the case of the wife that such a marriage was solemnised on false representation/fraud practised on her by the opposite party, it is the case of the opposite party that the marriage is a valid one and there was no question of fraud or misrepresentation as alleged by the petitioner. Wife's further case is, when the matter before the Family Court was ripe for hearing, the opposite party filed a petition on 20-8-1996 for a reconciliation and this being allowed by the Court in spite of her objection, the order is illegal.
3. Mr. Palit, learned counsel for the petitioner strenuously urged that once the wife challenges the marriage as a nuliity on the ground of fraud and/or misrepresentation, farcing the parties for reconciliation is against the requirement of Section 9 of the Family Courts Act as well as the settled principles of law.
It was next contended that before directing the parties to the 'reconciliation cell' the Court should have been first satisfied as to the existence of a reasonable possibility of settlement between the parties and according to the learned counsel, under no circumstance such a direction could have been given when the wife objected to this in writing.
Mr. Ashok Mohanty, learned counsel for the opposite party, on the other hand, submitted that the language of Section 9 of Family Courts Act which is pari materia with that of the language used in Section 23(2) of the Hindu Marriage Act makes it obligatory on the part of the Court to make an endeavour for a reconciliation and, according to him, under no circumstance it would depend on a question whether the marriage is a void or voidable one. It was therefore argued that, in the present case the Court having made a sincere effort to bring about a settlement between the parties has not committed any error or illegality.
The rival contentions of the learned counsels for the parties need examination.
4. Let me first deal with the view of the learned Judge, Family Court that the provisions of Section 9 is 'mandatory'. The same is expressed by stating that it is a 'statutory mandate'.
The law is well-settled that question as to whether a statute is mandatory or directory depends upon intent of the Legislature and not on the language in which the intent is clothed. The meaning and the intention of the Legislature must govern and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, design and the consequences which would follow from construing it the one way or the other (vide decisions reported in State of U.P. Vs. Manbodhan Lal Srivastava, and AIR 989 SC 2206, Vali Pero v. Fernandeo Lopez and Ors.).
It is also equally well-settled that if the provision is mandatory, any act done in breach thereof would be invalid, out if it is directory, the act would not be invalid although non-compliance may give rise to some other penalty if provided by the statute (vide decisions reported in Rani Drig Raj Kuer Vs. Raja Sri Amar Krishna Narain Singh, and Rubber House Vs. Excellsior Needle Industries Pvt. Ltd., ).
It is clear from the decision in the case of Tanima Mishra Vs. Pradeep Kumar Patnaik, (referred to by both the counsels) approving the proposition laid down in the case of Sk. Salam Vs. Sant Singh and another, that non-compliance of the provisions of Section 23(2) of the Hindu Marriage Act would not make a decree under the Act nullity. That apart, the provisions of Section 9 of the Family Courts Act which is in pari materia with that of the provisions of Section 23(2) of the Hindu Marriage Act do not prescribe the
