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1994 Supreme(MP) 949
High Court Of Madhya Pradesh
U. L. BHAT, TEJ SHANKAR
DHARMENDRA KUMAR - Appellant
Versus
PUSHPA DEVI - Respondents
CRIMINAL REVISION 189 Of 1994
Decided On : 11/26/1994
B.D.Jain, R.N.SHARMA
The requirement of Section 23(2) of the Hindu Marriage Act, 1955 to endeavour reconciliation before granting relief is not mandatory and failure to do so does not render the order illegal or without jurisdiction.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 23(2), 24 - INTERIM MAINTENANCE - RECONCILIATION - COURT'S DUTY TO ENDEAVOUR RECONCILIATION BEFORE GRANTING RELIEF - NOT MANDATORY - FAILURE TO DO SO DOES NOT RENDER ORDER ILLEGAL OR WITHOUT JURISDICTION.
Fact of the Case:
Husband filed an application under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of cruelty and desertion. Wife filed an application under Section 24 of the Act seeking interim maintenance and provision for expenses. The lower court allowed the application and directed the husband to pay interim maintenance and litigation expenses. Husband challenged the order, arguing that the lower court had no jurisdiction to pass an order under Section 24 without first making an effort for reconciliation under Section 23(2) of the Act.
Finding of the Court:
The court held that the requirement of Section 23(2) to endeavour reconciliation before granting relief is not mandatory and failure to do so does not render the order illegal or without jurisdiction. The court further held that Section 24, which provides for interim maintenance and expenses, is not controlled by Section 23(2) and can be granted even before an attempt at reconciliation is made.
Issues: Whether the requirement of Section 23(2) of the Hindu Marriage Act, 1955 to endeavour reconciliation before granting relief is mandatory.
Ratio Decidendi: The court interpreted Section 23(2) of the Hindu Marriage Act, 1955 and held that the requirement to endeavour reconciliation before granting relief is not absolute and is subject to the qualification "where it is possible so to do consistently with the nature and circumstances of the case." The court also held that Section 24, which provides for interim maintenance and expenses, is not controlled by Section 23(2) and can be granted even before an attempt at reconciliation is made.
Final Decision: The court dismissed the revision petition, holding that the failure of the lower court to endeavour to bring about reconciliation of parties before passing an order under Section 24 does not make the order illegal or without jurisdiction.
( 2 ) LEARNED counsel for the revision petitioner submitted that he is not challenging the quantum of the award of the right of wife to make such a claim and he is confining his arguments only to one aspect, namely that since the lower Court did not make any effort for reconciliation under S. 23 (2) of the Act, it had no jurisdiction to pass an order under S. 24. Learned counsel relied on a decision of a learned single Judge of this Court in Jagdish Chandra Kulshrestha v. Pramod Kumari (1993 (1) MPJR 455) holding that the requirement in S. 23 (2) is mandatory and no relief, interim or final, can be granted by the Court without endeavouring reconciliation between the spouses.
( 3 ) IN Jagdishchandra Kulshrestha's case, the learned Judge sought to understand the provisions of S. 23 (2) of the Act keeping in view the Hindu point of view of marriage being indissolvable sacrament. The learned Judge took the view that there is no ambiguity in the provision which is mandatory and if this mandatory provision requiring endeavour to be made to bring about reconciliation is not followed, order granting relief under S. 24 is without jurisdiction and is liable to be set aside. The learned Judge also understood the words 'before the Court proceeds to grant any relief under the Act' occurring in S. 23 (2) as taking in relief under S. 24 also. The attention of the learned Judge was not drawn to the observation of Sohani, J. (as he then was) in Gopal v. Dhapubai (C. R. No. 348 of 1983) reported in 1986 (2) MPWN (N) 76 to the effect that "s. 24 of the Act is not controlled by S. 23 of the Act. "( 4 ) THE Act, as indicated in the Preamble, is intended to amend and codify the law relating to marriage among Hindus. Some of the provisions of the Act have altered and modified several aspects of Hindu Law relating to marriage. Section 4 confers overriding effect to the provisions of the Act over any rule of Hindu Law or custom or usage. The Act confers right to seek restitution of conjugal rights, judicial separation, declaration of nullity of marriage, and dissolution of marriage, rights which are almost novel in character and unknown to pristine Hindu Law. The Act was subsequently amended to provide even for divorce by mutual consent. At the same time, the legislature took care to discourage spouses from rushing to Court and to encourage reconciliation to preserve the marital relationship. Section 14 bars entertainment by Court of any petition for dissolution of marriage by a decree of divorce unless the petition is presented after the lapse of a particular period after the marriage. Sub-section (1) of S. 23 prescribes conditions for grant of decree. Sub-section (2) of S. 23 enjoins the Court to endeavour to bring about reconciliation.
( 5 ) SUB-SECTION (2) of Section 23 reads as under :"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. "this statutory provision has been introduced to preserve the marriage for the benefit of the spouses, the offs
