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1992 Supreme(MP) 565
IN THE HIGH COURT OF MADHYA PRADESH
Shacheendra Dwivedi, J.
Jagdish Chandra Kulshrestha
Vs.
Smt. Pramod Kumari
C. R. No. 92 of 1991 (G.)
Decided On: 06.09.1992
For Appellant/Petitioner/Plaintiff:Mr. P.D. Agrawal, Advocate
For Respondents/Defendant:Mr. Anil Mishra, Advocate
The provision of Section 23(2) of the Hindu Marriage Act, which requires the court to make every endeavor to bring about a reconciliation between the parties before granting any relief, is mandatory and not merely directory.
Headnote:
HINDU MARRIAGE ACT - SECTION 23(2) - MAINTENANCE PENDENTE LITE - RECONCILIATION - MANDATORY PROVISION - COURT'S DUTY TO MAKE EFFORTS FOR RECONCILIATION BEFORE GRANTING RELIEF.
Fact of the Case:
Petitioner-husband filed for divorce against the non-petitioner wife under Section 13 of the Hindu Marriage Act on grounds of cruelty and desertion. The non-petitioner wife filed an application under Section 24 of the Act claiming expenses of litigation and maintenance pendente lite. The trial court granted the expenses and maintenance without making any attempt at reconciliation between the parties.
Finding of the Court:
The court held that the provision of Section 23(2) of the Hindu Marriage Act, which requires the court to make every endeavor to bring about a reconciliation between the parties before granting any relief, is mandatory and not merely directory. The court further held that the reconciliation proceedings should be held at the initial stage of the case, before any relief is granted, but the court can also make such efforts at any subsequent stage if circumstances are propitious.
Issues: Whether the provision of Section 23(2) of the Hindu Marriage Act is mandatory and whether the endeavor at reconciliation is to be made initially or can be held at any subsequent stage of proceedings.
Ratio Decidendi: The court interpreted Section 23(2) of the Hindu Marriage Act in light of the dominant purpose of the Act, which is to preserve the marriage relationship and promote public policy. The court held that the provision is mandatory and imposes a duty on the court to make all reasonable efforts to prevent the disruption of marriage. The court also held that the reconciliation proceedings should be held at the initial stage of the case, before any relief is granted, but the court can also make such efforts at any subsequent stage if circumstances are propitious.
Final Decision: The court allowed the revision petition, set aside the impugned order, and directed the trial court to first make a serious endeavor at reconciliation between the parties and then proceed with the case of granting any relief according to law.
Shacheendra Dwivedi, J.
1. This revision is directed against the order passed on an application under section 24 of the Hindu Marriage Act granting Rs. 500/- towards the expenses of the litigation and Rs. 200/- p.m. as maintenance to the non-petitioner during the pendency of the suit, filed by petitioner-husband for divorce against the non-petitioner wife, in the Court of District Judge, Shivpuri.
2. The facts relevant to this revision are that the petitioner filed a petition against the non-petitioner-wife for divorce under section 13 of the Hindu Marriage Act (referred to as 'the Act' hereinafter) on the ground of cruelty and desertion. That earlier to the filing of this petition, the non-petitioner had filed an application under section 125 of the Code of Criminal Procedure (referred to as 'the Code' hereinafter) against the petitioner for claiming maintenance to herself and two daughters born out of the wedlock, wherein the learned Magistrate allowed the maintenance only to two minor daughters but dismissed the claim of the non-petitioner on the ground that she was living separately under own will and that too without a reasonable cause.
3. Now, in these proceedings for divorce, filed by the petitioner, the non-petitioner filed an application under section 24 of the Act claiming the expenses of litigation, and also the maintenance pendente lite. By the impugned order, the learned trial Court allowed the expenses and maintenance as stated above. Admittedly, in the instant case, no attempt was made by the Court to bring about reconciliation between the spouse, before granting the above relief by passing the impugned order.
4. Shri P. D. Agrawal, counsel appearing for the petitioner submitted that the learned trial Court erred in law in passing the impugned order without first complying with the mandatory requirement of making an endeavour of reconciliation between the parties under section 23 (2) of the Act.
5. Shri Anil Mishra, Advocate appearing for the non-petitioner has supported the impugned order by submitting that the provision of section 23 (2) are merely directory and not mandatory and the non-compliance of the provision do not render the impugned order 'bad in law'. He has further submitted that the reconciliation proceedings could be held by the Court at any time during the pendency of the proceedings and it was not necessary to do so in the begining itself.
6. The questions posed for consideration therefore, are whether the provision of Section 23 (2) of the Act is mandatory and whether the endeavour at reconciliation is to be made initially or can be held at any subsequent stage of proceedings.
7. Hindu Law, not it is generally agreed has the most' ancient pedegree of known system of jurisprudence. Marriage, according to Hindu Law has been a holy union, not a contract but a sacrament. Divorce, had not been known to general Hindu Law. Hindu point of view of marriage, earlier to codification, created a tie in between the husband and wife which was indissoluble, but at times, that resulted in extreme tragedy to one due to the other party being seriously handicapped. Now by enacting the Hindu Marriage Act, only in appropriate cases, the provision for dissolution of marriage has been made. Therefore, while dealing a case under the 'Act' and for construing its provisions if the situation so arises, regard must be had to the Hindu idealogy and thinking. Any construction put to the provisions, divorced from the Hindu philosophy would be defeating the purpose of codifying the uncodified Hindu Law, particularly the 'marriage' an institution which has existed on the sanctity of Hindu society. In Mulla's Book, "Principles of Hindu Law", in the commentry on Divorce under Hindu Marriage Act, at page 775, in its fifteenth Edition it is commented that:
It is conceded in all jurisdiction that public policy, good morals and the interests of society require that the marriage relation should be surrounded with every safeguard and its
