Manju Roy vs Ghanshyam and Another

Dharampal Sinha, J.—Heard learned Counsel for both sides.

In this revision petition, the Petitioner Manju Roy, has assailed the order dated 12.3.1996 passed by the 2nd Additional District Judge, Saharsa, in Misc. Case No. 7 of 1994 which had been instituted on the basis of an application which opposite party No. 1 had filed u/s 9 of the Hindu Marriage Act, 1955 (''the Act") praying for restitution of conjugal right. By the impugned order, the learned court below had asked the parties to appear before the court below on 27.3.1996 for reconciliation. There was also specific direction to both the parties to appear personally.

Learned Counsel for the Petitioner has contended that in this case the Petitioner had taken a stand that she is not married to Opposite party No. 1, who had filed the application u/s 9 of the Act; that she is the wife of one Vijay Kumar Roy; and that even prior to the filling of the application u/s 9 of the Act by opposite party No. 1, she had instituted some cases including case for maintenance and criminal case against her husband Vijay Kumar Roy. According to her, in view of the stand taken by the Petitioner and in view of the objection raised by her that she is not the wife of Ghanshyarn (Opp. party No. 1), there could be no question of reconciliation and the learned Additional District Judge has committed material Irregularity in asking the Petitioner by the Impugned order to personally appear before that court for reconciliation.

On the other hand, the learned Counsel for Opposite party No. 1 contended that the Petitioner is the wife of Opposite party No. 1-Ghanshyam as is the stand taken by Opposite party No. 1 and the question whether or not she is the wife of Ghanshyam will be determined only after the finding will be arrived at on the basis of the evidence which the parties will adduce. According to the learned Counsel for Opp. party No. 1, before the Additional District Judge himself, the Petitioner may take the stand that as she is not his wife, she is not aggreeable to reconciliation.

I have considered carefully the submissions and I am inclined to agree with the contention of the learned Counsel for the Petitioner for the reason that is being indicated below.

The impugned order obviously seems to have been passed under the provisions of Sub-section (2) of Section 23 of the Act with reads as follows:

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:

Provided that nothing contained in this Sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clause (ii), Clause (iii), Clause (iv), Clause (v), Clause (vi) or Clause (vii) of Sub-section (1) of Section 13.

This provision imposes a duty of the Court considering any matrimonial matter under the Act to make endeavour for bringing out reconciliation between the parites. The expression, "it shall be the duty of the court in the first instance, in every case" used in Section 23(2) of the Act would indicate that it is mandatory obligation imposed by this law to make effort tip bring about conciliation between the parties. But the further expression "where it is possible to do so consistently with the nature and circumstances of the case" appears to restrict the mandatory obligation only to such cases where it is possible to bring about reconciliation "consi''stenly with the nature and circumstances of the case". It seems to me that the nature and circumstances of this case is such as there is no possibility at all of any reconciliation and there is no scope of doing this exercise of making endeavour to bring about the reconciliation between the parties. Indeed it will be a futile exercise and the law as contained in Section 23(2) of the Act does not impose duty to undertake any futile exercise.

It is an admitted position in this case that the Petitioner had already filed her written statement in the Miscellaneous case which the Opposite party No. 1 has instituted u/s 9 of the Act and in her written statement she had already taken a stand that she is not married to him (Opposite party No. 1), but to one Vijay Kumar Roy. It is also not disputed that she had raised objection and prayed that at first there should be a decision by the trial court of the issue as to whether or not there was relationship between her and Opposite party No. 1 as wife and husband. In view of such stand taken it is obvious that the facts and circumstances of the case did not leave scope for any conciliation and so it is a case of such nature in which it is not possible at all to bring about conciliation. In cases arising out of an application u/s 9 of the Act praying for restitution of conjugal rights if the other party denies firmly the marriage with the applicant, I do not think that there remains any scope for reconciliation and any effort for reconciliation made is bound to go in vain.

So in this view of the matter, I am inclined to hold that the learned court below has committed material irregularity in exercise of jurisdiction in passing the impugned order directing the Petitioner to be present personally for reconciliation in a case of this nature in which possibilities of reconciliation is completely ruled out.

I, accordingly, allow this revision petition and set aside the impugned order and direct the learned court below to proceed and dispose of the Miscellaneous case according to law, without making any endeavour for bringing about reconciliation between the Petitioner and Opposite party No. 1.