@JUDGMENTTAG-ORDER
Shacheendra Dwivedi, J.
This revision is directed against the order passed on an application u/s 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.
The facts relevant to this revision are that the petitioner filed a petition against the non-petitioner-wife for divorce u/s 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 u/s 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.
Now, in these proceedings for divorce, filed by the petitioner, the non-petitioner filed an application u/s 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.
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 u/s 23 (2) of the Act.
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.
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.
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 severance allowed only in the manner and for the cause specified by law. Divorce is not favoured or encouraged, and is permitted only for grave reasons.
Keeping in view the above concept, duty has been cast on the Court itself u/s 23 (2) of the Act to make efforts for saving the marriage and making sincere endeavour to bring about a reconciliation between the parties, before the Court proceeds to grant any relief under the Act. There is no ambiguity and language of the section is self explanatory. When any provision or the statute is to be interpreted, the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithipal Singh Bedi etc. v. Union of India and others (1983) 1 SCR 393, regarding the mode of interpretation, the Hon''ble Supreme Court observed:
The dominant purpose in construing a statute is to ascertain the intention of parliament. One of the well recognised cannons of constructions is that the legislature speaks its mind by use of correct exression and unless there is any ambiguity in the language of the provision the Court should adopt literal constructions if it does not lead to an absurdity.
It would be relevant to reproduce Section 23(2) of the Act, which runs thus:
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.
In my view the provision of Section 23 (2) is mandatory. It confers power of utmost importance coupled with an express duty on Court to make all reasonable efforts to prevent disruption of marriage and thereby, to advance the social obligation and stability and to promote the public policy underlying the provision. The word ''shall'' appearing in this clause, issue a mandate to the Court and can not be taken to leave any discretion, in this regard. The exercise of the power is not only for the benefit of the spouse but also for the their off spring, if any. The provision under to natural construction implicity includes both the reliefs interim and final and can not be circumscribed to final relief only.
Under the provision it was incumbent on the learned trial Court to hold the reconciliation before proceeding to grant the relief u/s 24 of the Act. The provision of Section 23 (2) of the Act aims at making the parties agree on the possible issues. The learned trial Court not being aware of its duty and power under the provision passed the impugned order in a perfunctory manner. An order, granting relief without first complying with the requirement of Section 23 (2) of the Act, is unsustainable in law.
The intention of the provision is undoubtedly to render all possible assistance in the maintenance of the marital bond and if at any stage of the case the circumstances'' are propitious for reconciliation, it would be the Courts duty to make use of such circumstances irrespective of the stage. However, the effort at conciliation is desirable to be made by the Court invoking its good offices, right at the start of the case, but essentially before the Court proceeds to grant any relief, under the Act. The words, "in the first instance" cannot be taken to mean that the Court cannot at all proceed with the case without an endeavour to bring about a reconciliation. It is to be read in context with ''before proceeding to grant any relief and it only denotes that the efforts of reconciliation are to be made before any relief, interim or final is granted by the Court,
If the Court is not inclined to grant any relief, reconciliation would not be necessary. But still, making of an effort by the Court at the initial stage is desirable because what is feasible at the start, at times becomes difficult at the end.
On a material consideration of all the circumstances, I feel, that particularly in the society to which the parties belong, there should always be an effort made by the well wishers of the spouse concerned to bring about conciliation and amity. The Court should always make endeavour to encourage all such attempts, whether by the learned counsels of the parties, or by their relations, or by friends, irrespective of the applicability of sub-section (2) of Section 23 of the Act. In the instant case, since no attempt was made to bring about reconciliation, the impugned order manifestly siffers from legal impediment of non-compliance of Section 23 (2) of the Act.
As a result of the above discussion the revision is allowed, setting aside the impugned order and directing the learned trial Court to first made a serious endeavour at reconciliation between the parties and then proceed with the case of granting any relief according to law. In the circumstances, there will be no order as to costs.
