TANIMA MISHRA Vs. PRADEEP KUMAR PATNAIK

JUDGEMENT

(1.) Petitioner assails correctness of an order passed by the learned District Judge, Cuttack, directing her and opposite party to appear in person to explore possibilities of a settlement in terms of Rule 3 of Order 32-A of the Code of Civil Procedure, 1908 (in short 'the Code').

(2.) . Background facts are that a suit has been filed by the petitioner for a declaration that her marriage with opposite party was a nullity and/or void, and was at the relevant time, pending adjudication before the learned District Judge, Cuttack. According to the petitioner, marriage solemnized on 2-2-1988 was a nullity or void ab initio since the opposite party had not completed 21 years of age on the said date. By order dated 7-4-1990, Court had directed personal appearance of parties concerned on 25-4-1990 for heating in terms of Order 10 of the Code. Such direction was given on the basis of a prayer made by the petitioner. On the date fixed, the learned counsel for petitioner prayed that personal appearance of petitioner may be dispensed with and service of her counsel may be utilised as permitted by Order 10, Rule 1. It was submitted that the petitioner had denied allegations made in the written statement in respect of certain particular assertions and therefore, her presence was not necessary. Counsel for opposite party objected to the aforesaid motion and submitted that there are certain facts which cannot be ascertained from the advocate of the petitioner, and he was not competent to answer such questions that may arise during the course of hearing under Order 10. Elaborating, it was submitted that he petitioner had participated in certain acts which she alone can effectively answer as the same were within her special knowledge and therefore, her personal appearance cannot be dispensed with. The learned District Judge was of the view that the provisions of Rule 1, Order 10 cannot be passed into service in a case of this nature. He was further of the view that in terms of sub-rules (1), (2)(a) of Rule 1 and Rule 3 of Order 32-A, in a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of subject-matter of the suit. He accordingly held that such a reconciliation cannot be made in absence of petitioner herself. Therefore, the prayer to dispense with personal appearance of the petitioner was rejected. Both parties were directed to appear in person. This direction is the subject-matter of impugn in this revision application.

(3.) According to the learned counsel for the petitioner, when validity and legality of marriage itself is being questioned on the ground that it is void and a nullity, and attempt for reconciliation shall be an exercise in futility. According to him, a reconciliation cannot give any validity on an invalid or void marriage. The learned counsel for the opposite party, however, submits that until the marriage is declared to be void, the same has trappings of a valid marriage and statutory mandate to attempt reconciliation in the first instance cannot be given a go by.