ANITA AGRAWALA Vs. SANTOSH KUMAR MOHANTY

JUDGEMENT

(1.) This revision is disposed of at the admission stage. The short question for decision is, whether the Judge, Family Court, Cuttack was correct in directing a reconciliation between the husband and the wife inspite of the written objection of the wife to the same.

(2.) IT is not disputed that the petitioner and the opposite party had a registration marriage on 31.8.1995. While it is the case of the wife that such a marriage was solemnised on false representation/fraud practised on her by the opposite party, it is the case of the opposite party that the marriage is a valid one and there was no question of fraud or misrepresentation as alleged by the petitioner. Wife's further case is, when the matter before the Family Court was ripe for hearing, the opposite party filed a petition on 20.6.1996 for a reconciliation and this being allowed by the Court inspite of her objection, the order is illegal.

(3.) LET me first deal with the view of the learned Judge, Family Court that the provisions of Section 9 is 'mandatory'. The same is expressed by stating that it is a 'statutory mandate'. - - - - The law is well settled that question as to whether a statute is mandatory or directory depends upon intent of the legislature and not on the language in which the intent is clothed. The meaning and the intention of the legislature must govern, and these are to be ascertained not only from the phrasiology of the provision, but also by considering its nature, design and the consequences which would follow from construing it the one way or the other {vide decisions reported in A.I.R. 1957 S.C. 912, State of U.P. v. Manbodhan Lal Srivastava and A.I.R. 1989 S.C. 2206, Vali Pero v. Fernandeo Lopez & Ors.). It is also equally well settled that if the provision is mandatory, any act done in breach thereof would be invalid, but if it is directory, the act would not be invalid although non -compliance may give rise to some other penalty if provided by the statute (vide decisions reported in A.I.R. 1960 S.C. 444, Rani Drigraj Kuer v. Raja Sri Amur Krishna Narain Singh and A.I.R. 1989 S.C. 1160, M/s. Rubber House v. M/s. Excellsior Needle Industries Pvt. Ltd.). It is clear from the decision in the case of Tanima Mishra v. Pradeep Kumar Patnaik, A.I.R. 1992 Orissa 178=II (1991) DMC 424, (referred to by both the Counsels) approving the proposition laid down in the case of Sk. Salam v. Sant Singh, A.I.R. 1990 Calcutta 315=I (1991) DMC 371, that non -compliance of the provisions of Section 23(2) of the Hindu Marriage Act would not make a decree under the Act nullity. That apart, the provisions of Section 9 of the Family Courts Act which is in part materia with that of the provisions of Section 23(2) of the Hindu Marriage Act do not prescribe the consequences for non -compliance of those provisions of the section for reconciliation. Therefore, it cannot be said that the provisions of Section 9 of the Family Courts Act is mandatory. No doubt in the decision of this High Court in the case of Anupama Mishra v. Bhagaban Mishra, A.I.R. 1972 Orissa 163 and Anr. decision of the Delhi High Court in the case of Smt. Manju Singh v. Ajay Bir Singh, A.I.R. 1986 Delhi 420, the provisions of Section 23(2) of the Hindu Marriage Act has been held to be mandatory. But I am unable to concur with the view since in these decisions no reason has been assigned as to how they are mandatory and secondly the proposition laid down by the Apex Court referred to above has not been taken note of. Rather, I would like to subscribe the view taken in the case of Dilipbhai Chhaganlal Patel v. State of Maharashtra, A.I.R. 1983 Bombay 128, which holds that the rule is not absolute but a duty is cast on the Court to make an endeavour for settlement. Nor the same can also be said to be directory because of what has been held by the Supreme Court in the case of Rani Drigraj Kuer (supra). In para 21 of the judgment the Court has held as follows : 'A provision giving discretionary power leaves donee of the power free to use or not to use it at his discretion. The directory provision however gives no discretionary power to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity.' In those cases where the Family Court does not direct parties for reconciliation, the ultimate decision of the Court either way is not rendered invalid for non - compliance of the provisions of Section 9 of the Act. Therefore, I am of the view that the provision is neither 'mandatory' nor directory but casts an onerous duty on the Court to make a sincere endeavour for settlement to save the estranged couple breaking away from the company of each other.