CHHOTE LAL Vs. KAMLA DEVI

JUDGEMENT

(1.) The petitioner is the husband, who has instituted a suit in the court below for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. During the pendency of the suit, an application was filed on behalf of the petitioner, requesting the court to make an endeavour at reconciliation between the parties in accordance with the provision of Sub-section (2) of Section 23 of the Act Accordingly, on 4-5-1905 the Court passed an Order directing that the lady, namely. Kamla Devi, should be produced in court so that an endeavour might be made to bring about a reconciliation between the parties. On 8-5-1965, however, an application was filed on behalf of the lady in which it was alleged that she was apprehensive of being molested at the hands of the petitioner and his associates, in case she came out of her father s house for the purpose of going to the court premises, where also she did not feel safe on account of the association of the petitioner with certain young men, who appeared to look like ruffians. In the same petition, it was also alleged that, if any examination of the lady was to be done, that ought to be done at her parent's house where she was living out of her own free will.

(2.) When the matter was taken up by the Court, it was represented on behalf of the lady that she was "prepared to make a statement only if either she may be examined on commission at her parent's residence in Chowk. Patna City, or she may be brought to court under police escort". That apart, the attention of the court was drawn to certain other petitions which were on the record and a submission was made to the court on behalf of the lady by her pleader to the effect that, under no circumstances she was agreeable to any re-conciliation with the petitioner. The attention of the Court was also drawn to the written statement where to it had been averred that the marriage between the parties had already come to an end in accordance with the custom prevailing in the caste of the parties and as such, Section 23 of the Hindu Marriage Act was not applicable. Substantially, upon these grounds, the learned Subordinate Judge came to the conclusion that it did not appear at all useful or necessary to make an attempt for reconciliation between the parties. The learned Subordinate Judge added: "Defendant No. 1 as is stated by her lawyer is absolutely against reconciliation".

(3.) It has been urged by Mr. Sarwar Ali appearing on behalf of the petitioner and. in my opinion, rightly, that the learned Judge has not acted in accordance with the true spirit of the law contained in Sub-section (2) of Section 23 of the Act. The important words in Sub-section (2) are that it shall be the "duty of the court, in the first instance, in every case where it is possible to do so "to make every endeavour" to bring about a reconciliation between the parties. In my Judgment, the law enjoins upon the court a duty to make a sincere effort at reconciliation before proceeding to deal with the case in the usual course. In order that the requirement of making "every endeavour" is fulfilled it is at least requisite that the courts should have a first hand version of the point of view of the lady from her own mouth so that the court might be in a position to appreciate what really has led to the estrangement between the husband and the wife. Merely because the lawyers for the parties submit that it is not possible to have a reconciliation the duty of making every endeavour for bringing about a reconciliation cannot be said to have fulfilled.