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1983 DIGILAW 81 (GUJ)

Kalavati Narbheram Panchal v. Shamaldas Punjalal Panchal

1983-04-06

A.P.RAVANI

body1983
JUDGMENT : A.P. Ravani, J. The appellant-original opponent in Hindu Marriage Petition No. 230 of 1978 of the Court of the City Civil Court at Ahmedabad, has filed this appeal against the judgment and decree passed by the learned City Civil Judge, Ahmedabad (5th Court) on September 24, 1979. 2. The respondent original petitioner filed the petition praying that the decree of divorce he granted on the ground that his wife (the appellant herein) is guilty of cruelty. It was alleged by the opponent that the marriage between the parties took place some time in the year 1976, and thereafter the behaviour of the opponent was such that every now and then she picked" up quarrels with himself and with the family members and made the atmosphere of the entire house unhappy. He gave certain particulars with regard to the acts of cruelty in the petition. The appellant-wife was served with a summons and appeared through an advocate. However, it appears from the proceedings of the case that one Mr. K.S. Chaudhari, advocate had appeared on behalf of the appellant on March 13, 1979 and prayed for adjournment for filing written statement. The Court adjourned the case to April 17, 1979. Again on that day the advocate for the opponent asked for time to file written statement and the case was adjourned to April 24, 1979. On that day again a prayer for adjournment was made but the same was rejected by the Court and the proceeding of April 24, 1979 reads as under :- "Opponent's application for time to file written statement-Rejected. Hence the suit is undefended." Thereafter the suit was adjourned to September 6, 1979, and on that day it was adjourned on the ground that the petitioner's advocate was sick. The case was then adjourned to September 14, 1979, and on that day the evidence was recorded, and ultimately, the trial Court after recording the evidence of the petitioner delivered the judgment on September 24, 1979 and granted decree of divorce in favour of the respondent-original petitioner. 3. In matrimonial proceedings it is the bounded duty of the Court rather a duty imposed by the statute, to make endeavour to bring about a reconciliation between the parties. 3. In matrimonial proceedings it is the bounded duty of the Court rather a duty imposed by the statute, to make endeavour to bring about a reconciliation between the parties. Section 23(2) of the Hindu Marriage Act, 1955 read as follows :- "(2) 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 ease, to make every endeavour to bring about a reconciliation between the parties : Provided that nothing contained in this Sub-section shall apply to any proceedings wherein relief is sought on any of the grounds specified in Clause (ii), Clause (iii), Clause (iv), Clause (4), Clause (vi) or Clause (vii) of Sub-section (1) of Section 13." In-this case it is very clear that the petition is based on the ground of cruelty i. e. ground mentioned in Clause (i-a) of Clause (1) of Section 13 of the Hindu Marriage Act, 1955. This is not one of the grounds mentioned in the Proviso to Sub-section (2) of Section 23 of the Hindu Marriage Act. 4. Therefore, in this case the court ought to have made an attempt to bring about reconciliation between the parties. The trial Court ought to have taken into consideration the following facts and circumstances of the case :- (a) the age of both the spouses is comparatively young ; (b) that there is a child born out of the wed-lock ; and (c) that a maintenance application under the provisions of Section 125 of the Code of Criminal Procedure was filed by the appellant- wife and as order is passed in favour of the appellant-wife on September 12, 1978. (See Ex. 20). 5. In view of the aforesaid facts and circumstances, the trial Court ought to have made an attempt to bring about reconciliation between the parties. The trial Court has not given any reason as to why it has not followed this procedure. In serious lacuna and it has resulted into miscarriage of justice. (See Ex. 20). 5. In view of the aforesaid facts and circumstances, the trial Court ought to have made an attempt to bring about reconciliation between the parties. The trial Court has not given any reason as to why it has not followed this procedure. In serious lacuna and it has resulted into miscarriage of justice. Therefore, the judgment and decree passed by the trial Court will have to be reversed and set aside and the matter will have to be remanded back to the trial Court with a direction that the trial Court may call the parties and make an endeavour to bring about reconciliation between the parties and if the attempt or reconciliation fails, then the appellant-wife shall be given adequate opportunity to file her written statement and put her case effectively. Keeping in mind the aforesaid directions, the trial Court shall proceed further with the petition in accordance with law. 6. In the result, the appeal is allowed to the aforesaid extent. The judgment and the decree passed by the trial Court in H. M. P. No. 230 of 1978 is reversed and set aside and the matter is ordered to be remanded to the trial Court for proceeding further in accordance with the directions given here in above. In the facts and circumstances of the case there shall be no order as to costs. Appeal allowed.