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1991 DIGILAW 243 (ORI)

TANIMA MISHRA v. PRADEEP KUMAR PATNAIK

1991-07-08

ARIJIT PASAYAT

body1991
ARIJIT PASAYAT, J. ( 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. 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. ( 4 ) A very interesting point arises for consideration in this case. Order 32-A deals with suits relating to matters concerning the family. Clause (a) of sub-rule (2) of Rule 1 of Order 31-A deals with 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. Rule 3 mandates that in every suit or proceeding to which this Order applies, 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 the subject-matter of the suit. Rule 3 mandates that in every suit or proceeding to which this Order applies, 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 the subject-matter of the suit. Rules 2 to 5 of Order 32-A are essentially procedural in nature, empowering the Court to hold in camera proceedings and obliging it to attempt settlement and ascertain the facts and seek assistance of a welfare expert. Section 24 of the Special Marriage Act, 1954 (in short 'the Act') which acceptedly applies to the facts of the case inter alia provides that if any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 had not been fulfilled, or the respondent was impotent at the time of marriage and at the time of the institution of the suit, on a petition presented by either party to a marriage, against the other party, marriage is to be declared as a nullity by a decree. If an action is void, no declaration is necessary, but so far as marriages are concerned it is open to a party to seek for a declaration by a decree of nullity. A void marriage, as observed by Lord Gresene M. R. in De Renaville v. De Renaville, 1948 AC page 100, is one that will be regarded by every Court in any case in which the existence of the marriage is in issue on never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it; a voidable marriage is one that will be regarded by every Court as a valid subsisting marriage until a decree annulling it has been pronounce by a competent Court. Lord Morris of Boryth-YGest in Ross v. Ross, (1963) AC 280, stated that the expression 'void marriage' is but a convenient phrase. A void marriage is no marriage. Considered literally the expression is self-destructive and contradictory. Provisions similar to Section 24 of the Act are contained in Section 11 of the Hindu Marriage Act, 1955. Lord Morris of Boryth-YGest in Ross v. Ross, (1963) AC 280, stated that the expression 'void marriage' is but a convenient phrase. A void marriage is no marriage. Considered literally the expression is self-destructive and contradictory. Provisions similar to Section 24 of the Act are contained in Section 11 of the Hindu Marriage Act, 1955. It is open to a party to ignore a marriage on the ground that it is void, but if any declaration to that effect is sought for, a petition for the purpose is mandated. ( 5 ) FURTHER question is whether effort for settlement is a must even in a case where declaration that a marriage is void is sought for. No hard and fast rule can be laid down in this regard. This is apparent from the language used in Rule 3 of Order 32-A. The expression "where it is possible to do so consistent with the nature and circumstances of the case" sufficiently indicates the legislative intent that Court has to consider the nature of dispute involved and thereafter take a decision whether to make an endeavour for a settlement. ( 6 ) A somewhat similar case had come up for consideration by the Calcutta High Court. In that case the plea was one of minority of the bride. It was said that the question of age could not be decided before trial of the suit and if evidently the marriage was void on the ground as alleged, any attempt to bring about reconciliation would be meaningless since the marriage is void ab initio and cannot be rendered valid by way of reconciliation. It was, therefore, observed that mere failure to make an attempt for reconciliation, did not affect jurisdiction of the trial Judge and did not render the decree a nullity. See AIR 1990 Calcutta 315, Sk. Salam v. Sant Singh. The view is reasonable and appears to be consistent with the lagislative intent. The trial Court is not helpless in such cases. At any stage in a suit or proceeding relating to matrimonial relief, when it appears to the Court that there is a reasonable possibility for settlement, the Court has discretion to adjourn the proceeding to enable attempts to be made to effect such a settlement. The trial Court is not helpless in such cases. At any stage in a suit or proceeding relating to matrimonial relief, when it appears to the Court that there is a reasonable possibility for settlement, the Court has discretion to adjourn the proceeding to enable attempts to be made to effect such a settlement. If during trial the Court finds that there is scope for settlement, it can act in terms of sub-rule (2) of Rule 3 and therefore, there is no positive statutory mandate that notwithstanding nature of the dispute involved, a settlement has to be attempted. The conclusions of the learned District Judge, therefore, are indefensible. ( 7 ) RESIDUAL question is whether appearance of the petitioner in terms of Order 10 is unavoidable. Specific case of the opposite party is that there are certain aspects of the case which cannot be effectively admitted or denied by the counsel appearing for the petitioner, since they are within special knowledge of the petitioner herself. The petitioner herself had filed a petition on 25-4-1990 to the effect that her personal appearance was to be dispensed with and she had authorised her advocate to act on her behalf in terms of Order 10, Rule 1 of the code. The said provision authorises admission or denial of a party through pleader. Admission on a question of fact made by a pleader binds his client, while consent on a mistaken view of law does not. If the pleader pleads his inability either to make admission or denial in respect of a particular question of fact, then the question of appearance of the party concerned becomes necessary. There is prima facie no illegality in the motion made by the petitioner that her authorised advocate was to appear for her and make admission or denial on her behalf. The learned District Judge should not have refused the prayer. However, if the Court finds that the pleader is not able to either admit or deny any question, the Court shall consider the desirability of directing personal appearance of the petitioner. ( 8 ) THE impugned order is, therefore, set aside and the revision application is disposed of as aforesaid. Order accordingly.