Matrimonial Courts Must Attempt Reconciliation Before Adjudication; Routine Procedure Not Applicable In Divorce Petitions: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court has observed that courts dealing with matrimonial petitions under the Hindu Marriage Act, 1955 are required to undertake a reconciliation exercise at the first instance as mandated under Section 23(2) of the Act and in the spirit of Order 32-A of the Code of Civil Procedure, 1908, and cannot proceed to insist upon filing of replies/objections without first probing the scope for an amicable settlement.These observations came while hearing a petition invoking the supervisory jurisdiction under Article 227 of the Constitution of India, filed by the petitioner-wife aggrieved by the manner in which the divorce petition filed by the respondent-husband was being dealt with by the court of learned Principal District Judge, Samba, which was treating the divorce petition as a routine civil case without undertaking any intervening exercise of mediation and reconciliation at the first instance.A Single Bench of Justice Rahul Bharti, observed that “without undertaking an exercise in terms of Section 23(2) of the Hindu Marriage Act, 1955 to probe a scope for an amicable reconciliation or settlement of the marital feud, the court of learned Principal District Judge, Samba has gone by thrusting mode of inviting reply/objections from the respondent,” held that “the reply to be insisted to be filed by the respondent is not going to smoothen the strained marital relations between the parties. Therefore, the court has to first proceed to explore the possibility of reconciliation and then only subject to failure of the same, to proceed further in the matter of divorce petition.”Mr. Amit Gupta, Senior Advocate, with Mr. Rajeev Chargotra, Advocate, appeared for the petitioner. The respondent appeared in person.In the instant case the marriage between the parties is said to have fallen on a discordant note, leading the respondent to file a divorce petition under Section 13 of the Hindu Marriage Act, 1955, before the court of learned Principal District Judge, Samba, resulting in summoning of the petitioner.The petitioner through her counsel entered appearance. However, without undertaking any reconciliation exercise and unmindful of the spirit of Order 32-A of the CPC, the court of learned Principal District Judge, Samba, proceeded to invite reply/objections from the petitioner-respondent and even put her on a last opportunity to file reply, with a rider that in the event of non-filing, her right to file reply-cum-objections shall be deemed to be closed.The petitioner approached the High Court under Article 227, aggrieved by the manner in which the divorce petition was being dealt with.Court's ObservationThe High Court first noted a procedural lapse in the designation of the court below. The Court observed, “... By reference to a civil jurisdiction, the nomenclature of a civil court is to be referred and not that of a criminal jurisdiction. The Presiding Officer of the court below has passed the order bearing court reference under the designation of Principal Sessions Judge, Samba. There is no jurisdiction vested in a Principal Sessions Judge to entertain a matrimonial petition under the Hindu Marriage Act, 1955. Instead, the order should have been bearing the reference as that of the Principal District Judge, Samba.” The Court directed the Registrar General to address a communication to all Presiding Officers of courts below, civil as well as criminal, to ensure their sensitivity towards the reference of the court in the context of the jurisdiction being exercised.On the substantive issue, the Court examined Section 23(2) of the Hindu Marriage Act, 1955, which requires the court to make every endeavour to bring about a reconciliation between the parties before proceeding with the adjudication of a divorce petition. The Court also referred to Order 32-A of the Code of Civil Procedure, 1908, which casts a duty upon the court in civil suits or proceedings relating to matters concerning the family to make an endeavour at the first instance, consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement.The Court observed that none of the orders on file reflected that any thought had been spared towards reconciliation exercise. The Court remarked, “... This is where the court of learned Principal District Judge, Samba has erred itself of putting the petitioner on a last opportunity to file objections. Filing of reply/objections by the respondent in a matrimonial petition would mean that the petitioner as a respondent would have to come forth with her version vis-à-vis allegations being made against her. The reply to be insisted to be filed by the respondent is not going to smoothen the strained marital relations between the parties.”The Court further held, “... The court has to first proceed to explore the possibility of reconciliation and then only subject to failure of the same, to proceed further in the matter of divorce petition. The court of...

Matrimonial Courts Must Attempt Reconciliation Before Adjudication; Routine Procedure Not Applicable In Divorce Petitions: J&K&L High Court

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Matrimonial Courts Must Attempt Reconciliation Before Adjudication; Routine Procedure Not Applicable In Divorce Petitions: J&K&L High Court

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