Shiv Poojan vs Smt. Shitaba Devi
2021 Latest Caselaw 4220 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 3
 

 
Case :- FIRST APPEAL No. - 83 of 2019
 

 
Appellant :- Shiv Poojan
 
Respondent :- Smt. Shitaba Devi
 
Counsel for Appellant :- Nijam Ahamad
 

 
Hon'ble Alok Singh,J.

Hon'ble Saurabh Lavania,J.

( Per Saurabh Lavania, J. )

Heard Sri Nijam Ahmad, learned counsel for the appellant.

Despite of service of notice, as per office reports dated 29.08.2019 and 14.01.2020, no one appeared on behalf of respondent/ Smt. Shitaba Devi.

The appellant has preferred the present first appeal under Section 19(1) of the Family Court Act, 1984 against the judgment and order dated 08.05.2019 passed by Principal Judge, Family Court, Ambedkar Nagar in Family Case No. 274 of 2019 ( Shiv Poojan Vs. Shitaba Devi) filed by appellant under Section 9 of the Hindu Marriage Act (hereinafter referred as 'H.M. Act') for Restitution of Conjugal Rights.

Facts, in brief, of the case are that marriage was performed between the appellant and respondent on 11.06.2012 and out of their wedlock one dead female child was born in the year 2014 and thereafter a male child was born in the year 2015. By passage of time some dispute arose between appellant and respondent and the respondent left her matrimonial home on 01.06.2017 and started living in her parental house. The appellant made all the efforts to bring back the respondent to metrimonial home but the same went in vain. Thereafter the appellant approached the family court by filing a suit no. 274 of 2019 for Restitution of Conjugal Rights under Section 9 of the H.M. Act. On 08.05.2019, the Principal Judge, Family Court, Ambedkar Nagar dismissed the suit at the admission stage. The order dated 08.05.2019 on reproduction reads as under:-

"okn is'k gqvkA oknh mifLFkrA fofo/k okn ntZ gksdj vaxhdj.k ij lquok;h gsrq yUp ckn is'k gksA

g0 viBuh;

ckngw yap vaxhdj.k ij lquk x;kA okn i= dh /kkjk&6 esa okn dkj.k of.kZr fd;k gS ijUrq /kkjk&7 esa dc ls dc ¼vafre½ rd lkFk jgs] vafdr ugha gSA oknh }kjk okn i= dh /kkjk 7 esa {ks=kf/kdkj of.kZr fd;k gS ijUrq iqu% /kkjk 9 esa ,d voS/kkfud 'kCn **dk;Zdkj.k** ds vk/kkj ij okn dk {ks=kf/kdkj crk;k gS tks fd /kkjk 19 HMA ds foijhr gSA okn dkj.k ls okn nk;jk dk vf/kdkj feyrk gS {ks=kf/kdkj ugha gSA vr% okn mDr dkj.k ls fujLr fd;k tkrk gSA i=koyh nkf[ky nQ~rj gksA "

Assailing the judgment and order dated 08.05.2019, learned counsel for the appellant has submitted that the family court/trial court while passing the judgment under appeal has failed to take note of para-4 of the plaint wherein it has been specifically stated that respondent left her matrimonial home on 01.06.2017. A conjoint reading of contents of paras 6 to 9 would show that plaint contains sufficient averments regarding territorial jurisdiction and cause of action, however, the family court failed to appreciate the same in correct persepective.

It is further submitted that while passing the impugned judgment, the family court has taken hyper technical view regarding drafting of the plain. In fact there appears no defect in drafting of plaint. The Family Court in the suit for Restitution of Conjugal Rights ought to have taken lenient view. It is settled legal proposition that every possible efforts should be made by the concerned court for resolving the family dispute amicably by adopting mode of mediation and conciliation and in view of the same, an opportunity to cure the defect ought to have given by the family court to the appellant if the family court is of the view that there are some errors in drafting the plaint.

It is also stated that the family court ought to have considered the entire averments made in the plaint, which has not been done and the suit has been dismissed at the admission stage on the ground on which it could not be. Prayer is to allow the appeal.

We have considered the arguments of learned counsel for the appellant and perused the record.

Before considering the judgment and order dated 08.05.2019,as the subject matter of the present appeal relates to family dispute, it would be appropriate to remind the trial court, as per the procedure prescribed under Order 32-A of the Code of Civil Procedure,1908, that "an endevour 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 the settlement in respect of subject matter of the suit". The order 32-A of C.P.C. on reproduction reads as under:-

"1. Application of the Order.--(1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:--

(a) a suit or proceeding for matrimonial relief, including a suit or proceedings for declaration as to the validity of a marriage or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to legitimacy of any person;

(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;

(d) a suit or proceeding for maintenance;

(e) a suit or proceeding as to the validity or effect of an adoption;

(f) a suit or proceeding, instituted by a member of the family, relating to wills, intestacy and succession;

(g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.

(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.

2. Proceedings to be held in camera.--In every suit or proceeding to which this Order applies, the proceedings may be held in camera if the Court so desires and shall be so held if either party so desires.

3. Duty of Court to make efforts for settlement.--(1) 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.

(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.

4. Assistance of welfare expert.--In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this Order.

5. Duty to inquire into facts.--In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.

6. "Family"--meaning of.--For the purposes of this Order, each of the following shall be treated as constituting a family, namely:--

(a) (i) a man and his wife living together,

(ii) any child or children, being issue of theirs; or of such man or such wife,

(iii) any child or children being maintained by such man and wife;

(b) a man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being mantained by him;

(c) a woman not having her husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother; sister, ancestor or lineal descendant living with him or her; and

(e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this rule.

Explanation.--For the avoidance of doubts, it is hereby declared that the provisions of rule 6 shall be without any prejudice to the concept of "family" in any personal law or in an other law for the time being in force.]

Section 9 of the Family Court Act,1984 , also cast a duty upon the family court to make all efforts for settlement, which reads as under:-

"9. Duty of Family Court to make efforts for settlement.--(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.

(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.

Apart from above, it would also be useful to refer the observations, though in the cases not similar to the facts of the present case, made by Courts on the aspect of settlement of dispute (re-conciliation or re-union) between husband and wife.

In the case of V.K. Gupta v. Nirmala Gupta, 1980 (1979)4 SCC 258 dealing with a case of divorce under the Act, the Hon'ble Supreme Court made the following observations:--

"It is fundamental that reconciliation of a ruptured marriage is the first essay of the Judge, aided by counsel in this noble adventure. The sancity of marriage is, in essence, the foundation of civilisation and, therefore court and counsel owe a duty to society to strain to the utmost repair the snapped relations between the parties. This task becomes more insistent when an innocent off spring of the wedding struggles in between the disputed parents. In the present case, there is a child, quite young, the marriage itself being young".

It has been observed by the Hon'ble Supreme Court that it is the duty of the court as well the counsel for the parties to try reconciliation. That was a case where a divorce petition was dismissed by the trial court and the High Court and the matter was before the Supreme Court when reconciliation was attempted and it appears that parties reconciled. The reconciliation of ruptured marriage is the foremost duty of the Judge and the counsel.

In the case of Jivubai v. Ningappa, AIR 1963 Mys 3, the High Court of Mysore in para (s) 8 and 9 of the judgment, observed as under:-

"There can be no doubt that a duty is laid on the Court to make every endeavour to bring about a reconciliation between the parties whenever the nature and the circumstances of the case permit it to do so".

The intention of the provision undoubtedly is to render all possible assistance in the maintenance of the marital bond and if at any stage of the case the circumstances are propitious for reconciliation it will be the Court's duty to make use of such circumstances irrespective of the stage.

If no endeavour had been made by the Court, it will undoubtedly be a serious omission. "

 In the case of Chhote Lal v. Kamla Devi and others, AIR 1967 Patna 269 it has been observed that 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. The following observations have also been made in this judgment:--

"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."

In the case of Raghunath Prasad v. Smt. ''Urmila ''Devi and another, AIR 1973 Allahabad 203 it has been observed that the effort at reconciliation is to be made by the court fight from the start of the case and not only after the closure of the final hearmg of the case and before the court proceeds to grant relief. It has been further observed that the court cannot give up effort of recanciliation on the ground that the counsel for the parties had stated that there was no chance of reconciliation. This judgment further states that if is not a matter of discretion of the court whether to make endeavour to bring about reconciliation or not but it is its duty to endeavour at reconciliation.

In the case of Ram Kumar v. Kamla Dutta, AIR 1981 Jammu and Kashmir 9, it has been observed that the court should try first for reconciliation and it should be done even without filing the objection to the petition. I am in respectful agreement with the observations of the learned Judge in this case.

From the aforesaid only conclusion which can be drawn is that it is the duty of court to endeavour to bring about reconciliation between the parties. The intention of the legislature is that an attempt should be made by the court for reconciliation before proceeding with the hearing of the petition. The provision appears to be mandatory and an effort for reconciliation is to be made by the court right from the start of the case by directing and giving reasonable opportunity to the parties to appear in person before the Court even the filing of the written statement by the opposite party should not be insisted, and reconciliation should be attempted by the court. If reconciliation attempt fails, written statement be filed. The Court however is to watch the proceedings during trial and make further attempt for reconciliation at any stage deemed appropriate by the court but in any case duty is cast upon the court to try reconciliation between the parties before finally deciding the proceedings.

Now coming to facts of the case and reasoning given by the family court while passing the judgment and order dated 08.05.2019.

In para-4 of the plaint it has been specifically stated that on 01.06.2017 respondent left her matrimonial home with her brother Manoj. In paras 6 of the plaint a date i.e. 15.04.2019 is mentioned, on which mediation for re-union was failed.

In para- 7 of the plaint, in regard to territorial jurisdiction of the court, it has been specifically stated that the respondent (wife of the appellant) was last resided with the appellant at Village Hithuri Daudpur, Pargana and Tehsil Tanda, District Ambedkar Nagar and the parental home of the respondent is also at Ambedkar Nagar. In view of Section 19(1)(iii) of the H.M. Act, a petition can be presented to the district court within the local limits of whose ordinary original civil jurisdiction, the parties to marriage last resided. Thus the finding of family court in this regard is perverse.

The english meaning of expression *dk;Zdkj.k** mentioned in para 9 of the plaint, as per Legal Glossary, is "cause and effect". One of the meaning of word "dk;Z" in Legal Glossary is "action" and of word "dkj.k** is "cause". Thus, the expression "dk;Zdkj.k** mentioned in para 9 of the plaint refers to " Cause of Action". In view of the same, the finding of family court in this regard is unsustainable being perverse.

At this stage, it would be appropriate to take note of the Order VII Rule 11 of Code of Civil Procedure which provides rejection of plaint. The plaint under Order VII Rule 11 C.P.C. can be rejected : (a) where it does not disclose the cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within the time to be fixed by the court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it has not been filed in duplicate;(f) where the plaintiff fails to comply with the provisions of rule 9. Thus, without touching the merits of the case, the plaint can be rejected on the grounds mentioned in the Order VII Rule 11 C.P.C. The rejection plaint under Order VII Rule 11 C.P.C. in effect is dismissal of the suit at admission stage.

From the averments made in the plaint it appears that cause of action for filing the suit was accrued for the first time to the appellant on 01.06.2017,when the respondent left the matrimonial home and lastly on 15.04.2019, when the mediation was failed. Thus, this is not a case in which cause of action was neither accrued nor disclosed .

The suit was filed for Restitution of Conjugal Rights as such we are of the view that if the court below was of opinion that drafting is not proper then in that event considering the nature of the suit which which was filed for Restitution of Conjugal Rights under section 9 of the H.M. Act the court ought to have permitted the plaintiff/ appellant to cure the defect in the pleadings by making necessary amendment in the suit. In family matters, the family court should work as a mediator and conciliator and always try to settle the dispute between husband and wife, as observed herein above, which has not been done in the present case. The family court , in our view, in the present case has failed to discharge its obligation, as stated above.

For the foregoing reasons, the appeal is allowed. The judgement and order dated 8.05.2019 passed by Principal Judge, Family Court, Amedkar Nagar in Family Case No. 274 of 2019 ( Shiv Poojan Vs. Shitaba Devi) is set aside. The matter is remanded back to the Principal Judge, Family Court, Amedkar Nagar to decide the matter afresh.

Order Date :- 22.3.2021

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