Judgment:
M.Y. Eqbal, J.
1. This civil revision is directed against the order dated 8-7-1999 passed by 5th Additional Judicial Commissioner, Ranchi in Matrimonial Title Suit No. 59 of 1996, whereby he has rejected the application filed by the petitioner to pass necessary orders and to proceed with the hearing of the suit without waiting for the reconciliation.
2. The facts of the case lie in a narrow compass. The plaintiff-petitioner filed Matrimonial Title Suit No. 310 of 1995 in the Court of District Judge, Alipore, 24 Parganas, West Bengal, which was, on the application of the defendant-opposite party before the Hon'ble Supreme Court of India, transferred to the Court of Judicial Commissioner, Ranchi, by order dated 8th April, 1996 passed in Transfer Petition (C) No. 598 of 1995. The said Matrimonial Suit was renumbered and registered as Matrimonial Title Suit No. 59 of 1996 in the Court of Judicial Commissioner, Ranchi and was subsequently transferred to the Court of 5th Additional Judicial Commissioner, Ranchi for disposal.
3. During pendency of the aforesaid suit, both the petitioner and the Opposite party appeared and filed a joint petition under Section 28 of the Special Marriage Act on 26-11-1998 praying, inter alia, for dissolving the marriage between the plaintiff and the defendant and to pass a decree for dissolution of marriage by mutual consent. It is stated that in terms of the joint petition, the defendant-opposite party filed an application for withdrawal of two criminal cases field by her against the plaintiff-petitioner being G.R. No. 1335/95 arising out of Complaint Case No. 399/94 pending in the Court of the Judicial Magistrate, Ranchi and also a proceeding under Section 125, Cr. P.C. It is stated that on the application for withdrawal of the two criminal cases filed by the defendant-Opposite party, order for withdrawal was passed and cases have been withdrawn. The petitioner and the Opposite Party again filed a joint petition on 15-3-1999 praying for passing a decree under Section 28 of the said Act as soon as possible instead of waiting for the statutory period of six months. The said application was rejected by the Court below and an order was passed for reconciliation. It is stated that the petitioner resides in U.S.A. and is doing Research work there and there was no possibility of any reconciliation between the parties. The petitioner accordingly filed a petition on 5-5-1999 praying to pass necessary order that the attempt for reconciliation between the parties is not possible and to proceed with the hearing of the suit. The defendant-Opposite Party also filed a petition claiming the same prayer that there was no possibility for reconciliation and it was not possible for the parties to personally appear before the Court for reconciliation.
The learned Court below refused the prayer of the parties holding that the Court cannot proceed with the suit as the reconciliation between the parties is essential requirement of law. Accordingly, Court below again directed the petitioner and the opposite party to be present in Court for reconciliation.
4. Mr, M.M. Banerjee, learned Counsel appearing for the petitioner assailed the impugned order as being illegal and amounts to failure in the exercise of jurisdiction. Learned Counsel submitted that the Court below failed to take into consideration that the petitioner was well represented before the Court through his lawyer who is also holding a power of attorney. Learned Counsel submitted that admittedly the petitioner has been permanently residing in U.S.A. and his personal appearance in the Court is not practicable possible and the petitioner repeatedly refused for any reconciliation. The learned Counsel submitted that when both the parties have repeatedly, by affidavits submitted in Court, refused reconciliation then the Court should have proceeded for disposal of the suit on the basis of the mutual petition filed by the parties.
5. Mr. Shakil Ahmad, learned Counsel appearing on behalf of the Opposite Party advanced the same argument and submitted that the Opposite party also refused for any reconciliation and she has filed several petitions praying to the Court for passing a decree without insisting her to appear in Court but the Court below is not proceeding with the case.
6. After having heard the learned Counsel for the parties, the question falls for consideration is as to whether the provision of Section 34(2) of the Special Marriage Act (hereinafter referred to 'as the Act') is mandatory in nature or is subject to certain exception. For better appreciation, the relevant provisions of the Act is necessary to be looked into. Section 28 of the said Act lays down the provision for divorce by mutual consent. The said Section reads as under:
28. Divorce by mutual consent.-(1) Subject to the provisions of this Act and to the Rules made thereunder, a petition of divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after date of the presentation of the petition referred to in Sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised under this Act and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
On bare perusal of the aforesaid provision, it is manifest that a petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more and they have not been living together and have mutually agreed that the marriage should be dissolved. Sub-section (2) provides that the District Court, on being satisfied, after hearing the parties and after making such inquiry that a marriage have been solemnised and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
7. The next relevant provision is Sub-section (2) of Section 34 which reads as under:
34. Duty of Court in passing decrees.-(1) In a proceeding...
(2) Before proceeding to grant any relief under this Act it shall be the duly 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 case, to make every endeavour to bring about a reconciliation between the parties.
(Emphasis given)
From reading of the aforesaid provision, it is clear that Sub-section (2) cast a duty upon the Court in the first instance to make endeavour to bring about reconciliation between the parties provided it is possible to do so. In other words, from the affidavits of the parties, it appears to the Court that the reconciliation is not possible then the Court may after recording reasons proceed to dispose of the application for divorce in accordance with law. It is not necessary for the Court in every case to compel the parties to appear for reconciliation, particularly, in cases where the parties by separate petitions refusing reconciliation and insisting the Court for a decree of divorce by mutual consent.
8. In the case of Annalie Prashad v. Romesh Prasad : AIR1968Cal48 , a Division Bench of the Calcutta High Court was considering a similar question whether personal appearance or presence of of the parties before the Court is necessary in a suit where a decree for divorce is sought by mutual consent. In that case, the fact was that the husband and. the wife filed a joint petition under Section 28 of the Special Marriage Act for divorce by mutual consent. In that proceeding, an application was filed by the husband-appellant for being allowed to give evidence by affidavit under the circumstances stated in the petition. The application was not opposed by the respondent-wife, but the trial Court, being of the opinion that having regard to language of Section 28(2) of the Special Marriage Act, rejected the prayer holding that affidavit evidence cannot be allowed. The trial Judge accordingly directed the parties to be present personally in Court. The said order was challenged by the appellant before the Calcutta High Court by filing appeal. Allowing the appeal, their Lordships held that in a case where divorce is sought for by mutual consent, it is not always desirable that the parties themselves should be present in Court, even if it is not possible to do so.
9. Admittedly, the petitioner has been residing in U.S.A. and when the order for reconciliation was passed by the Court below, the petitioner filed petitions refusing reconciliation and disclosed his practical difficulties in coming to Court for reconciliation. Not only that the defendant-Opposite party also filed the petitions and categorically stated that she refused to reconcile with the plaintiff and she is no more interested to remain in marriage ties with the plaintiff. She also prayed that her refusal may be recorded for any reconciliation with the plaintiff. In such circumstances, where the personal appearance of the petitioner was not possible and also in view of the fact that the defendant repeatedly filed petitions refusing for reconciliation, the Court below ought to have proceeded with the main petition after recording the fact that reconciliation between the parties was not possible.
10. In the light of the facts of the instant case, the conduct of the parties, the admission made by the parties in joint petition filed in Court and on overall view of the matter, in my opinion, it may not be necessary to compel the parties to appear in Court for reconciliation.
11. Moreover, the parties have been residing separately since January 29, 1993 and more than 8 months have passed since after the filing of joint petition for divorce and the parties have settled all the matter and the defendant has already renounced her right to claim maintenance and withdrawn the criminal cases filed against the petitioner. The only relief prayed for is a decree for dissolution of marriage for mutual consent. Taking into consideration all these facts, there is no question of revival and continuation of the relationship.
12. In my opinion, therefore, the Court below has failed to exercise jurisdiction in accordance with law. When both the petitioner and the opposite party have been stating on affidavits that they do not want to live together and they refused reconciliation then the Court below ought not to have insisted the parties for their personal appearance in Court for reconciliation.
13. Having regard to the facts and circumstances of the case and the reasons stated hereinabove, I am of the opinion that the impugned order passed by the Court below is not in accordance with law. In the result, this application is allowed and the order passed by the learned Court below is set aside. I, therefore, direct the Court below to proceed with the main application on the footing that the reconciliation is not possible, in the facts and circumstances of the case.