Shiv Kumar Gupta Vs. Smt. Lakshmi Devi Gupta - Court Judgment

SooperKanoon Citationsooperkanoon.com/879392
SubjectFamily
CourtKolkata High Court
Decided OnJul-14-2004
Case NumberR.V.W. No. 2254 of 2002, F.M.A. No. 1852 and F.A. No. 283
JudgeAsok Kumar Ganguly and ;Tapan Kumar Dutt, JJ.
Reported in(2004)3CALLT174(HC),I(2005)DMC272
ActsHindu Marriage Act, 1955 - Section 23(2)
AppellantShiv Kumar Gupta
RespondentSmt. Lakshmi Devi Gupta
Appellant AdvocateS.P. Roychowdhury, ;D. Trivedi and ;M. Dasgupta, Advs.
Respondent AdvocateBidyut Kumar Banerjee and ;Shila Sarkar, Advs.
DispositionAppeal allowed
Cases ReferredState of Nagaland and Anr. v. Toulvi Kibami and Anr.
Excerpt:
- a.k. ganguly, j.1. an application has been filed by the petitioner/ husband seeking review of the judgment and order dated 13.05.2002 passed by division bench of this court, to which i was a party.2. by the said judgment and order, a division bench of this court, while admitting an appeal filed by the respondent/wife (f.m.a.t.no.42220 of 2001), disposed of the said appeal in view of the submission made before the court that no attempt was made under section 23(2) of the hindu marriage act, 1955 by the learned trial judge for re-conciliation between the parties. the court, therefore, felt that as the learned trial judge did not discharge its statutory duty, the judgment and order dated 19.03.2001, decreeing the matrimonial suit ex-parte could not be sustained. as such, the division bench set aside the said ex-parte decree and directed the hearing of the suit on a peremptory basis and also directed the trial court to make an attempt for re-conciliation. the division bench directed the suit be decided as early as possible, but, preferably within a period of three months from 27.05.2002 unless of course reconciliation is brought about between the parties. the court also directed that if attempts for reconciliation do not succeed the suit should be disposed of early and no adjournment should be given to any of the parties except for compelling circumstances.3. for properly appreciating the case made out in the review petition, the material facts of the case are to be considered. a matrimonial suit, being suit no.79 of 1997, was filed by the petitioner/husband before the court of the learned additional district judge at barasat, north 24-parganas against the respondent/wife, inter alia, praying for divorce on grounds of cruelty and desertion. in that suit, on 25.08.1999, an attempt was made for re-conciliation, but, the attempt failed. ultimately, the said suit came up for peremptory hearing on 19.03.2001 before the learned court below and on that date, the suit was decreed ex parte in favour of the petitioner/husband and the marriage was dissolved by the said decree of divorce. thereafter, the respondent/wife filed an application for setting aside the ex parte decree and the said application was registered as misc. case no. 16 of 2001. but, by an order dated 25.11.2001, the learned trial judge was please to dismiss the said misc. case.4. challenging the said order, the respondent/wife filed an appeal before this court (f.m.a. no. 1852 of 2002). the said appeal was admitted and disposed of as noted above, on the same day by a division bench of this court, i.e. on 13.05.2002, inter alia, on the ground that no attempt was made for re-conciliation between the parties. the division bench held 'that by not attempting a reconciliation, the court did not discharge its duty under section 23(2) of the hindu marriage act 1955 and the decree can not be sustained and the court disposed of the appeal by giving the following direction:-'in view of the provisions of section 23 sub-section 2 of the hindu marriage act and also the judgment of three hon'ble judges of the supreme court in the case of b. kaur v. h.d. singh, reported in : (1997)11scc701 the order under appeal cannot be sustained. we accordingly set aside the order no. 85 dated 28.11.2002 passed in misc. case no. 6/2001. be that as it may, considering the matter as a whole and specially the fact that this is a matrimonial suit between the parties we fix the date of peremptory hearing of the suit before the court below on 27th of may, 2002.since the date has been fixed in presence of both the parties no notice need be given to the parties.we, however, make it clear that on that date before taking the peremptory hearing of the suit the learned court below must make an effort for re-conciliation between the parties in terms of the provisions contained in the hindu marriage act.it is also made clear that on that date no adjournment should be given to any of the parties except for very compelling reasons.this court expects that the suit be decided as early as possible but preferably within a period of three months from 27th may, 2002 unless of course any conciliation is brought about between the parties.'5. on 27.05.2002, when the matter came up for before the learned trial judge the only stand, which was taken on behalf of the petitioner/ husband was that he would file a review petition before the high court against the said order dated 13.05.2002 and prayed for two months time, inter alia, on the ground that steps held already been taken for reconciliation and such attempts failed. the learned trial judge, however, did not grant the said prayer for adjournment and the learned trial judge felt that he is duty bound to comply with the high court's order. it was also recorded that since the petitioner/husband did not appear for further re-conciliation on that date, re-conciliation failed and the court had no other option except to proceed with the peremptory hearing of the case and, ultimately, by an order dated 27.05.2001 dismissed the said suit for default.6. against the said order of dismissal of the suit, an appeal has been filed before this high court, which has been registered as f.a. no.283 of 2002. when the said review petition came up for hearing before this court and it was mentioned before this court that the aforesaid appeal filed by the petitioner/husband is a connected matter and thereupon, the said appeal has been assigned to this bench and this court proposes to dispose of both the appeal and the review petition by the following order:from a perusal of the order dated 13.05.2002, it is clear that the division bench of this court allowed the appeal only on the ground that the provision of section 23(2) of the hindu marriage act, 1955 has not been complied with. the said provision is set out below:-'23(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 case, to make every endeavour to bring about a reconciliation between the parties.'7. the learned counsel for the respondent/wife also cited a judgment rendered in the case of balwinder kaur v. hardeep singh, reported in : (1997)11scc701 . in paragraph 15 of the said judgment, it has been stated as follows:-'a duty is also cast on 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.'8. on a reading of section 23(2) of the act and on a perusal of the judgment in balwinder kaur on the interpretation of section 23(2) this court held that the decree, which was passed without complying with section 23(2) of the said act, cannot be sustained. now, it appears that the very basis on which the court passed its order on 13.05.02 is nonexistent. from the records (vide order no.42 dated 25.08.99), it appears that an attempt was made for reconciliation in the chamber of the learned trial judge, but the attempt did not succeed. so, the judgment and order of this court dated 13.05.02 passed in f.m.a. no. 1852 of 2002 is vitiated by errors apparent on the face of the record. this review petition thus succeeds and the second part of the judgment and order allowing the appeal is set aside. the first part of the order dated 13.05.2002, which admits the appeal is not set aside and in fact it was argued, and rightly so, that there is no error in that part of the order.9. the learned counsel for the wife/respondent, however, urged that the there is no scope for review and the review petition has become infructuous in view of the fact that the learned trial judge pursuant to the order of this hon'ble court heard the suit and dismissed the same and, thus, the judgment and order of this hon'ble court was compiled with. it was argued that nothing can be done or no order can be passed on the review petition. in support of such contention, the learned counsel cited a judgment of the supreme court in the case of state of nagaland and anr. v. toulvi kibami and anr., reported in : (2003)8scc671 .10. in state of nagaland (supra), supreme court did not decide any legal principle. the decision was rendered in the facts of that case. it was a matter arising out of writ proceedings and was considering claims of promotion between rival claimants. pursuant to the judgment and direction of the division bench in 1995, the promotion rules were amended and promotion was given on the basis of those rules. that decision of the division bench was sought to be reviewed. in that context, the apex court observed that there is nothing be reviewed as all steps were taken pursuant to the directions of the division bench by amending the rules and by giving promotion on the basis of such amended rules. by dismissing the review proceeding, the supreme court gave liberty to challenge the impugned promotion by filing a fresh writ petition and all questions were left open (para 3 of the judgment).11. so, that judgment cannot be applied here as the facts and principles involved, are totally different.12. since the review petition succeeds and the second part of the judgment and order dated 13.05.2002 is set aside, the appeal being f.a. 283 of 2002 is bound to succeed since the impugned judgment and order dismissing the matrimonial suit is based on the second part of the order dated 27.05.02.thus the review petition (r.v.w. no. 2254 of 2002) succeeds and the second part of the order dated 13.05.2002 is set aside. consequently the judgment and order dated 27.05.2002 impugned in f.a. 283 of 2002 is set aside and the appeal is allowed.the appeal by the wife (f.m.a. 1852 of 2002) which has been admitted on 13.05.2002 may be heard out on all points as early as possible. appellant may file the paper book within 3 weeks from date and take steps for its early disposal.no order and no costs.t. k. dutt, j.13. i agree.
Judgment:

A.K. Ganguly, J.

1. An application has been filed by the petitioner/ husband seeking review of the judgment and order dated 13.05.2002 passed by Division Bench of this Court, to which I was a party.

2. By the said judgment and Order, a Division Bench of this Court, while admitting an appeal filed by the respondent/wife (F.M.A.T.No.42220 of 2001), disposed of the said appeal in view of the submission made before the Court that no attempt was made under Section 23(2) of the Hindu Marriage Act, 1955 by the learned trial Judge for re-conciliation between the parties. The Court, therefore, felt that as the learned trial Judge did not discharge its statutory duty, the judgment and order dated 19.03.2001, decreeing the Matrimonial Suit ex-parte could not be sustained. As such, the Division Bench set aside the said ex-parte decree and directed the hearing of the suit on a peremptory basis and also directed the trial Court to make an attempt for re-conciliation. The Division Bench directed the suit be decided as early as possible, but, preferably within a period of three months from 27.05.2002 unless of course reconciliation is brought about between the parties. The Court also directed that if attempts for reconciliation do not succeed the suit should be disposed of early and no adjournment should be given to any of the parties except for compelling circumstances.

3. For properly appreciating the case made out in the Review Petition, the material facts of the case are to be considered. A Matrimonial Suit, being Suit No.79 of 1997, was filed by the petitioner/husband before the Court of the learned Additional District Judge at Barasat, North 24-Parganas against the respondent/wife, inter alia, praying for divorce on grounds of cruelty and desertion. In that suit, on 25.08.1999, an attempt was made for re-conciliation, but, the attempt failed. Ultimately, the said suit came up for peremptory hearing on 19.03.2001 before the learned Court below and on that date, the suit was decreed ex parte in favour of the petitioner/husband and the marriage was dissolved by the said decree of divorce. Thereafter, the respondent/wife filed an application for setting aside the ex parte decree and the said application was registered as Misc. Case No. 16 of 2001. But, by an order dated 25.11.2001, the learned trial Judge was please to dismiss the said Misc. Case.

4. Challenging the said order, the respondent/wife filed an appeal before this Court (F.M.A. No. 1852 of 2002). The said appeal was admitted and disposed of as noted above, on the same day by a Division Bench of this Court, i.e. on 13.05.2002, inter alia, on the ground that no attempt was made for re-conciliation between the parties. The Division Bench held 'that by not attempting a reconciliation, the Court did not discharge its duty under Section 23(2) of the Hindu Marriage Act 1955 and the decree can not be sustained and the Court disposed of the appeal by giving the following direction:-

'In view of the provisions of Section 23 Sub-section 2 of the Hindu Marriage Act and also the judgment of three Hon'ble Judges of the Supreme Court in the case of B. Kaur v. H.D. Singh, reported in : (1997)11SCC701 the order under appeal cannot be sustained. We accordingly set aside the order No. 85 dated 28.11.2002 passed in Misc. Case No. 6/2001. Be that as it may, considering the matter as a whole and specially the fact that this is a matrimonial suit between the parties we fix the date of peremptory hearing of the suit before the Court below on 27th of May, 2002.

Since the date has been fixed in presence of both the parties no notice need be given to the parties.

We, however, make it clear that on that date before taking the peremptory hearing of the suit the learned Court below must make an effort for re-conciliation between the parties in terms of the provisions contained in the Hindu Marriage Act.

It is also made clear that on that date no adjournment should be given to any of the parties except for very compelling reasons.

This Court expects that the suit be decided as early as possible but preferably within a period of three months from 27th May, 2002 unless of course any conciliation is brought about between the parties.'

5. On 27.05.2002, when the matter came up for before the learned trial Judge the only stand, which was taken on behalf of the petitioner/ husband was that he would file a Review Petition before the High Court against the said order dated 13.05.2002 and prayed for two months time, inter alia, on the ground that steps held already been taken for reconciliation and such attempts failed. The learned trial Judge, however, did not grant the said prayer for adjournment and the learned trial Judge felt that he is duty bound to comply with the High Court's order. It was also recorded that since the petitioner/husband did not appear for further re-conciliation on that date, re-conciliation failed and the Court had no other option except to proceed with the peremptory hearing of the case and, ultimately, by an order dated 27.05.2001 dismissed the said suit for default.

6. Against the said order of dismissal of the suit, an appeal has been filed before this High Court, which has been registered as F.A. No.283 of 2002. When the said review petition came up for hearing before this Court and it was mentioned before this Court that the aforesaid appeal filed by the petitioner/husband is a connected matter and thereupon, the said appeal has been assigned to this Bench and this Court proposes to dispose of both the appeal and the Review Petition by the following order:

From a perusal of the order dated 13.05.2002, it is clear that the Division Bench of this Court allowed the appeal only on the ground that the provision of Section 23(2) of the Hindu Marriage Act, 1955 has not been complied with. The said provision is set out below:-'23(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 case, to make every endeavour to bring about a reconciliation between the parties.'

7. The learned counsel for the respondent/wife also cited a judgment rendered in the case of Balwinder Kaur v. Hardeep Singh, reported in : (1997)11SCC701 . In paragraph 15 of the said judgment, it has been stated as follows:-

'A duty is also cast on 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.'

8. On a reading of Section 23(2) of the Act and on a perusal of the judgment in Balwinder Kaur on the interpretation of Section 23(2) this Court held that the decree, which was passed without complying with Section 23(2) of the said Act, cannot be sustained. Now, it appears that the very basis on which the Court passed its order on 13.05.02 is nonexistent. From the records (vide order No.42 dated 25.08.99), it appears that an attempt was made for reconciliation in the chamber of the learned trial Judge, but the attempt did not succeed. So, the judgment and order of this Court dated 13.05.02 passed in F.M.A. No. 1852 of 2002 is vitiated by errors apparent on the face of the record. This review petition thus succeeds and the second part of the judgment and order allowing the appeal is set aside. The first part of the order dated 13.05.2002, which admits the appeal is not set aside and in fact it was argued, and rightly so, that there is no error in that part of the order.

9. The learned counsel for the wife/respondent, however, urged that the there is no scope for review and the review petition has become infructuous in view of the fact that the learned trial Judge pursuant to the order of this Hon'ble Court heard the suit and dismissed the same and, thus, the judgment and order of this Hon'ble Court was compiled with. It was argued that nothing can be done or no order can be passed on the review petition. In support of such contention, the learned Counsel cited a judgment of the Supreme Court in the case of State of Nagaland and Anr. v. Toulvi Kibami and Anr., reported in : (2003)8SCC671 .

10. In State of Nagaland (supra), Supreme Court did not decide any legal principle. The decision was rendered in the facts of that case. It was a matter arising out of writ proceedings and was considering claims of promotion between rival claimants. Pursuant to the judgment and direction of the Division Bench in 1995, the promotion rules were amended and promotion was given on the basis of those rules. That decision of the Division Bench was sought to be reviewed. In that context, the Apex Court observed that there is nothing be reviewed as all steps were taken pursuant to the directions of the Division Bench by amending the rules and by giving promotion on the basis of such amended rules. By dismissing the review proceeding, the Supreme Court gave liberty to challenge the impugned promotion by filing a fresh writ petition and all questions were left open (para 3 of the judgment).

11. So, that judgment cannot be applied here as the facts and principles involved, are totally different.

12. Since the review petition succeeds and the second part of the judgment and order dated 13.05.2002 is set aside, the appeal being F.A. 283 of 2002 is bound to succeed since the impugned judgment and order dismissing the Matrimonial Suit is based on the second part of the order dated 27.05.02.

Thus the review petition (R.V.W. No. 2254 of 2002) succeeds and the second part of the order dated 13.05.2002 is set aside. Consequently the judgment and order dated 27.05.2002 impugned in F.A. 283 of 2002 is set aside and the appeal is allowed.

The appeal by the wife (F.M.A. 1852 of 2002) which has been admitted on 13.05.2002 may be heard out on all points as early as possible. Appellant may file the Paper Book within 3 weeks from date and take steps for its early disposal.

No order and no costs.

T. K. Dutt, J.

13. I agree.