w w w . L a w y e r S e r v i c e s . i n



Sidharth v/s Kanta Bai


Company & Directors' Information:- R SIDHARTH & COMPANY (INDIA) PVT LTD [Strike Off] CIN = U17111WB1991PTC051089

    W.P. 15341 Of 2005

    Decided On, 14 November 2006

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE DIPAK MISRA & THE HONOURABLE MR. JUSTICE S.C. SINHO

    For the Appearing Parties: P.K. Asati, Alok Aradhe, Amicus Curiae, Advocates.



Judgment Text

DIPAK MISRA, J.

(1.) Invoking the extra ordinary and inherent jurisdiction of this Court under Article 227 of the Constitution of India the petitioner has called in question the defensibility and tenability of the orders dated 24-1-2004 and 13-8-2006 passed by the learned Ilnd Additional District Judge, Chhindwara in Civil Suit No. 81-A/04, Annexure P5, and prayed for issue of writ of certiorari for quashment of the same. The writ petition was placed before the learned single Judge for grant of necessitous relief on the substratum that the learned IInd Additional District Judge, Chhindwara has erroneously directed the petitioner-husband to pay a sum of Rs. 1,000/- by way of interim maintenance from the date of the order and Rs. 1000/- towards litigation expenses and to pay expenses of each hearing day on the basis of application preferred under Section 24 of the Hindu Marriage Act, 1955 (for brevity, 'the Act'). It is worth mentioning that the second order dated 13-8-2005, was an application for review of the original order, which had faced rejection.

(2.) Before the learned single Judge, it was contended by the husband-petitioner that the Court below has fallen into grave error by allowing interim maintenance and litigation expenses without making any endeavour for reconciliation at the first instance as contemplated under Section 23(2) of the Act which is mandatory in nature and hence, the order passed by him is nothing less than a sanctuary of errors. To bolster the aforesaid submission, reliance was placed on the decision rendered by a learned single Judge of this Court in the case of Kesav Rao v. Tihalibai, 2003 (1) MPHT 5 (NOC), wherein it had been held that the provisions enshrined under Section 23(2) of the Act are mandatory. Learned single Judge hearing the writ petition was prima facie of the view that Section 23(2) would not get attracted for grant of maintenance pendente lite and expenses of proceedings and an order passed under Section 24 of the Act does not tantamount to grant of any relief to either of the spouses inasmuch as such a grant fundamentally is an arrangement. Being of this view, learned single Judge recommended for reconsideration of the view expressed in the decision rendered in the case of Kesav Rao (supra). That is how the matter has been placed before us.

(3.) At the very outset, it is seemly to state that prior to the law laid down in the case of Kesav Rao (supra), another learned single Judge in the case of Jagdish Chandra Kulshresthav. Pramod Kumari, 1993 MPJR 455 had expressed the opinion that the language employed in Section 23(2) makes it mandatory and order granting interim maintenance passed without first making an effort of reconciliation is unsustainable. A Division Bench of this Court had the occasion to consider the provisions contained in sub-sections 23(2) and 24 in the case of Dharmendra Kumar Ramswaroop Sharma v. Pushpadevi w/o Dharmendra Kumar, 1995 MPLJ 555 : (AIR 1995 MP 210), whereby the Division Bench overruled the decision rendered in the case of Jagdish Chandra Kulshrestha (supra) and came to hold that the Court is not disabled from attempting reconciliation before passing an order under Section 24 if it appears to the Court that the position of the parties is such that it would be appropriate to attempt reconciliation at that stage, but, the failure of the Court to make an attempt to bring about the reconciliation of the parties before passing an order under Section 24 of the Act does not make the order illegal. The Division Bench further expressed the opinion that the failure to observe the said requirement is an irregularity and not an illegality, for the provision engrafted under Section 23(2) is neither mandatory nor absolute.

(4.) Mr. P. K. Asati, learned counsel for the petitioner has submitted that the decision rendered in the case of Dharmendra Kumar (AIR 1995 MP 210) (supra) requires reconsideration by a Larger Bench inasmuch as the Division Bench while expressing the opinion that the order would not be illegal but an irregular one, has really not appreciated the language employed in the statute and the manner of enjoinment inherent therein has placed an artificial meaning by taking recourse to interpretative method which is impermissible. Learned counsel has submitted that the marriage has its own sacrosanctity and if reconciliation is not tried to be achieved and an application under Section 24 of the Act is entertained, the possibility of econciliation would be marginalized, and in fact, it would frustrate the object of the provision engrafted under Section 23(2) of the Act. It is urged by Mr. Asati that the terms 'any' and 'first instance' employed in Section 23(2) have to be strictly construed and there is no room to escape from the interpretation in stricto sensu. It is his further submission that if an application under Section 24 of the Act is entertained and allowed the beneficiary, either of the spouses, would indulge in subterfuges to procrastinate the proceeding which is contrary to the spirit of the enactment. Learned counsel contended that a Judge was decides matrimonial issues has a different role than the authority who has been empowered to bring in conciliation under the Industrial Disputes Act, 1947, for the first enactment deals with a sensitive human problem, a concern of a sensitized collective whereas the second statute basically deals with the industrial disputes. Therefore, submitted Mr. Asati, primary steps with regard to the reconciliation have to be given paramountcy prior to determination of maintenance and litigation expenses. It is his further submission that the Parliament in its wisdom has used the word 'shall' and there being no ambiguity, it has to be treated mandatory for all purposes. It is propounded by him that it will be an anathema to the concept of term 'relief as used in Section 23(2) if it is treated or regarded as an arrangement as that can never be the intention of the Legislature.

(5.) Mr. Alok Aradhe, learned amicus cu- riae assisting the Court submitted that if the anatomy of the Act is scanned in proper perspective, it would be luminescent that two categories of reliefs are permissible, namely, substantive reliefs and incidental or ancillary reliefs. The reliefs which are envisaged under Sections 9, 10, 11 and 13 are substantive or primary reliefs and the relief granted under Section 24 would fall in the second category, Submission of learned friend of the Court is that Sections 23(2) and 24 have to be read harmoniously keeping in view the purpose of legislation, the text and the context, and unless such harmonious and purposive construction is placed on both the provisions it would defeat the object of the statute. Mr. Aradhe further contended that the terms used in the provision 'shall' and 'any', per se, would not make the provision mandatory in the absence of any concomitant consequences prescribed therein. It is proponed by him that the word 'any' in all circumstances does not include all and can be read in a restricted manner depending on the context, the subject-matter of the statute and the purpose behind the legislation. Learned counsel further submitted that Section 24 has its own purpose and it is an enabling provision to empower either of the spouses to survive and contest the litigation and unless there is conferral of benefit of economic ability to contest, if deserving* there would be mockery of justice arid a proceeding under the Act seeking substantial relief would be an apology for real adjudication and the conception of fairness of adjudication especially in the backdrop nature of the Us involved shall pale into insignificance and reach an abysmal state. It is urged by him that purposive construction and harmonious reading of both the provisions should be the warrant to subserve the cause of justice and achieve the intent of the Legislature. Learned friend of the Court has invited our attention to many citations to which we shall refer to them at the appropriate stage.

(6.) Section 23 deals with the decree in proceedings. Section 23(2) reads as under ;,

"(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 : Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause, (iii) clause (iv), clause (v), clause (vi) or clause (vii), of sub-section (1) of Section 13."

(7.) Section 24 deals with the maintenance pendente lite and expenses of proceedings. We reproduce the said provision :

"24. Maintenance pendent lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, or the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable : Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be."

(8.) On a reading of Section 24, it is manifest that the Court has a duty to scrutinize if any of the spouses has no independent income sufficient for her or his support and the necessary expenses of the proceedings, on being satisfied it may direct payment of expenses of the proceedings, and such monthly sum during the proceeding, regard being had to the own income of the parties as it may seem reasonable to do.

(9.) Submission of Mr. Aradhe is that though the words used are 'any relief which may apparently include a relief under Section 24, yet it should not be so understood, for the purposes are different and in any case both the provisions must be allowed to harmoniously co-exist to serve the purpose. In this regard, he has commended us to the decisions rendered in the cases of Raj Krushna Bose v. Binod Kanungo, AIR 1954 SC 202, Anwar Hasan Khan v. Mohd. Shafi, (2001) 8 SCC 540 : (AIR 2001 SC 2984), Commissioner of Income-tax v. Hindustan Bulk Carriers, (2003) 3 SCC 57 : (AIR 2003 SC 3942), Calcutta Gujarati Education Society v. Calcutta Municipal Corpn. (2003) 10 SCC 533 : (AIR 2003 SC 4278).

(10.) In the case of Raj Krushna Bose (AIR 1954 SC 202) (supra), S. R. Das, J. (as his Lordship then was) speaking for the Constitution Bench expressed the view that when there is head on clash between the two provisions in a statute, it is the duty of the Court to construe provisions which appear to be in conflict to avoid the conflict.

(11.) In the case of Anwar Hasan (AIR 2001 SC 2984) (supra) their Lordships have held as under :

"8. It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrase used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a "dead letter" is not harmonious construction. With respect to law relating to interpretation of Statutes this Court in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama held : (SCC p. 284, para 16) : (AIR 1990 SC 981, para 16).

"16. The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained form the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. 'Words are certainly not crystals, transparent and unchanged' as Mr. Justice Holmes has wisely and properly warned. (Towne v. Eisner) Learned Hand, J. was equally emphatic when he said : Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them. (Lenigh Valley Coal Co. v. Yensavage)".

(12.) In the case of Hindustan Bulk Carriers (AIR 2003 SC 3942) (supra), Arijit Pasayat, J. speaking for the Bench has expressed the opinion as under (paras 23 to 26 of AIR):

"14. A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat i.e. a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. (See Broom's Legal Maxims (10th Edn.) p. 361, Craies on statutes (7th Edn.) p. 95 and Maxwell on statutes (llth Edn.) p. 22)

15. A statute is designed to be workable and the interpretation thereof by a Court should be a secure that object unless crucial omission or clear direction makes that end unattainable. (See Whitney v. IRC AC at p. 52 referred to in CIT v. S. Teja Singh (AIR 1959 SC 352) and Gursahai Saigal v. CIT (AIR 1963 SC 1062)).

16. The Courts will have to reject that construction which will defeat the plain intention of the legislation even though there may be some inexactitude in the language used. (See Salmon v. Duncombe AC at p. 634, Curtis v. Stovin referred to in S. Teja Singh case).

17. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce he legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (See Nokes v. Dancaster Amalgamated Collieries referred to in Pye v. Minister for Lands for NSW.) The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India (AIR 1992 SC 1)."

(13.) In the case of Calcutta Gujarat! Education Society (AIR 2003 SC 4278) (supra), their Lordships while dealing with the concept of rule of reading down a provision of law observed that it is a rule of harmonious construction in a different name. It is resorted to smoothen crudities and ironing out the creases found in a statute to make it workable. It is further rules therein that the said principle is to be used keeping in view the scheme of the statute and to fulfil its purposes.

(14.) Submission of Mr. Aradhe is that both the provisions have to harmonised to avoid a head on clash and also to achieve the purposive effect of the legislation. Incrementing the aforesaid submission, learned counsel has submitted that the language employed in both the provisions are not such which obstracize harmonization. It is urged by him that the word, 'any' should not be allowed to govern and cover all spec- trums or kinds of reliefs. Learned counsel has also submitted that Section 23 deals with decree in proceedings and the relief granted under Section 24 is not a decree.

(15.) First we shall refer to the use of term 'any' and how the Apex Court has dealt with such a term. In the case of Shri Balganeshan Metals v. Shanmugham Chetty (1987) 2 SCC 707 : (AIR 1987 SC 1668) while interpreting the term 'any' the Apex Court in paragraph 18 has stated thus :

"18. In construing Section 10(3)(c) it is pertinent to note that the words used are "any tenant" and not "a tenant" who can be called upon to vacate the portion in his occupation. The word "any" has the following meaning : some, one of many; an indefinite number. One indiscriminately of whatever kind or quantity. Word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject matter of the statute. It is often synonymous with "either", "every" or "all". Its generality may be restricted by the context, (Black's Law Dictionary, 5th edn.)" From the aforesaid it is clear as day that the meaning of 'any' would depend upon context.

(16.) The term 'shall' submitted by Mr. Asati has to be regarded as the command of the statute. It needs no special emphasis to state that the word "shall" does not always mean 'shall' or imperative. It may at time convey the sense of 'may'. In this regard, we may fruitfully refer to the decision rendered in the case of Administrator, Municipal Committee Charkhi Dadri v. Ramji Bagla, (1995) 5 SCC 272 : (AIR 1995 SC 2329) wherein it has been held that the absence of provisions for consequence in case of non-compliance with the requirements would indicate directory nature despite the use of word 'shall'. Mr. Aradhe has invited our attention to a three Judge decision of the Apex Court in the case of Owners and Parties interested in M. V. "Vali Pero" v. Fernandeo Lopez, AIR 1989 SC 2206 wherein, it has been held as under :

"21. It would suffice to refer only to the decision in Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta, (1985) 3 SCR 825 : (AIR 1985 SC 964). The word 'shall' was used therein in connection with the Court's power to strike off the defence against ejectment in a suit for eviction of tenant in case of default in payment of rent. This Court construed the word 'shall' in that context as directory and not mandatory since such a construction would advance the purpose of enactment and prevent miscarriage of justice. In taking this view, this Court was impressed by the fact that the default attracting the drastic consequence of striking our defence may be only formal or technical and unless the provisions was treated as directory, it would render the Court powerless even where striking out the defence may result in miscarriage of justice. We may refer to a passage from Crawford on 'Statutory Construction' which was quoted with approval in Govindlal Chagganlal Patel v. Agricultural Produce Market Committee, Godhra, (1976) 1 SCR 451 : (AIR 1976 SC 263) and relied on in its decision. The quotation is as under (at p. 267 of AIR) :

"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phraseology of the provisions, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other."

(17.) In the case of Salem Advocate Bar Association, T. N. v. Union of India (2005) 6 SCC 344 in paragraph 20 : (AIR 2005 SC 3353, para 21), it has been ruled thus :

"20. The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."

(18.) In this regard, we may profitably refer to the decision rendered in the case of Kailash v. Nanhku (2005) 4 SCC 480 : (AIR 2005 SC 2441), wherein their Lordships have laid down the dictum that merely because a provision of law is couched in negative language implying a mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted hold the same to be directory though worded in the negative form.

(19.) In view of the aforesaid pronouncement of law it is to be seen whether Section 23(2) can ever be regarded as mandatory in absolute terms. In this regard, it would be apposite to notice certain decisions which relate to the concept of maintenance pen- dente lite and expenses under Sec. 24 of the Act. This Court in W.P. No. 2480 of 2005 : (reported in AIR 2006 MP 1) (Smt. Janki Bai v. Prem Narayan Kushwaha) has expressed the view as under :

"13. In the case of Amarjeet Kaur v. Harbhajan Singh, (2003) 10 SCC 228, their Lordships while dealing with the order of the High Court where a condition was imposed while granting maintenance and litigation expenses directed the Court below to order for conducting the DNA test of the male child which is in custody of the petitioner with the further rider that if the test goes against, the petitioner therein, should not be entitled to get any maintenance pendente lite for herself, but would get maintenance for the girl child which was fixed at Rs. l,000/- per month. In that context, it was contended before the Apex Court that in the matter of grant of maintenance, there is no impediment for the Court to impose a condition of the nature and no exception could be taken to the course adopted by the High Court. Their Lordships in paragraph 8 held as under :

"8. Section 24 of the Hindu Marriage Act, 1955 empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent. Once the High Court, in this case, has come to the conclusion that the appellant wife herein has to be provided with the litigation expenses and monthly maintenance, it is beyond comprehension as to how, dehors the criteria laid down in the statutory provision itself, the Court could have thought of imposing an extraneous condition, with a default clause which is like to defeat the very claim which has been sustained by the Court Itself. Considerations as to the ultimate outcome of the main proceeding after regular trial would be wholly alien to assess the need or necessity for awarding interim maintenance, as long as the marriage, the dissolution of which has been sought, cannot be disputed, and the marital relationship of husband and wife subsisted. As noticed earlier, the relevant statutory consideration being only that either of the parties, who was the petitioner in the application under Section 24 of the Act, has no independent income sufficient for her or his support for the grant of interim maintenance, the same has to be granted and the discretion thereafter left with the Court, in our view, is only with reference to reasonableness of the amount that could be awarded and not to impose any condition, which has self-defeating consequence. Therefore, we are unable to approve of the course adopted by the learned single Judge, in this case."

From the aforesaid pronouncement, it is evincible that their Lordships while scanning the basic requirement of Section 24 of the Act have laid down that the relevant statutory consideration being only that either of the parties who was the petitioner in the application under section 24 of the Act has no independent income sufficient for her or his support for grant of interim maintenance, the same has to be granted and the discretion therefore left with the Court is only with reference to the reasonableness of the amount that would be awarded and not to impose any condition which has self- defeating consequence. It is worth noting here that in paragraph 9 of the said judgment their Lordships dealt with the condition imposed, i.e., conducting a DNA test and expressed no opinion on the legality and propriety of the Court undertaking consideration at the appropriate stage. Their Lordships only confined to the limited aspect of the stage of awarding interim maintenance. It may look that imposition of a condition while granting maintenance allowance can affect the provision thereof distinguishing but a pregnance one, which their Lordships have categorically and unequivocally expressed the opinion with regard to, the re- quirernent of statutory conditions. Their Lordships have used the words "the relevant statutory conditions being only......."and in view of the aforesaid, I am disposed to think that no other condition can be read into the provision to be added as a futuristic conditional one or a conviction. Their Lordships have restricted the discretion to quantum, not to entitlement if the conditions precedent are proved. The submission made by the learned counsel for the respondent that the conduct s a relevant fact and has to be taken into consideration is dehors the provision, as Section 25 has been couched in a different language than Section 24. Section 25 uses the phraseology "..........conduct of the parties and other circumstances of the case". Such wordings are absent in the provision and in the absence of the same, it would be encroaching in the field of legislation to add the said concepts to it on the basis that the Court has a discretion, more- so, when the Apex Court has expressed the view with regard to the limited discretion the Court has. In view of the constricted and restricted discretion on the broader expanse that has been built up and the edifice that is sought to be pyramided by the learned counsel for the respondent have no legs to stand upon and bound to collapse."

(20.) This Court in the case of Dr. Suresh Kumar Verma v, Smt. Hemlata Verma, 2001 (1) MPHT 384 after placing reliance on the decisions rendered in the cases of Dawarka Prasad v. Krishna Devi, 1986 JLJ 179, Yogini Tiwari (Smt.) v. Basant Kumar Tiwari, 1996 (1) MPWN 155, Smt. Dipt! Ghosh v. Swapan Kumar Ghosh, AIR 1991 Calcutta 414 and Madan Lai v. Meena, AIR 1988 Punjab and Haryana 31, expressed the view in paragraph 6 as under :

"6. After bestowing my anxious consideration to the submissions raised by Mr. J.L. Mishra, I am of the considered view that the language used in Section 24 of the Act has to be construed in a purposive manner so that, the purpose of the Legislature is achieved. It cannot be said that the Legislature while using the words any proceeding under this Act intended to confine it only to the substantive proceedings. The purpose of the aforesaid provision is to provide financial assistance to the indigent spouses during .their indigency. There is nothing under Section 24 of the Act to suggest that 'there is prohibition against matrimonial Courts from granting maintenance allowance when the main petition is not pending. If such an interpretation is allowed it will only affect the interest of the spouse, who is not in, a position to maintain himself or herself. A narrower interpretation would frustrate the purpose of the provision."

(21.) Be it noted, in the aforesaid case, the cavil was that after the husband obtained an ex parte decree, non-applicant- wife filed an application under Order 9, Rule 13 of the Code for setting aside the ex parte decree for divorce along with the application under Section 5 of the Limitation Act. While the proceeding was pending, an application under section 24 of the Act was filed for grant of maintenance allowance and litigation expenses, the same was entertained by the learned trial Judge and this Court refused to decline to Interfere in the civil revision,

(22.) Mr. Aradhe has invited our attention to the decision in Bhuvneshwar Prasad Sharma v. Dropta Bai, 1963 MPLJ 346: (AIR 1963 MP 259), wherein the learned Chief Justice expressed the opinion that the object of Section 24 is clearly to enable the Indigent spouse, who has no independent Income sufficient for her or his support and for meeting the necessary expenses of the proceeding, to conduct her or his defence in the proceeding. The basis of an order under Section 24 is that the spouse applying under Section 24 is without means. Thus, the emphasis was laid on the enabling facet of provision.

(23.) Mr. Aradhe has also submitted that certain High Courts have held the provision not to be mandatory. It is worth noting them. In the case of Leelawati v. Ram Sewak, AIR 1979 All 285, it has been held as under :

"The provisions of S. 23(ii) are not absolute. While imposing a duty on the Court to make every endeavour to bring about reconciliation between the parties, a discretion is left to the Court. The duty of the Court is qualified and conditional by the phrase "in every case.......with the nature and circumstances of the case". A decree for restitution of conjugal rights is a command issued by the Court which imposes an obligation on the respondent spouse to the case in which the decree is passed, to go and live with the other spouse and perform marital obligation and when a party bound by such a decree chooses not to perform his or her part of the obligation, it gives either party a right to apply for dissolution bf marriage. In a situation like this it would be a rare case where, any reconciliation between the parties can be brought about by the Court where a petition for divorce is pending,"

(24.) In the case of Raj Rani v. Harbans Singh Chhabra, AIR 1972 Patna 392, a Division Bench has expressed the view that even when no attempt has been made to bring about a reconciliation between the parties under Section 23(2) of the Act, a decree of judicial separation passed by the Court below would not become Invalid Inasmuch as endeavour can be made by the appellate Court. Be it noted, their Lordships accepted the view expressed in the case of Jivubal v. Nlngappa Adrlashappa Yadwad, AIR 1963 Mysore 3.

(25.) Submission of r. Asati is that the wife can procrastinate the proceeding after obtaining interim maintenance and litigation expenses. Mr. Aradhe, learned friend of the Court would submit that such a facet cannot be taken aid of to Interpret the statutory provision. The purpose of Section 24 as has been held by many Courts submits Mr. Aradhe, is to enable either of the spouses to put forth a defence. In the case of Dharmendra Kumar (AIR 1995 MP 210) (supra), the Division Bench after referring to the various provisions in paragraphs 7 to 9 expressed the view as under :

"7. The scheme and the provisions of the Act would indicate that the dominant legislation purpose underlying the Act is to bring about certain desirable reforms in the Hindu Law relating to marriage. The provisions reflect the concern of the legislature to promote and preserve the institution of marriage and at the same time liberalise the scope for securing matrimonial reliefs. The Legislature while providing for matrimonial reliefs, has taken care to ensure that the marital tie is not impulsive or indiscriminately severed. The matrimonial Court has been invested with manifold powers, duties and functions which are necessary to effectuate the legislative purpose. The legislature has also shown concern to ensure that the forensic fight should be between equals since any fight between unequals is likely to lead to a distorted or unfair verdict. This is sought to be achieved by Section 24 providing for maintenance pendente lite and expenses of litigation.

8. The order which the Court passes under Section 24 is not an order granting relief in the matrimonial cause. It is an order incidental to the matrimonial cause. The order for permanent alimony and maintenance under Section 25, order for custody under Section 26, and for disposal under Section 27 are also not substantive orders in the matrimonial cause; they are Incidental orders in the cause.

9. The right of a party which is effectuated by the Court under Section 24 cannot, except for serious and cogent reasons, be allowed to be f

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rustrated. A proceeding under Section 24 is of a summary nature and the scope of the enquiry is limited. The end sought to be achieved is the removal of the disability of the party without sufficient income. The purpose of Section 24 will be frustrated by any unreasonable postponement of the decision party dragging on the reconciliation attempt. If the spouses are unequal in the economic sense, the inequality may Itself stand in the way of reconciliation. Reconciliation shall also be based on mutuality, mutual respect and dignity. The party who has no adequate means may feel compelled to agree to a reconciliation which may not be based on mutual respect and dignity. The legislative purpose is not to compel the spouses to come together at any cost. Even to achieve such reconciliation, certain degree of balance between the parties at least in the economic sense is necessary." (26.) Thus, the view expressed by the Division Bench deals with the basic facet of Section 24. Be it placed on record, the Division Bench has concurred with the view expressed by the Mysore, Allahabad, and Madras High Courts. (27.) Dwelling upon various aspects, we proceed to state our conclusions as follows: (i) Section 24 of the Act fundamentally deals with an ancillary or incidentally relief and is an enabling provision to empower either of the spouses to put forth the defensces in the main proceeding. (ii) Section 23(2) and Section 24 co-exist in harmony and in fact if the context and subject-matter are appreciated in proper perspective, there is no anomaly in between the two provisions. (iii) Section 23(2) is not mandatory and does not operate in absolute terms. (iv) Any order passed without compliance under Section 23(2) as has been held in the case of Dharmendra Kumar (AIR 1995 MP 210) (supra) would be an irregular and not in illegality. (v) An order under Section 24 can always to be passed without taking steps for bringing out reconciliation under Section 23(2) of the Act for the timing to make efforts for reconciliation is in the discretion of the Court. (vi) Grant of pendente lite maintenance under Section 24 of the Act is not to be construed in a narrow compass as the Court has jurisdiction to pass the order arises at the stage of institution of proceedings and continues till the proceeding is concluded. (vli) The maintenance and the entitlement under section 24 of the Act can be made available even in a proceeding pertaining to setting aside of an ex parte decree and restoration of the main suit. (viii) The judgment delivered in the case of Kesav Rao (supra) does not lay down the correct law and any judgment following the said decision should be deemed not to have lay down the law correctly. (ix) 'Any relief that has been used in Section 23(2) would not cover an incidental and ancillary relief during the proceeding as that has to be construed in broader canvass and would include only substantive relief and further if there is non-compliance of the same, it would amount to an Irregularity and not an illegality and such irregularity is rec- tlfiable at the appellate stage and would not render the Judgment or an order a nullity. (x) As we have concurred with the view rendered in the case of Dharmendra Kumar (AIR 1995 MP 210) (supra), there is no need to refer the matter to a larger bench. 27-A. Before we part with the case, we must record our unreserved appreciation for the assistance rendered by Mr. Alok Aradhe, learned amicus curiae. (28.) Let the matter be placed before the learned single Judge for disposal of the writ petition in accordance with law. Order accordingly.
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