- (1.) THIS revisional application is directed against the order dated 29-10-1971 passed by the learned District Judge, Varanasi in the case No. 2 of 1971 which has been filed by the applicant claiming a decree against the Opposite Party No. 1 for restitution of conjugal rights.
(2.) ON 14th April, 1971, the appli cant filed an application before the court below praying that the Opposite Party No. 1 be directed to produce herself for reconcilia tion and to produce herself before the lady Doctor of Civil Hospital, Varanasi for her medical examination. The Opposite Party No. 1 filed an objection to the said appli cation on 15-5-1971. She alleged inter alia that as there had been "chhuttam chutta" (perhaps meaning thereby 'divorce') between the parties the applicant was not entitled to have the medical examination of the Oppo site Party No. 1. It was, however, not al leged in her aforesaid objection that she would not appear before the Court in con nection with the proposed reconciliation proceedings. On 23-7-1971 the learned Dist rict Judge after hearing the counsel for the parties' directed the applicant and the Oppo site Party No. 1 to be present in person on the next date of hearing which was fixed for 27-8-1971. The case could not, how ever, be taken up on 27-8-1971 and it was adjourned to 24-9-1971. As the parties were not present in person on 24-9-1971 the case was adjourned to 29-10- 1971 for disposal of the aforesaid application and objection and for issues and the parties were required to be present in person. On 29-10-1971 when the case was taken up the counsel for the Op posite Party No. 1 stated that there were ab solutely no chances for reconciliation where upon the learned District Judge ordered that the attendance of the Opposite Party No. 1 in court would not be necessary and he re called his previous order in this behalf. It is this part of the order of the Court below which is being impugned in this revision. The learned counsel for the appli cant contended that as laid down in sub section (2) of Section 23 of the Hindu Mar riage Act, it was the dutjt of the court below to make every endeavour to bring about a reconciliation between the parties but it failed in the performance of its duty by not requiring the Opposite Party No. 1 to appear hi person before the Court. It was urged that in the matter of reconcilia tion the Opposite Party No. 1 should have been directed to appear in person before the court so that the question of reconciliation should have been taken directly with hei and the matter should not have been drop ped merely on the statement of her counsel. It was, however, argued on behalf of the Opposite Party No. 1, that the statement of her counsel in that behalf was quite suffi cient and keeping in view the nature and circumstances of the case the court below was justified in not directing her to appeal in person before the Court The contention of the Opposite Party No. 1, is, however, not tenable. Sub-section (2) of Section 23 of the Hindu Marriage Act, 1955, provi des:- "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 to do so consistently with the nature and circumstances of the case, to make every endeavour to bring about a re conciliation between the parties." In view of this provision of law, It It the duty of the trial Court to make every en deavour to bring about reconciliation be tween the parties. This duty is to be perform ed consistently with the nature and circum stances of the case. The object behind this provision is to provide all help in the main tenance of marital ties and restoration of peace to the estranged couple. Emphasis ii, however, laid that steps for bringing about reconciliation between the parties should be taken by the Court "in the first instance." In other words, the endeavour should be made right from the start of the case. That does not, however, mean that the attempt for bringing about reconciliation can be made only at the initial stage of the case and not at any later stage. The effort in that direction should be made by the court whenever the circumstances of the case war rant it to do so. The contention of the learned counsel for the Opposite Party No. 1 that the endeavounr for bringing about re conciliation can be made only after the clo sure of the final hearing of the case and before the Court proceeds to grant any relief under the Act cannot therefore be sustained. 'The words "in the first instance", in sub section (2) of Section 23 do not bear out that contention. These words indicate that the Court should make use of its good offi ces for bringing about reconciliation between the estranged parties at any stage of the suit whether it is the initial stage or a later stage whenever it finds it possible to do so regard being had to the nature and circum stances of the case. However, if no endea vour is made by the Court though it was possible to do so consistently with the nature and circumstances of the case the Court would be failing to perform a duty which the law enjoins upon it. In a deli cate matter pertaining to marital obligations the differences between the parties may be resolved and they may be persuaded to re concile only when they appear before the court in person and explain their grievances and anpreciate the sentiments of each other. As it is a matter very much personal to the parties, then" appearance in person before the Court is all the more essential while the Court proceed to bring about reconciliation between them. A duty is cast upon the Court "to make every endeavour" to bring about reconciliation. In other words, the Court should make sincere efforts at reconci liation. It should ascertain from the parties themselves as to what brought the rupture in their relations as husband and wife and explore the possibilities of reconciliation between them. This may be achieved only when the parties appear before the Court in person. Effort for reconciliation cannot be given up merely on the ground that the counsel for one or both the parties had stated that there was absolutely no chance for reconciliation. Relinquishing the effort in such matters merely on the statement made by the counsel for a party would amount to failure on the part of the Court in the performance of a duty enjoined upon it by law.
(3.) IN the case on hand the court below had at first ordered the parties to ap pear in person. However, on 27th October, 1971, the learned counsel for the Opposite Party No. 1 stated that there were absolutely no chances for reconciliation, whereupon the Court ordered that the attendance of the opposite Party No. 1 would not be necessary] and it recalled its previous order in this be half. This was clearly not in consonance with the provisions of sub-section (2) of Sec tion 23 of the aforesaid Act. The court be-low did not direct the Opposite Party No. 1 to appear in person and state about that fad nor did it ask for her personal affidavit. In my view the requirements of the law were not complied with and the Court below fail ed to perform its duty laid down in the aforesaid provision of the Act;