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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 25-4-2018
Delivered on 8-5-2018
First Appeal (Misc.) No. 210 of 2017

(Arising out of the judgment and decree dated 30-6-2017 of the 2nd Additional
District Judge, Surajpur (CG) in Civil Suit No. 65A/2012)

Ramnarayan son of late Shivram, aged about 32 years, caste : Chamar, R/o.
Village Anrokha, PS Bhatgaon, Tahsil Bhaiyathan, Distt. Surajpur (CG)
Appellant
Versus
Smt. Gayatri W/o. Arjun Caste Chamar, aged about 30 years, R/o. Village
Lakhanpur, Police Station and Tahsil Bhaiyathan, Distt. Surajpur (CG)
Respondent

For Appellant : Shri Pushpendra Kumar Patel, Advocate.

For Respondent : None, though served.

Hon’ble Shri Sharad Kumar Gupta, Judge
C.A.V. ORDER

1. In this appeal, the challenge is levied to the judgment and decree

dated 30-6-2017 of the 2nd Additional District Judge, Surajpur Distt. Surajpur

in Civil Suit No. 65/2012 whereby and whereunder he dismissed the divorce

petition filed by the appellant-husband under Section 13 of the Hindu

Marriage Act, 1955 (in brevity ‘the Act, 1955’) against respondent-wife.

2. In brief, the appellant’s case is that his marriage was solemnized with

respondent in the year 1992 in accordance with Hindu rites and rituals, they

lived together for two years, at the time of the marriage they were minor.

Near about 17 years ago from the date of the divorce petition the respondent

performed second marriage with one Arjun and he himself also performed

second marriage with one Smt. Lalita. Thus, divorce may be granted.
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3. In brief, the respondent’s case is that her marriage was not solemnized

with the appellant. She has not performed second marriage.

4. After conclusion of the trial, the trial Court passed the aforesaid

judgment and decree. Being aggrieved, appellant preferred this appeal.

5. Shri Pushpendra Kumar Patel, counsel for the appellant vehemently

argued that the trial Court did not appreciate the evidence in proper

perspective. Appellant’s evidence was unrebutted. Thus, the impugned

judgment and decree may be set aside and divorce may be granted to the

appellant.

6. No one appears for the respondent at the time of hearing though

served.

7. It would be pertinent to mention the provisions of Section 23(2) of the

Act of 1955 which reads as under :-

“23. Decree in proceedings.–

(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.”

8. In the matter of Jagraj Singh -v- Birpal Kaur [2007(2) SCC 564],

Hon’ble Supreme Court held in paras 11 and 26 that :-

“11.Bald assertion of the appellant- husband that no court of law can
direct a party to remain personally present cannot be accepted. Apart
from the matters under the Hindu Marriage Act, 1955, even in civil
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matters also, a court of law may order either the plaintiff or the
defendant to remain personally present in court. For instance, Rule 1
of Order III of the Code of Civil Procedure, 1908 allows appearance of
party in person or through his recognized agent or by an advocate.
The proviso to the said rule, however, declares that any such
appearance shall, if the court so directs, be made by the party in
person. In appropriate cases, a civil court may direct a party to the suit

–plaintiff or defendant, to appear in person.”

“26. A court is expected, nay, bound, to make all attempts and
endeavours for reconciliation. Sub-section (2) of Section 23 is a
salutary provision exhibiting the intention of Parliament requiring the
court “in the first instance” to make every endeavour to bring about a
reconciliation between the parties. If in the light of the above intention
and paramount consideration of the legislature in enacting such
provision, an order is passed by a matrimonial court asking a party to
the proceeding (husband or wife) to remain personally present, it
cannot successfully be contended that the court has no such power
and in case a party to a proceeding does not remain present, at the
most, the court can proceed to decide the case ex parte against
him/her. Upholding of such argument would virtually make the
benevolent provision nugatory, ineffective and unworkable, defeating
the laudable object of reconciliation in matrimonial disputes. The
contention of the appellant, therefore, cannot be upheld.”

9. In the case in hand, it is unequivocal from the record of the trial Court

that it has not made attempt to compel the attendance of respondent to bring

about a conciliation before proceeding ex-parte though the trial Court ought

to have done. Instead of doing so, trial Court proceeded exparte against the

respondent on 10-5-2017 due to non-appearance of him. Moreover, the trial

Court has not framed issues regarding the marriage, voluntary sexual

intercourse by respondent with any person other then her spouse. Moreover,

the trial Court has not given finding with reason regarding voluntary sexual

intercourse by respondent with any person other then her spouse. Moreover,

respondent has pleaded in para 2 of her application under Section 24 of the
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Act of 1955 that she is married wife of the appellant but the trial Court

ignored this material fact and given the finding that there is no evidence

regarding alleged marriage of the appellant and the respondent.

10. Looking to the above mentioned facts and circumstances of the case,

this Court sets aside the impugned judgment and decree passed by the trial

Court and finds that in the case in hand, retrial is necessary. Thus, this Court

remits the case to the trial Court with the directions that it, in the light of

aforesaid provisions of Section 23(2) of the Act of 1955 and the judicial

precedent laid down in Jagraj Singh (supra), and the observation made by

this Court hereinabove, shall proceed to determine the suit in accordance

with law and procedure within outer limit of two months from receipt of this

order. Evidence recorded during the original trial shall subject to all just

exceptions, be evidence during the trial after remand.

11. The appellant is directed to appear before the trial Court on 16-5-2018.

Record be sent to the trial Court immediately.

12. The appeal is disposed of with above directions.

13. No order as to costs.

Sd/-

(Sharad Kumar Gupta)
JUDGE
8-5-2018

kishore/P