How to deal with a Divorce Petition

A petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement of law. One may refer to the Objects and Reasons which led to setting up of Family Courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is “laid on conciliation and achieving socially desirable results” and eliminating adherence to rigid rules of procedure and evidence. These further note:

“The Law Commission in its 59th Report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from that adopted in ordinary civil Proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or Proceedings relating to matters concerning the family. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same advisary (adversary) approach prevails.”

10. It is now obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or settlement between the parties to a Family dispute. It will be useful to note the qualifications and the method of selection of a Family Court Judge. That will be sub-sections (3) and (4) of S. 4 of the Family Courts Act:

“(3) A person shall not be qualified for appointment as a Judge unless he –

(a) has for at least seven years held a judicial office in India or the office of a member of a Tribunal or any post under the Union or a State requiring special knowledge of law; or

(b) has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or

(c) possesses such other qualifications as the Central Government may, with the concurrence of the Chief Justice of India, prescribed.

(4) In selecting persons for appointment as Judges,-

(a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and

(b) preference shall be given to women.”

11. Even where the Family Courts are not functioning, the objects and principles underlying the constitution of these Courts can be kept in view by the civil Courts trying matrimonial causes.

12. Under S. 21 of Hindu Marriage Act provisions of Code of Civil Procedure, 1908, as far as may be, are applicable but that is subject to other provisions contained in the Act and to such rules as the High Court may make in this behalf. Under S. 28 of Hindu Marriage Act decree of divorce is appealable. Section 28 of the Act is as under:

“28. Appeals from decrees and orders.-

(1) All decrees made by the Court in any Proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeal ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any Proceeding under this Act under Section 25 or S. 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.”

13. This Section 28 may be contrasted with S. 96 of the Code which provides for appeal from original decree, which, in relevant part, is as under:

“96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties.”

14. Rules of procedures are meant to subserve the cause of justice and not to frustrate it. In the present case when fraud has been alleged by the wife in getting the petition for divorce filed through her when she never wanted a divorce and circumstances showed that what she said was prima facie probable and further from circumstance of the case hereinafter pointed out, the High Court in our opinion was not justified in rejecting the appeal without satisfying itself that the requirements of law had been satisfied.

15. Section 23 of the Hindu Marriage Act mandates the Court before granting decree for divorce, whether defended or not to satisfy itself (1) if the grounds for claiming relief exist and the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief, and (2) the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty. A duty is also caste 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. Under sub-sec. (3) of S. 23 of the Act, the Court can even refer the matter to any person named by the parties for the purposes of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all Courts trying matrimonial matters. The judgment of the District Judge is silent if the learned Judge took into consideration all what is mentioned in S. 23 of the Act. A question also arises can a Party defeat the provisions of sub-section (2) and sub-section (3) of S. 23 of the Act by remaining ex-parte and the Court is helpless in requiring the presence of that Party even if the circumstances of the case so required. We are of the opinion that Court can in such a situation require the personal presence of the parties. Though the Proceedings were ex parte in the case like this the Court cannot be a silent spectator and it should itself endeavour to find out the truth by putting questions to the witnesses and eliciting answers from them.[Balwinder Kaur Versus Hardeep Singh-AIR 1998 SC 764 : (1997) 5 Suppl. SCR 202 : (1997) 11 SCC 701 : JT 1997 (9) SC 157 : (1997) 7 SCALE 37]

Jurisdiction of Family Court

(1) Subject to the other provisions of this Act, a Family Court shall

(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.

Explanation. The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.