As observed by this Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90, conjugal rights are not merely creature of statute but inherent in the very institution of marriage. In R.V.S.L. Annapurna v. R. Saikumar, (1981) Suppl. SCC 71, there were matrimonial problems between the husband and the wife. The Court observed that the two young persons had led to more than one litigation. The Court felt that such a case should not be driven to a ‘bitter legal finish’. On the contrary, every possible effort must be made so as to restore the conjugal home and bring back harmony between the husband and the wife. The Court appreciated the efforts made by learned counsel for both the sides and after some amount of discussion, persuasion and suggestion, the husband and wife agreed to live together in a separate house. The Court stated that they would live together for one month jointly on a trial basis and parents or grant parents of both the spouses would not, for the time being, visit them. The Court stated; “Not that we are suggesting that parents or grandparents should not under any circumstance visit their children or grandchildren, but we are making an experiment in creating mutual confidence and in that endeavour even possible irritations and misapprehensions should not be allowed to vitiate the atmosphere. Solely on that basis and without casting any reflection on any person, we have made the suggestion, which is acceptable to both sides. Therefore, within this provisional period of one month the husband and wife will live together, hopefully happily without their parents or grandparents visiting them during this spell”.
15. The above decisions of this Court make it more than clear that the approach of a Court of law in matrimonial matters is much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire. Matrimonial matters must be considered by courts with human angle and sensitivity. Delicate issues affecting conjugal relations have to be handled carefully and legal provisions should be construed and interpreted without being oblivious or unmindful of human weaknesses. Probably, this aspect has been kept in view by the Legislature in enacting sub-section (2) of Section 23 of the Act by requiring a court to make all efforts to bring about reconciliation between the parties.
16. Though there is no direct decision of this Court on interpretation of Section 23(2) of the Act, various High Courts have interpreted the said provision.
17. Before more than four decades, in Jivubai v. Ningappa, AIR 1963 Mys 3, the High Court of Mysore stated; “There can be no doubt that a duty is laid on the Court to make every endeavour to bring about a reconciliation between the parties whenever the nature and the circumstances of the case permit it to do so”. Failure of the trial Court to make such effort does not mean that appellate Court at a later stage should not undertake such exercise. “The intention of the provision undoubtedly is to render all possible assistance in the maintenance of the marital bond and if at any stage of the case the circumstances are propitious for reconciliation it will be the Court’s duty to make use of such circumstances irrespective of the stage”. If no endeavour had been made by the Court, it will undoubtedly be a serious omission.
18. In Chhote Lal v. Kamla Devi and Ors., AIR 1967 Patna 269, the High Court of Patna held that sub-section (2) of Section 23 of the Act enjoins upon the Court a duty to make a sincere effort at reconciliation before proceeding to deal with the case in the usual course. It was observed that in order that the requirement of making ‘every endeavour’ is fulfilled, it is at least requisite that the court should have a first hand version. Such first hand version, obviously, can be had if the parties are present before the Court. In such a situation, the Court would be in a position to appreciate what really had led to the estrangement between the husband and wife.
The Court stated :
“A perusal of sub-section (2) of Section 23 of the Act leaves no room for doubt that even where the estrangement between the parties to the marriage might seem to be acute, it is the duty of the court to make every endeavour to bring the parties to reconciliation. Of course, the court cannot help, if in spite of its endeavour no reconciliation can be brought about, but every endeavour in that direction has got to be made in cases of this nature”. (Emphasis supplied)
19. In Raghunath v. Urmila Devi, AIR 1973 Allahabad 203, construing Section 23(2) of the Act, the Court held that the effort of reconciliation is to be made by the Court right from the start of the case and not only after the closure of final hearing of the matter and before the Court proceeds to grant relief under the Act. It was also observed that the Court should not give up the effort for reconciliation merely on the ground that there is no chance for reconciliation. It was held that since the matter is very much personal to the parties, their appearance in person before the Court is all the more essential while the Court proceeds to bring about reconciliation between them. It is the duty of the Court to make sincere endeavour at reconciliation. In that case, the Court ordered the parties to remain personally present. On the adjourned day, however, counsel for the wife stated that there was no possibility for reconciliation whereupon the Court ordered that the attendance of wife would not be necessary and recalled the previous order. Setting aside the order, the High Court observed:
“This was clearly not in consonance with the provisions of sub-section (2) of Section 23 of the aforesaid Act. The Court below did not direct the opposite party No.1 to appear in person and state about that fact nor did it ask for her personal affidavit. In my view, the requirements of the law were not complied with and the Court below failed to perform its duty laid down in the aforesaid provision of the Act”. (Emphasis supplied)
20. In Jaswinder Kaur v. Kulwant Singh, AIR 1980 PandH 220, a similar view was taken by the High Court of Punjab and Haryana. It was observed that an attempt for reconciliation between the parties should be made in the beginning and not at the end. It was indicated that the matrimonial Court, beside being a Court of law, has to decide matters and grant relief thereon in a very sensitive field. It is for the Court to choose, with or without the suggestion of the counsel or the parties, the time at which reconciliation, wherever possible and whenever consistently with the nature and circumstances of the case, should be attempted.
21. In Smt. Manju Singh v. Ajay Bir Singh, AIR 1986 Delhi 420, it was observed that the Court should try first for reconciliation. If an endeavour of reconciliation is not made, the order would be illegal.
22. In Sushma Kumari v. Om Prakash, AIR 1993 Patna 156, it was held that the duty is cast on the Court to take steps for reconciliation between the parties, though non-observance of endeavour for reconciliation would not make the order of the Court without jurisdiction. But in that case the defect can be rectified by the appellate Court.
23. From the above case-law, in our judgment, it is clear that a Court is expected, nay, bound, to make all attempts and endeavours of reconciliation. To us, 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 learned counsel for the appellant, therefore, cannot be upheld. [AIR 2007 SC 2083 : (2007) 2 SCR 496 : (2007) 2 SCC 564 : JT 2007 (3) SC 389 : (2007) 3 SCALE 150]