BALWINDER KAUR versus HARDEEP SINGH

Citation: [1997] SUPP. 5 S.C.R. 202 · Decided: 18-11-1997 · Supreme Court of India · Bench: SUJATA V. MANOHAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
BALWINDER KAUR 
v. 
HARDEEP SINGH 
NOVEMBER 18, 1997 
B 
[SUJATA V. MANOHAR AND D.P. WADHWA, JJ.] 
Hindu Law : 
Hindu Marriage Act, 1955 .: Sections 9, 13, 23 and 28-Divorce 
C proceedings initiated by wife-Non-appearance of husband-Ex-parte divorce 
decree granted-Appeal by wife before High Court alleging ji-aud committed 
by husband in getting her signature on the divorce petition and that she. 
never intended to seek divorce-Summarily dismissal by High Court-On 
appeal, Held, High Court dismissed the appeal without satisfYing itself that 
D the requirements of law have been satisfied-Failure to exercise power of 
Superintendence under Article 227-Divorce decree set aside-Matter 
remanded to trial Court. 
Marriage betwren the appellant and respondent was solemnised as per 
Sikh rites. After some time differences cropped up between the parties and 
E appellant-wife lodged a complaint with the Senior Superintendent of Police 
alleging that her husband was harassing her. Subsequently a compromise 
was arrived at between the parties with the help of some respectable persons. 
Thereafter respondent filed a petition against the appellant under sec. 9 of 
the Hindu Marriage Act, 1955 for restitution of conjugal rights, which was 
F subsequently withdrawn. Thereafter, the appellant-wife filed a divorce petition 
before the District Judge on the grounds of cruelty and desertion. Respondent 
did not appear and the divorce proceedings went ex-pa rte. An ex-parte decree 
of divorce was granted by the District Judge. 
The appellant-wife preferred an appeal before the High Court under 
G section 28 of the Act on the ground that fraud was perpetrated upon her by 
her husband in getting her signatures on the divorce petition and in bringing 
her to court for recording her statement and she never intended to seek 
divorce from her husband. The said appeal was summarily dismissed by the 
High Court holding that the remedy lies with trial court. Hence the present 
H appeal 
202 
BALWINDER KAUR v. HARDEEP SINGH 
203 
Allowing the appeal, this Court. 
HELD: I.I. The High Court erred in summarily dismissing the appeal 
without satisfying itself that the requirements of law had been satisfied. 
Thus, the impugned judgment of the High Court as well as that of District 
Judge are set aside. 1210-D; 211-DI 
1.2. Under Section 23 of the Hindu Marriage Act, 1955 it was 
mandatory for all the Courts tryin~ matrimonial cases before granting 
decree of divorce, whether defended or not, to satisfy itself (I) if the grounds 
for claiming relief exist and the petitioner is not taking advantage of his or 
A 
B 
her own wrong or disability for the purpose of such relief and (2) the C 
petitioner has not in any manner been accessory to or connived at or condoned 
the act or acts, complained of, or when the ground of the petition is cruelty 
the petitioner has not in any manner condoned the cruelty. 1210cD-EI 
1.3. A duty is also cast on the Court wherever it is possible on the D 
circumstances of the case, to make every endeavour to bring about a 
reconciliation between the parties under sub-section (3) of Sec. 23 of the Act. 
The Court can even refer the matter to any persons named by the parties 
for the purpose of reconciliation and to adjourn the matter for that purpose. 
The Judgement of the District Judge is silent as to whether he took into 
consideration all that is mentioned in section 23 of the Act. 1210-F-Gl 
1.4. Merely because the proceeding were ex-parte 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. If a party 
E 
to defeat the provisions of sub-section (2) & (3) of Section 23 of the Act, F 
remains ex-parte, the Court can in such a situation require the personal 
presence of the parties. j210-G-H; 211-Al 
2. In the instant case, the High Court failed to exercise its power of 
superintendence under Article 227 of the Constitution. The High Court G 
should have seen if the proceedings before the District Judge were in 
accordance with the procedure prescribed and as per the law :ipplicable. To 
direct the appellant to file a separate suit for setting aside the decree of 
divorce on the ground of fraud otherwise is hardly a solution to the case. In 
the circumstances, the matter is remanded back to the District Judge for 
trial of the case afresh. 1211-B-CI 
H 
A 
B 
c 
204 
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R. 

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