LexJAGRAJ SINGH versus BIRPAL KAUR
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JAGRAJ SINGH
v.
BIRPALKAUR
FEBRUARY 13, 2007
[C.K. THAKKERANDLOKESHWARSINGHPANTA,JJ.]
Hindu Marriage Act, 1955; ss. 13, 23(1)(2) and (3)/Code of Civil
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Procedure, 1908; 0.1/I R.I; 0.IX R.2; O.XXXJJ-A R.3:
Divorce-Restitution of corijugal rights-Role of trial Court-Presence
of parties in Court on date of hearing-Necessity of-Held: In appropriate
case, a Civil Court may direct a party to the suit to appear in person-
Approach of Court of Law in matrimonial cases must be constructive, affirmative
and productive-Such matter must be considered by Courts with human
D angle and sensitivity-Delicate issues affecting conjugal relations have to be
handled carefully-Legal provisions should be construed and interpreted
without being oblivious or unmindful of human weaknesses-Court of Law
to make efforts to bring about reconciliation between the parties in terms of
s.23(2) of the Act-In the instance case, no such efforts made by trial Court-
Though issue of jurisdiction decided against the petitioner-wife yet trial
E Court preferred to decide the petition on merit against the settled law on the
issue, which could not have been done-Despite interim stay granted against
issuance of non-bailable warrants, the husband continued to disobey and
flout the order passed by the Court-Therefore, he cannot claim as of right
the equitable relief from this Court--{;onstitution of India, 1950-Article
F 136.
Marriage of the appellant-husband and respondent-wife was solemnized
on July 6, 1993 and a son was born out of the wedlock, but he died. In the
meantime, relations between them became strained and respondent-wife filed
a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 on
G the gr.ound of desertion and rruelty. The Trial Court went on to enter into
merits of the matter and held that the husband neither treated the wife with
cruelty nor deserted her. Therefore, the wife was not entitled to a decree of
divorce. Aggrieved thereby, the wife preferred an appeal before the High
Court. The High Court, in order to bring out reconciliation between the parties,
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JAGRAJ SINGH v. BIRPAL KAUR
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directed both the parties to remain present in person on the date of hearing. A
The Power of Attorney of the appellant-husband stated that he would positively
remain present in Court on the next date of hearing, he however did not appear
even on that day and the case was adjourned again and again. On May 4, 2006,
the High Court directed that non-bailable warrant be issued to the respondent-
husband. Hence, the present appeal filed by the husband.
Appellant-husband contended that the High Court had no jurisdiction
to issue direction to him to remain personally present in the Court and non-
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bailable warrant for non-appearance of parties under the Act could not have
been issued. By doing so, the Court had exceeded its power, authority and
jurisdiction; that the personal appearance of the party to the proceeding is C
not mandatory, and at the most the Court may proceed to consider the matter
ex parte.
Respondent-wife submitted that the order is interim in nature which
does not call for interference by this Court in the exercise of discretionary
jurisdiction under Article 136 of the Constitution; and that the Court has D
authority to direct personal presence of the parties and no objection can be
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raised if such direction is issued.
Dismissing the appeal, the Court
HELD: 1. Bald assertion of the appellant-husband that no Court of law E
can direct a party to remain personally present cannot be accepted. Apart from
the matters under the Hindu Marriage Act, even in civil matters also, a Court
of law may order either the plaintiff or the defendant to remain personally
present in Court. 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
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an advocate. Proviso to the said rule however, declares that any such F
appearance shat~ 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. (Para 11] (501-B, F, G, H]
2.1. Approach of a Court of law in matrimonial matters is much more G
constructive, affirmative and productive rather than abstract, theoretical or
doctrinaire. Matrimonial matters must be considered by courts with human
i:ngle and sensitivitExcerpt shown. Read the full judgment & AI analysis in Lexace.