Sidharth Vs Smt. Kanta Bai

Citation: Sidharth vs Smt. Kanta Bai, AIR 2007 MP 59

Date of judgement: November 14, 2006

Equivalent citations: AIR 2007 MP 59

Case No.: Writ Petition No. 15341/2005

Case type: Writ petition

Petitioner: Sidharth

Respondent: Kanta Bai

Bench: Hon’ble Justice D Misra and Hon’ble Justice S. Sinho

Court: High Court of Madhya Pradesh

Statue Referred:

• Hindu Marriage Act, 1955
• Sections 23, 24, 25, 26

Cases Refereed: 

• Jagdish Chandra Kulshrcstha v. Pramod Kumari 1993 MFJR 455
• Kesavrao v. Tihalibai 2003(1) M.P.H.T. 5 (NOC)
• Union of India v. Filip Tiaga De Gama of Vedem Vasco De Gama SCC p. 284

Facts:

• This case invokes the special and inherent Jurisdiction of this Court under Article 227 of the Constitution of India.
• The Petitioner challenged the defensibility and validity of the order dated 24-1-2004 and 13-8-2006 issued in Civil Action No. 81A / 04 of the Second Additional District Judge Chhindwara in Exhibit P5, and requested the issuance of an adjustment order to revoke the herself.
• The petitions were submitted to the learned Judge, requesting that the second wise additional district judge, Chhindwara, wrongly instructed the petitioner’s husband to pay one thousand rupees on the basis of the necessary reparation by temporary maintenance from the date of your order and rupees.
• 1000/- Rupees is used for litigation costs and is paid for each day of hearing according to the preferred application under Section 24 of the Hindu Marriage Act 1955.
• The second order dated 13-8-2005 was a request for revision of the original order and the order was rejected.

Issues involved:

• Whether a regulation is mandatory or discretionary depends on the intention of the legislator, not on the language of intention.
• Whether Section 23(2) can ever be regarded as mandatory in absolute terms.

Contention of Petitioner:

The counsel for the petitioner contended that:

1. The petitioner husband argued that the court made a serious mistake in allowing temporary alimony and the costs of the litigation, instead of conciliating in the first instance in accordance with the mandatory requirement of Section 23 (2) of the Law.
2. Therefore, the command he gave was nothing more than a refuge from evil.
3. The inherent method of prohibition gives artificial meaning by resorting to inadmissible methods of interpretation.
4. The Learned Advocate contended that the proposes of marriage is sacred and inviolable.
5. Mr. Asati urged that the terms “Any” and “First instance” used in Section 23 (2) must be interpreted strictly, and there is no room for evasion in the interpretation “strictly”.
6. In their additional declaration, if the request is accepted under Section 24 of the Law and the beneficiary is allowed, either spouse will be deceived to delay the litigation contrary to the spirit of the Law.
7. Learned Counsel held that the role of the Judge who decides on matrimonial matters is different from that of the authorities authorized to mediate under the Industrial Conflicts Act of 1947, because the first bill deals with sensitive human issues.
8. It was also argued that the main steps of reconciliation should be put first before determining alimony and litigation costs.
9. The council also submitted that parliament has used the word “Should” wisely and without ambiguity. It should be considered mandatory for all purposes.
10. It was proposed that if the term “Reparation” used in Section 23(2) were considered as a settlement, it would be a curse on the concept of “Reparation” because it was never the intention of the legislator.
11. Council further argued that in any accompanying consequence, the terms “Shall” and “Any” used in the clause would not make the clause binding on its own.
12. It was also argued that the word “Anyone” does not include everything under all circumstances, and may be read narrowly depending on the context, the subject of the rule, and the purpose behind the rule.
13. The advocate further argued that Section 24 has its own purpose. It is an authorization clause that authorizes either spouse to survive and defend themselves from litigation, unless an economically capable benefit grants a defence, which is otherwise deserved.
14. He urged that the determined construction and harmonious reading of these two sections should be a guarantee for the promotion of justice and the realization of the legislator’s intention.

Contention of Respondent:

Counsel for the Respondent contended that:

1. The statement presented by an experienced lawyer by the Respondent that the act is a relevant fact and must be considered complies with this provision, because the expression in Section 25 is different from that of Section 24.
2. Section 25 uses phraseology, that the behaviour of the parties and the circumstances of the case. There is no such wording in section. If it does not exist, adding the above concept to it on the basis of the discretion of the court will infringe the legislative field.
3. If it is given the limited discretion, a wider extension has been built and lawyers seek It became a pyramid-shaped building academically, because the defendant had no legs to stand on and was destined to fall.

Judgement:

The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phraseology of the provisions, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other.

Dwelling upon various aspects, the court observed that,

(i) Section 24 of the Act fundamentally deals with an ancillary or incidentally relief and is an enabling provision to empower either of the spouses to put forth the defenses in the main proceeding.

(ii) Section 23(2) and Section 24 co-exist in harmony and in fact, if the context and subject matter are appreciated in proper perspective, there is no anomaly in between the two provisions.

(iii) Section 23(2) is not mandatory and does not operate in absolute terms.

(iv) Any order passed without compliance under Section 23(2) as has been held in the case of Dharmendra Kumar would be an irregular and not in illegality.

(v) An order under Section 24 can always to be passed without taking steps for bringing out reconciliation under Section 23(2) of the Act for the timing to make efforts for reconciliation is in the discretion of the Court.

(vi) Grant of pendente lite maintenance under Section 24 of the Act is not to be construed in a narrow compass as the Court has jurisdiction to pass the order arises at the stage of institution of proceedings and continues till the proceeding is concluded.

(vii) The maintenance and the entitlement under Section 24 of the Act can be made available even in a proceeding pertaining to setting aside of an ex parte decree and restoration of the main suit.

(viii) The judgment delivered in the case of Kesav Rao (supra) does not lay down the correct law and any judgment following the said decision should be deemed not to have lay down the law correctly.

(ix) ‘Any relief’ that has been used in Section 23(2) would not cover an incidental and ancillary relief during the proceeding as that has to be construed in broader canvass and would include only substantive relief and further if there is non-compliance of the same, it would amount to an irregularity and not an illegality and such irregularity is rectifiable at the Appellate stage and would not render the judgment or an order a nullity.

(x) As we have concurred with the view rendered in the case of Dharmendra Kumar, there is no need to refer the matter to a Larger Bench.

Ratio Decidendi:

• The problem is that after the husband obtained the divorce judgment. The non-applicant wife filed an application under rule 13 of Order 9 of the Code to abolish the divorce judgment and application filed under Section 5 of the Limitation Act.
• During the trial process, a request for alimony and litigation fees was filed in accordance with Section 24 of the law. The experienced trial judge was present. The court refused to intervene in the Civil litigation.

Obiter dicta:

N/A

Conclusion:

• There are serious and compelling reasons, the court’s exercise of a party’s rights under Section 24 shall not be hindered. The lawsuit filed under Section 24 is a summary procedure and the scope of investigation is limited. The goal to be achieved is to eliminate the disability of the party who does not have enough income through this section.
• The purpose of Section 24 will be frustrated by any unreasonable delay by the deciding party, which will hinder the attempted settlement. It is also based on reciprocity, mutual respect and dignity.

Drafted by: Bharti verma, Chanderprabhu Jain college of Higher studies and school of law

Edited By: Tanvi Mahajan, Publisher, Law Insider

Published On: February 11, 2022 at 22:30 IST