Courts can issue NBWs against husband or wife to secure their personal presence in matrimonial proceedings with a view to attempt reconciliation before passing a decree of divorce or judicial separation under the Hindu Marriage Act, 1955, the Supreme Court has said.
The ruling came from a Bench of Justice CK Thakker and Justice LS Panta, which refused to quash the NBW issued against an Italy-based Indian whose wife wanted divorce.
The Bench said the order issuing NBW was in consonance with the Section 23(2) of the Act which cast a duty on the court to explore options for reconciliation before allowing judicial separation or divorce.
According to Section 32(2) of the Act, “Before proceeding to grant any relief under this Act, it shall be the duty of 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 endeavor to bring about a reconciliation between the parties”.
Terming it as a salutary provision exhibiting the intention of Parliament, the Bench said that it required courts hearing matrimonial disputes to first make an endeavour to bring about a reconciliation and one could not question the right of courts to seek personal appearance of the parties to for it.
The husband, Jagraj Singh, had challenged the NBW issued against him by the Punjab and Haryana High Court on the ground that the High Court had exceeded its powers. At the most it could have passed an ex parte order in the divorce case, as personal appearance of the parties was ''not mandatory'' in divorce proceedings, he had contended.
However, rejecting the petitioner’s arguments, the apex court said that upholding his arguments ''would virtually make the benevolent provision nugatory, ineffective and unworkable, defeating the laudable object of reconciliation in matrimonial disputes.''
It further said that ''delicate issues affecting conjugal relations have to be handled carefully and legal provisions should be construed and interpreted without being oblivious or unmindful human weaknesses”.
Singh's wife Birpal Kaur had approached the High Court in 2005 against the verdict of a family court that rejected her divorce petition filed on the ground of cruelty and desertion.
On her appeal, the High Court sought personal appearance of the Italy-based husband to attempt reconciliation. As Singh Singh repeatedly ignored its orders, the High Court in May last year issued an NBW to be executed through the Ministry of External Affairs and the Indian Mission in Italy.
The husband had challenged the HC order before the apex court on the ground that the High Court did not have any jurisdiction to force him to remain personally present during the divorce proceedings as it was not mandatory under the Act. The High Court could have passed an ex parte order without hearing him, he had further submitted.
Dismissing his appeal, the Bench said the approach of a court hearing matrimonial matters has to be more ''constructive, affirmative and productive'' rather than abstract, theoretical or doctrinaire.