Court No. 2 v. Ved Prakash Sah

his contention and Sri Jagdish Singh as PW2 who happens to be the official of his hotel. P.W.2 has also stated that very often she used to take liquor while she used to go to the market. His evidence was assailed on the ground that he is the interested witness and employ of the hotel of applicant. In the examination-in-chief as D.W. 1 the Opp.party/appellant has not stated that she did not take liquor in the public places and she never liquor. In her cross-examination, she has admitted that sometimes she used to take liquor so that she could not recollect her mother in her mind. She has also admitted that in the Hindu families the ladies did not take liquor. This admission by D.W.1 clearly fortifies the allegations made by the applicant/respondent. The second ground of the cruelty was alleged in the plaint Opp.party/appellant cohabited applicant/respondent only once during her matrimonial in his house. However, the Opp.party/appellant denied this assertion in her written statement. During the course of cross-examination when a suggestion was put to the Opp.party/appellant that she wants to reside with her mother she did not deny, rather she replied in affirmative. A question was also put to the appellant in cross-examination to the effect whether she intends to go to the house of her husband, she specifically replied in negative. D.W.1 (appellant) had stated in her cross- examination that, **eSa dHkh dHkh liquor ys fy;k djrh Fkh rkfd eq>s eEeh dh ;kn u vk;sA esjh bPNk vius ifr ds lkFk lgokl djus dh ugha gksrh FkhA**

8. This statement clearly reveals allegation made against the appellant by the respondent is proved. If one of the spouses liquor, definitely comes within the definition of the cruelty. The admission as indicated above clearly reveals respondent was subjected cruelty. We completely in agreement with regard finding recorded by trial court. The appellant has not challenged the propriety of the finding recorded by the trial court.

9. The only point contended by learned counsel for the appellant before us was that the Family Court never made any effort to reconcile the matter with the appellant. It was further pointed out that under Section 9 of the Family Courts Act as well as Clause (2) of Section 23 of the Hindu Marriage Act, 1955 and under the provisions of Order 32-A Rule 3 of Civil Procedure Code a duty has been cast upon to the court in the first instance, in every case where is possible to do so consistently with the nature and circumstance of case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceedings. Learned counsel for the respondent refuted the contention and contended that the trial court had made the effort for the reconciliation. The perusal of the order-sheet reveals that the trial court on 20th May, 2000 tried to reconcile the matter. The order of the trial court is as under: ** okn iqdkjk x;kA nksuksa i{k mifLFkr gSaA odhy foi{kh izkIr djkbZ xbZA foi{kh reconciliation okrkZ dh xbZA fnukad 13-06-2000 fu;r fd;k tkrk gSA**

10. The order of the trial court clearly reveals that reconciliation proceedings were conducted thereafter it was fixed on 13.06.2000. Thereafter on

10.11.2003, the reconciliation proceedings were held but it cannot be completed. Thereafter, the joint application for the adjournment was moved and ultimately, the court directed the parties to produce their respective evidence. Perusal of the record reveals that the court has tried to reconcile the matter but it can be inferred reconciliation was not successful in this case. It is also pertinent to mention here that the parties were directed to appear before this Court in person on 05.12.2005. The parties appeared in person before this Court and the Bench reconcile the matter. When reconciliation proceedings were going on, the appellant did not respond the offers of the other party as well as the Court. At the time of appearance of the parties before this Court, it was the appellant was sometimes immersed in herself. While the proceedings were going on, the father of the appellant interrupted the proceedings and the Bench directed him not to interfere. Therefore, the reconciliation could not be successful and the Bench thereafter proceeded to hear the case.

11. Perusal of Section 9 of the Family Courts Act reveals that the word has been used “Family Courts in the first instance where it is possible to do so consistent with the nature and circumstance of the case, to assist and persuade the parties in arriving at a settlement.” A similar provision has been provided in Clause (2) of Section 23 of the Hindu Marriage Act, 1955 and the same provision has been provided under Order 32 –A Rule 3 of the C.P.C.. In the instant case, the effort has been made by the trial court but could not come to any conclusion. Apart this, it is to be considered as to whether the effort for settlement is must even in a case where it is not possible consistently with the nature and circumstances of the case and the parties. The above quoted phrase centrally indicates the Legislative intent that court has to consider the nature of the dispute involved and thereafter to take a decision whether to make an endeavor for the settlement. If during the trial the courts find that there is scope for the settlement it can act in terms of the above provisions of the enactment and thereafter there is positive statutory mandate that notwithstanding nature of the dispute involved a settlement has to be admitted.

12. In view of the above fact, we are of the view that the parties were not in a position to reconcile the matter. Therefore, the contention made by the learned counsel for the appellant has no force.

13. No other point was raised except above. Before parting this appeal we tried to re-appreciate the evidence so justice may be done to the parties. Even though no argument was advanced with regard to the other findings of the fact recorded by the trial court.

14. There is no error in the finding of the trial court. Thus, we are in complete agreement with findings recorded by the trial court.

15. Since we already pronounced operative portion of the order dismissing the appeal on

16.12.2005, we have now given the reasons for the order pronounced. The order impugned is affirmed. No order as to costs. (J.C.S. Rawat, J.) (P.C. Verma,J.) Dated: April 4, 2006 Shiv