J&K High Court Faults Trial Court for Skipping Reconciliation in Divorce Case, Orders Mediation First

Justice Rahul Bharti directed the Principal District Judge, Samba to attempt reconciliation before proceeding on a divorce petition, faulting the court for bypassing Section 23(2) of the Hindu Marriage Act and for using the wrong court designation in its orders.

The High Court of Jammu & Kashmir and Ladakh, exercising supervisory jurisdiction under Article 227 of the Constitution of India, has set aside the procedural course adopted by the court of the Principal District Judge, Samba in a divorce petition. Justice Rahul Bharti, sitting singly at Jammu, found that the trial court had proceeded directly to the stage of filing reply and objections without first attempting reconciliation or mediation, as required under Section 23(2) of the Hindu Marriage Act, 1955 and the spirit of Order 32-A of the Code of Civil Procedure, 1908. The High Court disposed of the petition filed by Kanchan Devi and directed the trial court to undertake a reconciliation exercise before taking up the matter for adjudication on merits. The order also flagged a recurring error in which the trial court had signed its orders under the designation of “Principal Sessions Judge” rather than “Principal District Judge.”

The Dispute Before the High Court

Kanchan Devi and Amit Sharma had married on 18 July 2024 under Arya Samaj rituals and customs, a marriage they entered into by their own choice notwithstanding their caste status. The marriage is said to have broken down, leading Amit Sharma to file a divorce petition under Section 13 of the Hindu Marriage Act, 1955 before the court of the Principal District Judge, Samba on 21 July 2025. Kanchan Devi was summoned and her counsel entered appearance on 5 August 2025.

The trial court then proceeded to call for reply and objections from Kanchan Devi. By an order dated 6 April 2026, the trial court gave her a last opportunity to file her reply, with a rider that failure to do so would result in her right to file reply-cum-objections being deemed closed. No reconciliation or mediation exercise was undertaken at any point before this stage.

Aggrieved by this approach, Kanchan Devi approached the High Court through CM(M) No. 85/2026, represented by Mr. Amit Gupta, Senior Advocate, with Mr. Rajeev Chargotra, Advocate.

The Statutory Duty the Trial Court Overlooked

Section 23(2) of the Hindu Marriage Act, 1955 casts a specific duty on the court, before proceeding to grant any relief, to make every endeavour to bring about a reconciliation between the parties where it is possible to do so having regard to the nature and circumstances of the case. Order 32-A of the Code of Civil Procedure, 1908 similarly requires a court dealing with a suit or proceeding relating to matters concerning the family to make an endeavour at the first instance to assist the parties in arriving at a settlement.

Justice Bharti found that none of the orders on the file reflected any thought given by the Principal District Judge, Samba towards a reconciliation exercise. The court had instead moved directly to the adversarial mode of inviting reply and objections, and had even threatened to close the respondent's right to file them.

The High Court reasoned that insisting on a reply to a divorce petition would require the wife to come forth with her version against the allegations made by the husband seeking divorce. That exercise, the Court held, would not smoothen the strained relationship between the parties. Any reconciliation attempt undertaken after such an exchange would be, in the Court's words, “nothing but a meaningless venture.” The first initiative for reconciliation, the Court emphasised, must be taken at the very inception of matrimonial litigation, when the respondent first gets a call to appear.

The Wrong Court Designation

Justice Bharti also addressed a separate but recurring problem. The trial court's order dated 6 April 2026 bore the court reference under the designation of “Principal Sessions Judge, Samba” rather than “Principal District Judge, Samba.” The High Court pointed out that a Principal Sessions Judge has no jurisdiction to entertain a matrimonial petition under the Hindu Marriage Act, 1955. That jurisdiction vests in the Principal District Judge.

The Court noted that it has, on a number of occasions, reminded Presiding Officers of courts below that they must maintain a clear distinction between civil and criminal jurisdiction when referring to their court's nomenclature in orders. A court exercising civil jurisdiction must be referred to by its civil designation, not its criminal one.

To address this systemic issue, Justice Bharti directed the Registrar General of the High Court of Jammu & Kashmir and Ladakh to issue a communication to all Presiding Officers of courts below — civil as well as criminal — directing them to ensure sensitivity towards the correct reference of their court in the context of the jurisdiction being exercised.

Supervisory Jurisdiction Exercised Without Summoning Respondent

The High Court exercised its supervisory jurisdiction under Article 227 without requiring Amit Sharma to appear in the proceedings. Justice Bharti recorded that there was no requirement for the respondent to appear and join the issue in the present case.

The Court's intervention was directed entirely at correcting the procedural course adopted by the trial court, not at adjudicating the merits of the divorce petition itself.

Order

The High Court disposed of CM(M) No. 85/2026 with the following directions:

• The court of the Principal District Judge, Samba is directed to first undertake an exercise for reconciliation or mediation.
• Only in the event of failure of that reconciliation exercise shall the trial court take up the matter for adjudication on merits.
• It is only at that stage, after reconciliation has failed, that Kanchan Devi may be put to an opportunity to file her reply and objections to the divorce petition.
• The Registrar General, High Court of Jammu & Kashmir and Ladakh, is directed to issue a communication to all Presiding Officers of courts below regarding the correct use of court designations in orders.
• A copy of the order is to be forwarded by the Registrar Judicial, Jammu to the court of the Principal District Judge, Samba and to the Registrar General.

The order is marked as speaking and reportable.