Orissa High Court
Smt. Sarojini Ratho vs Bhaskar Ratho on 24 August, 1993
Equivalent citations: AIR1994ORI5, AIR 1994 ORISSA 5, (1993) 2 DMC 432, (1994) 1 HINDULR 668, (1994) 3 CURCC 338, (1994) 77 CUT LT 283, (1994) MARRILJ 148
JUDGMENT S.C. Mohapatra, J.
1. Deprivation of right to claim maintenance from her husband being permanently restrained by trial court is grievance of a Hindu wife in this appeal.
2. Coming from two Brahmin families of Parlakhemundi when it was in Ganjam district, plaintiff and defendant were married in the year 1964. They were blessed with a daughter in 1966. Hardly two years thereafter in December, 1968, plaintiff, her husband accompanied and left her with her parents at Chhatrapur. Returning therefrom he filed a suit for annulment of the marriage or in the alternative, judicial separation on 3-1-1969 at Berhampur. During pendency of the proceeding, father of defendant approached his friends for settlement. It could not materialise. Suit was dismissed on 14-9-1970. Plaintiff negotiated for second marriage and marriage with daughter of one Chintamani Misra was fixed in 1971-72. In or about February, 1972, defendant filed a complaint at Puri against plaintiff and others for commission of offence under Section 494, l.P.C. This criminal case was compounded on 21-6-1973 and that day plaintiff paid Rs. 10,000/-to defendant. When defendant filed an application for maintenance under Section 125, Cr.P.C. at Pariakhemundi, plaintiff filed the suit at Parlakhemundi to declare that the marriage between the parties is void and there is a dissolution of marriage by consent of parties and to restrain defendant from making any claim against plaintiff as his wife.
3. Short case of plaintiff is that per custom prevailing in Brahmin community of Ganjam district, there is a divorce by settlement and plaintiff has paid Rs. 10,000/~ towards permanent alimony of defendant. Short case of defendant is that there is no settlement as claimed by plaintiff that on receipt of Rs. 10,000/- as permanent alimony there would be a divorce. She stated that the amount of Rs. 10,000/- has been received for compounding the criminal case.
4. Plaintiff examined five witnesses as PWs 1 to 5 and proved documents marked Exts. 1 to 7. Two witnesses have been examined as DWs 1 and 2 and two documents have been proved and marked Exts. A and B in support of her case. On consideration of materials, trial court refused to declare that there is a divorce by consent according to caste custom and marriage subsists. However, defendant has been permanently restrained from claiming maintenance against plaintiff as she has received Rs. 10,000/- towards permanent alimony. This is grievance of defendant in this appeal.
5. There is no dispute that wife defendant received Rs. 10,000/- on 21-6-1973 on which day the criminal case under Section 494, l.P.C. initiated by her against her husband and others was compounded. While case of plaintiff is that the amount was a consideration for dissolution of marital relationship between himself and defendant with permanent alimony, case of defendant is that it is a consideration for compounding the offence as per settlement.
6. There is no written document disclosing the term of settlement. Only contemporaneous documents are the receipt (Ext. 3), application for compounding, statement of defendant and the order (Ext. A). Ext. 3 is on a stamped paper purchased at Puri by defendant on 21-6-1973 to which revenue stamps of 20 paise have also been affixed. One of the revenue stamps is refugee relief stamp. From the signature of defendant, it appears that these two revenue stamps were affixed later and crossed in a single cross mark. There is an oblique line drawn from top to bottom below the type written contents covering the vacant space. To the left of the oblique line, three advocates have signed. Words 'Puri' below the signature of first advocate and 'Pattanaik' of the second signature are so placed that they creates an impression that the signatures were subsequent to the putting of the oblique line. Typed contents of Ext. 3 are as follows:
"Ref :-- In the Court of Sub-Divisional Magistrate, Puri. I.C.C. Case No. 110 of 1972.
Received Rs. 10,000/- (Rupees Ten Thousand only) from Sri Bhaskar Ratho and I undertake not to file any such case in future."
Order (Ext. A) does not whisper a word about payment of Rs. 10,000/-. It reads as follows:
"21.6.73. Both parties present and files a petition praying to compromise the case as the matter has been decided amicably between them. They have also another petition with a prayer to compound the case. Special Vakalat also filed. Complainant Sarojini Ratho is present. Her statement is recorded. In view of the compromise petition filed by the petitioners the accused persons acquitted under Section 345(6), Cr.P.C."
7. Reading Ext. 3 impression is created that case of defendant is more acceptable. However, PW 3 who is an advocate of Puri and has not appeared in the case for any of the parties stated that he drafted the receipt and draft was incorporated in the stamp paper. He stated in paragraph 15 of his deposition, "The purpose for which the Rs. 10,000/ - was paid is mentioned in the receipt Ext. 3." However, on further cross-examination, he stated that the same is not the only purpose and explained that the pending case not being a civil case and a case under the Hindu Marriage Act, he did not think it proper and prudent to incorporate in the receipt the other purposes for which money was paid. Exhibit 3 was not filed in the criminal case. It remained in custody of the plaintiff. Explanation of PW 3 becomes difficult to be accepted.
8. Circumstances under which PW 3 came to the picture in the dispute between husband and wife is stated by him. According to him, in month of May, 1973 the criminal case under Section 494, l.P.C. between the parties was fixed. Counsel for both parties filed an application for adjournment on the ground that there was a talk of compromise. Presiding Officer of the Court of Judicial Magistrate 1st Class suggested to both the lawyers that assistance of a third lawyer ought to be taken. At that time PW 3 was in the court room in connection with his own client's case. Lawyers of the parties sought help of PW 3. After coining out of court room, PW 3 asked them in presence of DW 2, father of defendant if there was any feasibility of settlement and come to learn that plaintiffs party was willing to pay Rs. 5,000/- or less whereas the bride's side was insisting for a sum of Rs. 15,000/- or more. The settlement was with regard to dissolution of marriage, future maintenance and compromise of the criminal case. Their daughter's custody was to be with the father. Few days after, PW 3 came to Berhampur to DW 2 with lawyer for the parties and talked with him. DW 2 agreed to the terms of compromise and PW 3 convinced DW 2 to accept Rs. 10,000/- in lieu of dissolution of marriage and future maintenance. DW 2 consented to it provided PW 3 would talk about it with PW 2 since he is well-wisher of DW2. All the three lawyers proceeded to Parlakhemundi. PW 3 met with plaintiff and his father and convinced them to pay Rs. 10,000/- towards dissolution of marriage, future maintenance of defendant and compounding of criminal case. Three lawyers told plaintiff and his father to arrange Rs. 10,000/- by 21-6-1973 to which date the criminal case was posted for trial because the Presiding Officer was very reluctant to give time in that year-old case. Thereafter, they met PW 2 in his residence and appraised him of the settlement agreed upon by the parties. Then they returned to Puri. PW 3 went to Berhampur at his own expense and has no knowledge about the expenses of the other two lawyers. PW 5 stated that the three lawyers who signed Ext. 3 came to Parlakhemundi. Thus, DW 1 who is lawyer of defendant in criminal case did not come. DW ) denies the lawyer who came as lawyer for defendant to Parlakhemundi to have appeared for defendant in the criminal case. He also denies to have any association with that lawyer. According to P W 3, on 20-6-1973 in the evening both parties and their lawyers and their fathers came to his chamber and requested PW 3 to get ready for the compromise on the next day. On 21-6-1973 in the morning they assembled in his chamber. Parties, their fathers, PW 2, PW 4 and two to three others were present. Daughter of plaintiff was also present. Eight terms as stated by PW 3 were announced and were accepted by parties, their fathers, lawyers and also by others who were present there. Defendant and her father went to get a stamp paper. Amount of Rs. 10,000/- given by plaintiff was counted on the table and handed over to defendant. After that she executed the receipt on stamp paper which was drafted by PW 3 and got typed. PW 3 and the other two lawyers attested. Receipt was passed to plaintiff. In presence of PW 3 the amount was deposited by defendant and her father in fixed deposit in State Bank of India. DW2 requested PW 3 to arrange a suitable match for defendant. Very day criminal case was compounded and PW 3 heard that two days after the settlement plaintiff married.
9. PW 3 is a lawyer of Puri. He claims to have rung the final bell. He came in picture when, according to him, there was a settlement in respect of custody of child, divorce and permanent alimony. Only difference was in respect of the quantum of alimony. His statement that on suggestion of the Presiding Officer to the lawyer of accused, he was approached as he was available in court. PW 3 was hardly aged 33 years. He had only three years practice at Puri by that time. There is no evidence of his reputation of being experienced in conciliation in matrimonial matters. DW 1 stated that he was the lawyer for defendant in criminal court. DW 2, father of defendant accepted it. This DW 1 is of equal age as of PW 3 but his experience in Puri Bar is more. These facts go unchallenged. Unless by valid order of court a member of the Bar who has right of preaudience either on account of his seniority or statutory status is compelled to surrender the same, ordinary professional courtesy requires a junior to approach the senior on account of normal right of pre-audience. There is no material on record to come to conclusion that DW 1 surrendered such status. DW 1 has stated that PW 3 did not come in the picture at all and he took the active role for settlement which was to the effect that in lieu of Rs. 10,000/- being paid, the criminal case would be compounded becomes more acceptable.
10. PW 3 does not appear to have sufficient experience in law. When marital tie was to be broken in lieu of money, PW 3 ought to have examined whether the same would be possible without intervention of matrimonial court. He has knowledge that the Hindu Marriage Act is in force. He ought to have been satisfied that custom of divorce by mutual consent without intervention of court is permissible in Brahmin community of Ganjam district. A word has not been breathed by him in this respect. Even if it was possible, he should have taken note that even under the Hindu Marriage Act, divorce by mutual consent is not recorded immediately the fact is brought to notice of the court. In the minimum the spouses are to wait for six months. PW 3 being a lawyer ought to have taken note of the fact that in respect of dealing with ladies, courts become very scrutinising and have gone to the extent of presuming fraud, undue influence and coercion. PW 3 had not seen defendant in the month of May, 1973 when, according to him, lawyers of parties approached him and in presence of DW 2 stated that there is already settlement for divorce. Shortly thereafter, he proceeded to Berhampur. He did not take any step to ascertain wish of the defendant herself. He was satisfied by convincing DW 2 who was not the person to be divorced. He never tried to meet defendant at Berhampur where he went by meeting his own expenses as claimed by him. Although he went with the other two attestors to Ext. 3, he is ignorant how they went. Unless a person is completely selfcentred, it is difficult to accept that when three persons go together with the same object to the same place, one would not know the details of the other. PW 3 has not stated details about food and lodging at Berhampur. He also does not speak how they proceeded to Parlakhemundi. PW 2 stated that the three lawyers met him in the evening. If that be so, they must have stayed at Parlakhemundi. Where they stayed and spent the night is not disclosed. Other two lawyers have not been examined to corroborate PW 3. In such circumstances, though PW 3 is a lawyer and claims to have acted philanthropically, I have my own doubts about the truthfulness of his version about the role played by him.
11. PW 3 being a lawyer ought to have examined whether settlement of divorce with mutual consent without intervention of court is effective in this case. He ought not to have remained satisfied that the same is already settled. Bare knowledge of Hindu Personal Law would have satisfied him that divorce was unknown before the Hindu Marriage Act, 1955 and only among Sudras where a custom was prevalent, there could be a divorce which is an exception. It does not appear that he had even given a passing thought over the same. Assuming that such divorce is possible, a pious man as PW 3 intends to be depicted to be, normal action would have been to unite the separated spouses and not to erect a permanent wall of separation as quickly as possible. He has not taken note of status of plaintiff and defendant. They are young in age to cover a long distance in their marital lives with a daughter already born deprived of company of mother. She is wife of a lecturer with high hopes of a marital status. Lifelong she would be satisfied with Rs. 10,000/- only to earn interest of Rs.60/- to Rs.80/- per month. Parents would not always be available to give her support. Brothers may not take care of her, PW 3 has not given an idea in his evidence to fix the compensation for a married lady with a lecturer husband at Rs. 10,000/- only. Where would she stay, what would be the expenses for food and clothing, how can she meet the expenses when she would be ill. are not taken note of by PW 3. Only ability of plaintiff and his father was the consideration with PW 3. I cannot blame PW 3 who does not appear to have enough experience in life whether socially or professionally. He did not appreciate that by his fixing the amount to be agreed to by parties, he is becoming cause of ruin to a married girl of young age for benefit of a lecturer who has already settled to marry again even if he is not married by that time after getting an acquittal. According to PW 3, in month of May, 1973 he was approached and in the same month he could convince father of defendant on one side and plaintiff and his father on the other side to a sum of Rs. 10,000/-. Action of PW 3 even if accepted appears to be too hasty to favour plaintiff and other accused persons. Only because of this, he appears to have avoided DW 1 to keep him at a distance with two other lawyers.
12. P W 3 cannot also be believed when he avoided to incorporate the terms settled in Ext. 3. He claims to have prepared a draft. Said draft is not forthcoming and no acceptable explanation is there about the draft. If Ext. 3 would have been produced in criminal court, explanation of PW 3 that he did not feel it necessary to incorporate other terms, might have some weight for consideration. It was not filed in criminal court, added to it, he states that the eight terms were announced and were accepted by the parties, their fathers, lawyers and consented to by others who were present there. Except this single sentence there is no other details about acceptance of terms by defendant. PW 3 does not state that defendant accepted the same with open mind voluntarily. When a lady gives her consent courts become scrutinising to be satisfied that it is voluntary in nature without any influence. PW 3 ought to have taken steps to ascertain the views of defendant in absence of others. Following her father to purchase a stamp paper cannot be a circumstance to come to conclusion that she voluntarily accepted the terms. If in presence of many persons, a lady does not speak out her mind openly, it cannot be stated to be voluntary acceptance of terms. When Ext. 3 the contemporaneous document spells out the purpose of payment of Rs. 10,000/- was to compound the criminal case and not to file such case again, I am inclined to accept defendant's case that the amount was paid for that purpose only and there was no other term of settlement which are attempted to be introduced by oral evidence. Truth is the first casualty in this case and suppressions and coloured versions have dominated the adjudication.
13. Trial court held that for compounding an offence, a huge amount of Rs. 10,000/-is much in excess. I am not inclined to accept the same. Defendant had already faced a litigation at Berhampur for a long time. Puri criminal case was continuing for a year. If details are accounted for, the amount would not be a small amount. With that the case was compounded where plaintiff was to get the benefit. In such circumstances, amount of Rs. 10,000/- as a consideration for compounding as reflected in Ext. 3 is reasonable amount.
14. Trial court has already held that marriage between plaintiff and defendant is not dissolved which continues. Effect of second marriage of plaintiff is not a subject-matter of consideration of this appeal which will be considered when it arises. 1 am satisfied that an amount of Rs. 10,000/- was received only for compounding the offence and for no other purpose. Therefore, plaintiff is not entitled to get refund of the amount. Said amount will not be a matter for consideration while determination of the question of maintenance of defendant who is admitted to mental hospital during pendency of the suit. Liability of plaintiff continues to maintain his wife which includes her treatment also.
15. In result, appeal is allowed. Suit is dismissed with costs throughout.