Jammu & Kashmir High Court
Joti Sharma vs Rajinder Kumar on 30 October, 2006
Equivalent citations: AIR2007J&K35, 2007(1)JKJ5, AIR 2007 JAMMU AND KASHMIR 35, 2007 (3) ALJ (NOC) 498 (J. & K.) = AIR 2007 JAMMU AND KASHMIR 35, 2007 AIHC (NOC) 334 (J. & K.) = AIR 2007 JAMMU & KASHMIR 35 2007 (3) AKAR (NOC) 353 (J. & K.) = AIR 2007 JAMMU & KASHMIR 35, 2007 (3) AKAR (NOC) 353 (J. & K.) = AIR 2007 JAMMU & KASHMIR 35
JUDGMENT Bashir A. Kirmani, J.
1. The marriage between petitioner and first respondent was solemnized in 1995 and out of wedlock two children were born, in February, 2000 respondent filed an application for dissolution of marriage under Section 13 of Hindu Marriages Act (hereinafter called as "the Act") which was contested by parties till 21st January, 2004 when they filed a joint application under Section 15 of the Act for divorce by mutual consent. On the same day on request of appearing counsel, learned trial Judge (Additional District Judge, Matrimonial/Cases, Jammu) referred the matter for settlement to Lok Adalat which was constituted on 27.1.2004. In acceptance of the joint request for divorce by mutual consent the Lok Adalat awarded a divorce decree while allowing custody of children to remain with respondent-father.
2. Aggrieved by award of Lok Adalat, the petitioner has instituted this writ petition to have the same quashed on the grounds that respondent threatened and coerced her into signing the petition for divorce by mutual consent and won over her Advocate to manage the impugned award from concerned Lok Adalat, which was bad for want of proper observance of the requirement of Section 15 of the Act, besides being incompetent for want of jurisdiction on past of Lok Adalat to take cognizance of the matter. It is also alleged that even the reference made by learned trial Judge to Lok Adalat was bad because with presentation of the allegedly consented application for divorce no dispute survived between the parties which could be referred for settlement. Materials appended with memo of petition are the copies of impugned order and statements of parties as recorded by Lok Adalat and other applications purporting to have been filed before the trial court from time to time.
3. In his counter affidavit the respondent while taking preliminary objection to maintainability of the writ petition has pleaded that the Lok Adalat is not amenable to writ jurisdiction of the High Court. Denying that respondent pressurized petitioner for filing the joint application for divorce by mutual consent he further pleaded that since their marriage had totally broken down with differences between them having aggravated to the point of no return the parties were locked in litigation, which persuaded both of them to opt for dissolution of marriage and accordingly they filed a petition for divorce by mutual consent before the trial court, who rightly referred the matter to Lok Adalat which in exercise of its jurisdiction passed the impugned award in accordance with law. It is also alleged that petitioner has suppressed certain facts particularly the one relating to receipt of amount by her under the impugned award and had, therefore, not come to the court with clean hands.
4. In her rejoinder to respondent's counter affidavit the petitioner has further contended that the Lok Adalat is amenable to writ jurisdiction of the High Court particularly in cases where its awards result in miscarriage of justice, and that by leveling false factual allegations against her, the respondent had tried to take the matter in the realm of intricate facts which did not attend the matter in its essence. In addition she has controverted all factual plea taken by respondent in the counter affidavit. During course of arguments, learned Counsel have reiterated the contents of their pleading with reference to annexures on record.
5. I have heard learned Counsel and considered the matter. Within the given frame of conflict as projected at bar, the questions that arise for determination are: First, whether any dispute between the parties survived after presentation of the joint petition before trial court, and whether it was proper for learned trial Judge to have referred the matter to Lok Adalat; Secondly, whether it was proper for Lok Adalat to pass a decree immediately after acceptance of application for divorce by mutual consent without waiting for the statutory waiting period of six months in terms of Section 15 of the Act, and thirdly, whether an award/decree passed by Lok Adalat would be amenable to writ jurisdiction of the High Court; On answer of the questions depends the outcome of this petition. .
6. To start with it would be apt to first consider the amenability of Lok Adalat to writ jurisdiction of this Court for judicial scrutiny of the decisions arrived at by it in a particular case. In this behalf it would be appropriate to mention that Lok Adalats' are constituted under Chapter VI of the Legal Services Authorities Act of 1997. This Chapter comprises of four Sections 18 to 21. Section 18 provides for organization of Lok Adalat by prescribing that State Authority or a District Authority or the High Court Legal Services Committee or a Tehsil legal service committee as the case may be, may organize the Lok Adalats at such intervals or places as it thinks fit, for specific areas to be specified by the concerned authority which may consist of serving or retired Judicial Officers and other suitable persons, and shall have jurisdiction to determine disputes or to arrive at compromise or settlement between the parties in respect of any case pending before any Court or which is otherwise brought before it except the offences not compoundable under any law. Section 19 covers cognizance of cases by Lok Adalats and the procedure to be adopted by them for settlement of disputes. Sub-section (4) of Section 19 very clearly provides that while determining any reference before it under this Act or to arrive at compromise or settlement between the parties, the Lok Adalat shall be guided by the principles of justice, equity, fair play and other legal principles whereafter it shall make an award in terms of Section 20 which shall be deemed to be a decree of Civil Court or as the case may be, an order of any other court, final in the nature and binding on all parties to the dispute and no appeal shall lie to any Court against the award.
Under Section 21 a Lok Adalat while acting under the Act has all the powers vested in a Civil Court under Civil Procedure Code in respect of summoning, and enforcing attendance of witnesses and their examination, discovery and production of documents, reception of evidence on affidavits, requisition of records and other matters those may be specifically prescribed. For its broad functioning the Lok Adalat is within its powers to specify its own procedure for determination of any dispute coming before it. Under Sub-section (3) thereof, all proceedings before, Lok Adalat are deemed to be judicial proceedings for purposes of certain provisions of Criminal Procedure and Ranbir Penal Code etc. It thus transpires that Lok Adalat is a creation of Legal Services Authorities Act whereunder it comes into existence and its powers/functions and mode of functioning are all prescribed thereunder which sufficiently clothes it with all the attributes of a statutory authority in tribunal constituted under a statute and is as such deemed to be amenable to writ jurisdiction of the High Court, wherefrom it necessarily follows that award passed by Lok Adalats are open to judicial scrutiny in exercise of writ jurisdiction, particularly for want of any other alternative remedy much less an efficacious one, so much so that even an appeal against an award of Lok Adalat is expressly prohibited under Sub-section (2) of Section 20 aforesaid. In addition to that in order to prevent the Lok Adalat from becoming susceptible to any trends of arbitrariness for want of a statutory/appeal remedy against its awards, it is necessary that the writ jurisdiction of High Court takes awards passed by Lok Adalat within its fold. The only consideration which appears to be contrary to that view is an apprehension that amenability of awards of Lok Adalat to exercise of writ jurisdiction may in some manner dilute the efficacy of Lok Adalat system and persuade litigants to resile from awards otherwise based on their agreements. This consideration by itself would not mitigate the position that Lok Adalat being a statutory authority is as such subject to writ jurisdiction, and not immured to fallibility. The maximum, however, that can be aspired for in that regard is that the writ courts exercise jurisdiction very sparingly and only in exceptional; cases in order to prevent the failure of justice, arbitrariness or illegalities. In conclusion, therefore, the answer to question would be that an award passed by Lok Adalat would be subject to judicial scrutiny of High Court in exercise of writ jurisdiction. This also answers the respondents' objection to maintainability of writ petition taken on the count that a writ would not lie with a private person being in the array of respondents. As a matter of fact, the amenability of Lok Adalat to writ jurisdiction as already discussed renders the objection redundant because in essence the writ petition is directed against the - Lok Adalat's award and not the respondent per se. For the sake of technical convenience, however, the Lok Adalat is hereby arrayed as a party to this writ petition.
7. Next comes the question whether award as passed by Lok Adalat in the mater staffers from any illegality. As already said the whole controversy emanates from award of the Lok Adalat passed on a petition filed by parties under Section 15 of Hindu Marriages Act, 1980 (hereinafter to be called "the HM Act") for divorce by mutual consent. So before proceedings ahead it would be appropriate to notice the provisions of Section 15 of HM Act whereunder a petition for dissolution of marriage by decree of divorce may be presented to the District Court by both parties to a marriage together, on the ground that they have been living separately for a period of one year or more because of not having been able to live together due to which they had mutually agreed the marriage to be dissolved. On such motion the court shall after hearing the parties and making such enquiry as it thinks fit pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree, but not earlier than six months after the date of presentation of the petition or latter than eighteen months after the said date. Since the petition for divorce was referred to Lok Adalat by the concerned trial Judge and was covered under the said provision it was required to be dealt with in strict accordance therewith even by the Lok Adalat.
As percolates from record, however, the petition appears to have been presented on 21. 1. 2004 and after its reference to Lok Adalat has been decided by a decree of divorce on 21.1.2004, i.e. within one month, which on the face of it violates the provisions of Sub-section (2) of Section 15 of HM Act whereunder after institution, such application is required to lie over for six months and then come up only if either of the parties has not withdrawn his or her consent in the meanwhile. This provision as a matter of fact has been grafted in the HM Act in keeping with the concept of marriage under ancient Hindu Law whereunder it is a sacred and unbreakable partnership of two souls. It was only after HM Act was passed that provisions for dissolution of marriages and divorce etc; were incorporated in Hindu Law but while doing so enough care was taken to prevent marriage from breaking down; so room was kept for persuading the warring couples to maintain their matrimonial relations and save them from breaking up. It is in that background that Sub-section (2) of Section 15 was incorporated to give a breathing time to couples to rethink the consequences etc; of their separation and try to settle down amicably. Viewed thus this provision appears to be integral to the concept of divorce by mutual consent as contained in Section 15 of HM Act and could not have been over looked by the Lok Adalat while disposing of the reference. Otherwise also the Lok Adalat cannot be expected to give a go bye to express provision of law while trying settlement of disputes, for the simple reason, that if clone it may not only lead to arbitrariness, but also convert the Dispute resolution system into a system of faulty adjudication, resulting in some sort of legal anarchy. On that count, I feel that the Lok Adalat indulged in undesirable haste while awarding the decree of divorce. 8. That takes me to the question whether it was proper for the trial court to refer the matter to Lok Adalat even while parties had expressly said that they wanted to have the marriage dissolved by mutual consent. In other wards what the parties submitted before the trial court was that they had resolved there dispute by consenting to mutual divorce and as such no dispute existed between them that could be referred for settlement to the Lok Adalat. The simple thing perhaps that was required to be done at his level was to record the statements and keep the matter pending for the statutory period of six months to be taken up for appropriate proceedings thereafter. With that being so the reference would perhaps be bad, but for being covered under Sub-section (3) of Section 28 of HM Act which provides that for the purpose of aiding the trial court in bringing about reconciliation between divergent spice it may if it thinks proper adjourn the matter and refer it to any person to report to the court as to whether a reconciliation could be effected and then dispose it of in accordance the report. Independent of that the reference of the matter which in essence was settlement of the dispute rather than the dispute itself appears to be faulty. Taking the reference to be covered by aforesaid provision automatically regularizes the reconciliation proceedings taken by Lok Adalat except of course the final decree of divorce that has been awarded, in disregard of relevant provisions as aforesaid.
9. Accordingly for all that has been stated above, the petition is disposed of with a direction that the divorce awarded by Lok Adalat shall stand overset. The reference made by trial court to the Lok Adalat would be deemed to have been one under Sub-section (3) of Section 29 of HM Act and the proceedings of Lok Adalat, a report in terms thereof that may be used by trial court for pronouncement upon the petition for divorce by mutual consent, which shall stand transmitted back to him alongwith proceedings taken by Lok Adalat in the matter. During consideration of the matter he shall, however, take all the factual pleas and counter pleas raised by parties into account including respondent's claim of having paid Rs. 4.00 lacs to petitioner and dispose of the matter and dispose of the matter in accordance with law, positively within a period of two months from now. Parties are directed to appear before the trial court on 6th November, 2006.