Punjab-Haryana High Court
Mrs. Raj Kumari vs The Presiding Judge on 18 February, 2014
Bench: Sanjay Kishan Kaul, Augustine George Masih
L.P.A. NO.432 OF 2013 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Reserved on: November 20, 2013
Date of Decision: February 18th,2014
Mrs. Raj Kumari
...Appellant
Versus
The Presiding Judge, Lok Adalat, Samjhauta Sadan, Panchkula and another
...Respondents
CORAM: HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH, JUDGE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. G.S.Sandhu, Advocate,
for the appellant.
Mr. Amit Rawal, Sr.Advocate with
Mr. Suhail Chhabra, Advocate,
for respondent No.2.
*****
AUGUSTINE GEORGE MASIH, JUDGE Through this appeal, the appellant-petitioner has assailed the order dated 20.11.2012 passed by the learned Single Judge, dismissing the writ petition on account of delay and laches as also on merits.
Briefly, the facts are that marriage between appellant, Raj Kumari and respondent No.2, Bharat Bhushan Bahl was solemnized on 8.3.1961 at Garhshahkar, District Hoshiarpur, Punjab. Out of the wedlock, a Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document L.P.A. NO.432 OF 2013 :{ 2 }:
son, namely, Yogesh Bahl, was born on 19.10.1963. The appellant and respondent No.2 resided together till 1965 and thereafter had been living separately. Although, it is stated by the appellant-petitioner that she had been living in her matrimonial home at Ludhiana till the year 1993 but the couple lived separately.
In view of these circumstances, a family settlement was arrived at and it was agreed between the parties that a formal divorce from the Court be not taken. The relatives, friends and well-wishers made every possible effort to reunite the couple. However, they failed in their efforts and ultimately a petition under Section 13-B of the Hindu Marriage Act, 1955 (for short, "1955 Act") for divorce by mutual consent of the parties was filed on 8.1.2001 before the Permanent Lok Adalat at Panchkula under the provisions of Section 19 of the Legal Services Authority Act, 1987 (hereinafter referred to as "1987 Act"). The appellant and respondent No.2 suffered statements before the Lok Adalat that they had agreed to divorce each other by mutual consent and that permanent alimony has been paid to the appellant, making it clear that she has nothing more to claim from respondent No.2 as the Istri Dhan has also been returned to her. This statement was recorded in Hindi and the appellant appended her signatures to the said statement, which was duly attested by the counsel, who represented her before the Lok Adalat. The petition for divorce was duly supported by the affidavits of the appellant and respondent Nos.2 and there was also an application for waiving of the mandatory period of six months as provided for under Section 13-B of 1955 Act. This waiver was sought as respondent No.2 intended to go abroad for his medical treatment. Award Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document L.P.A. NO.432 OF 2013 :{ 3 }:
was passed accordingly by the Permanent Lok Adalat, Panchkula, on 8.1.2001 in the following terms:-
"Smt.Raj Kumari was married to Sh.Bharat Bhushan Bahl on 8.3.1961. After the marriage the parties lived together as husband and wife and a male child was born out of this wedlock on 19.10.1963. The name of this child is Yogesh and he is now about 37 years old. Now for the last 35 years the parties have been living separately. Because of their different temperaments they can not live together.
On the basis of the statements given by the parties, I allow this petition and dissolve the marriage between them by the means of this decree of divorce with mutual consent. As agreed, it is further ordered that petitioner No.2 will not be entitled to claim any sort of maintenance of alimony from her husband. File be consigned to record room."
In the light of the divorce by mutual consent, thereafter the parties continued to reside separately as divorced couple peacefully.
It is the case of the appellant that on 16.6.2010, she was informed to meet respondent No.2 and when she came to meet him, it was told to her that respondent No.2 is not at Hotel President, which is owned by him and she should go to Sector 21, Panchkula, to meet him. As per the appellant, when she went there, she was given beatings by respondent No.2 and his brother, qua which she filed a complaint in the Police Station, where, for the first time, a plea was taken by respondent No.2 that he was a divorcee and only then she came to know that a decree of divorce was Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document L.P.A. NO.432 OF 2013 :{ 4 }:
passed by the Lok Adalat. As per appellant, a fraud had been played on her and she had been kept in dark. She had never appeared before the Oath Commissioner on 6.1.2001, when the affidavit was attested, which was filed alongwith the petition for divorce under Section 13-B of 1955 Act before the Lok Adalat.
The appellant then filed an application before the Permanent Lok Adalat on 17.9.2010 for recalling the order dated 08.01.2001 and notice was issued to respondent No.2 for 1.10.2010. Objections with regard to maintainability of the application were filed and reply on merits was also filed. Ultimately the matter was adjudicated upon and the application was dismissed by the Lok Adalat, Panchkula, vide order dated 24.1.2011, holding therein that the Court has no jurisdiction to entertain the said application as the award of the Lok Adalat could only be challenged by way of petition under Articles 226/227 of the Constitution of India. The Lok Adalat further proceeded to hold that there was an inordinate delay on the part of the appellant in approaching the Lok Adalat and further that the allegation of fraud is not sustainable. This order dated 24.01.2011 as also the decree of divorce passed by the Lok Adalat on 8.1.2001 were challenged in the writ petition. The writ petition was dismissed by the learned Single Judge of this Court vide order dated 20.11.2012, which is under challenge before us in the present appeal.
The matter was heard on 21.3.2013, when the case was referred to the Mediation and Conciliation Centre of the High Court with a view to explore the possibility of an amicable settlement. However, efforts made by the Mediator failed and the report of failure was submitted to this Court. Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document
L.P.A. NO.432 OF 2013 :{ 5 }:
On 9.10.2013, the appellant appeared with one Ms.Mamta, whom she claimed to be her daughter-in-law and stated that since her lawyer has returned the brief, she would like to address submissions through Ms.Mamta. Although the appellant and Ms.Mamta were cautioned that they may not know the legal niceties and, thus, assistance of an Advocate could be made available to them through the High Court Legal Services Committee but they insisted on making submissions on their own and were, thus, heard. Counsel for respondent No.2 was also heard for about 15 minutes and at that stage, Ms.Mamta stated that it would be better, if legal assistance is made available to the appellant. Keeping in view the request made by the appellant, the High Court Legal Service Committee was called upon to appoint a counsel to assist the appellant and the case was thereafter listed on 20.11.2013.
On 20.11.2013, Mr.G.S.Sandhu, counsel appointed by the High Court Legal Services Committee appeared on behalf of the appellant and put forth his submissions that the appellant, who is an illiterate lady, could not read or write English and being solely dependent upon her husband had taken undue advantage of her simplicity and obtained a decree of divorce through an award dated 8.1.2001 passed by the Lok Adalat. The permanent Lok Adalat did not have the jurisdiction to entertain a petition for divorce directly under the provisions of Section 13-B of 1955 Act, which provides for dissolution of marriage with consent. The said petition could only be presented before a District Court and since the same was not presented before the said Court, there was no question of referring it to Lok Adalat and, therefore, the award dated 8.1.2001 is without jurisdiction and Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document L.P.A. NO.432 OF 2013 :{ 6 }:
deserves to be set-aside. Counsel for the appellant, while relying upon the provisions of Regulation 10 of the National Legal Service Authority (Lok Adalats) Regulations, 2009 (for short, "2009 Regulations"), contends that the matters relating to divorces and criminal cases, which are not compoundable under the Code of Criminal Procedure, cannot be referred to Lok Adalat. Even the mandatory period of six months as provided in sub- section (2) of Section 13-B of 1955 Act has also not been taken into consideration. The petition was submitted on 8.1.2001 and on the same day, the permanent Lok Adalat proceeded to pass the award, which is in violation of the statutory provisions and, therefore, this in itself is a ground sufficient for setting-aside the award dated 8.1.2001.
So far as delay in filing the application for recalling the order dated 8.1.2001, which was submitted by the appellant on 12.9.2010, the counsel for the appellant contends that prior thereto, the appellant was not even aware of the decree of divorce passed under Section 13-B of 1955 Act. She only came to know about the same when she lodged a complaint with the police and during investigation respondent No.2 took a plea of he being a divorcee and that the award dated 8.1.2001 had already been passed. His submission is that it is well settled principle of law that a judgement or decree obtained by playing fraud is a nullity and nonest in the eyes of law and in such a situation, there can be no period of limitation. The affidavit of son of appellant No.2, Sh.Yogesh Bahl, which is stated to be filed during the proceedings before the permanent Lok Adalat, Panchkula on 8.1.2001 is without any date, which shows that the same is result of manipulation. On these basis, prayer has been made for allowing the appeal, setting-aside the Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document L.P.A. NO.432 OF 2013 :{ 7 }:
order passed by the learned Single Judge and declaring the award dated 8.1.2001 of the Lok Adalat as nullity.
On the other hand, learned Senior counsel for respondent No.2 submits that contentions as made above on behalf of the appellant cannot be accepted. As per the provisions of Section 19(5)(ii) of 1987 Act, the Lok Adalat has jurisdiction to determine and to arrive at a compromise or settlement between the parties to the dispute where any matter would fall within the jurisdiction of the Lok Adalat for which it is organized, even if there is no case pending. Referring to Regulations 2009, he contends that the said regulations have come into force on 20.10.2009 and, therefore, the same would not be applicable to the proceedings, which stood finalized in the year 2001. The proceedings before the Lok Adalat were held in Hindi. The statement of the appellant was recorded in Hindi, which language admittedly the appellant knew, and could read and write. She had also admitted her signatures on the said statement. She has also admitted her signatures on the application and the affidavit during the proceedings before the Lok Adalat, which clearly depicts that the appellant was aware of the fact as to why and for what purpose the petition under Section 13-B of 1955 Act was filed. The award passed by the Lok Adalat on 8.1.2001 depicts the correct position that the appellant was aware of the then prevalent situation and, therefore, at this belated stage she cannot be allowed to take a contrary stand to what is apparent from the records and pleadings as also the statement made by her before the Lok Adalat.
There is a delay of almost nine and a half years on the part of the appellant in filing an application for recall of the award dated 8.1.2001 Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document L.P.A. NO.432 OF 2013 :{ 8 }:
before the permanent Lok Adalat. The cause of action is alleged to have accrued to the appellant in June 2010, when she allegedly came to know about the fraud when a complaint was filed by her before the police, which fact is totally incorrect. In the application filed before the Lok Adalat, which was dismissed on 24.1.2011, it has come on record that she came to know about the fraud from her mother-in-law, when she expired. This is a totally concocted story as the mother of respondent No.2 (mother-in-law of the appellant) expired in the year 2000, which was prior to the date of award of the Lok Adalat i.e. dated 8.1.2001. He further contends that a copy of the statement of the appellant dated 16.11.2011 recorded in the proceedings under Section 125 Cr.P.C. for seeking interim maintenance (appended as Annexure R-1 in the writ petition). She admitted her signatures on the statement dated 8.1.2001 in Hindi. She had also admitted that she came to know about the divorce being taken by respondent No.2 about 7-8 years ago. As per own statement of the appellant, she had come to know about the divorce in the year 2004 but she preferred the application for setting-aside the award dated 8.1.2001 before the Lok Adalat only on 19.9.2010. He, on this basis, contends that the appellant herself has not come to the Court with clean hands and has tried to mislead the Court at every step and, therefore, it cannot be said that she had come to know about the passing of the award in the year 2010. Accordingly, prayer has been made for dismissal of the appeal.
We have considered the submissions made by counsel for the parties and have gone through the records of the case.
The facts with regard to marriage, birth of son, appellant and Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document L.P.A. NO.432 OF 2013 :{ 9 }:
respondent No.2 being resided separately since the year 1965 and passing of award dated 8.1.2001 are not in dispute. What needs to be decided is whether the award dated 8.1.2001 could be challenged by the appellant by way of writ petition at this belated stage on the ground of fraud?
There can be no doubt about the proposition that a decree or divorce obtained by way of fraud cannot be given effect to and the same cannot be enforced in a Court of law. The challenge to the said decree/award would, therefore, in the light of there being no statutory remedy available, be maintainable under Articles 226/277 of the Constitution of India.
The question, therefore, would be as to whether there was knowledge of passing of the award to the appellant and if that was so, as to when she came to know about the same and whether she had approached this Court within a reasonable time for claiming the said relief?
As per the pleadings, although the appellant had asserted that she only came to know about the award dated 8.1.2001, when she filed a complaint before the police on 17.6.2010. However, as is apparent from the statement dated 16.11.2011 (Annexure R-1) given by the appellant in the proceedings initiated by her under Section 125 Cr.P.C., seeking interim maintenance that she had come to know about the divorce in the year 2004. If that be so, the plea, as has been taken by the appellant for approaching this Court or even before the Lok Adalat on 12.9.2010, cannot be said to be within a reasonable time as the cause of action, if any, arose to her in the year 2004. The writ petition was required to and has rightly been dismissed by the learned Single Judge on delay and latches.
Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document
L.P.A. NO.432 OF 2013 :{ 10 }:
Even on the question of fraud having been played on the appellant, which is the base for challenging the award dated 8.1.2001, is not made out. Petition under Section 13-B of Hindu Marriage Act, 1955 was preferred by the appellant alongwith respondent No.2, which was duly supported by the affidavits filed by them. In the affidavits so submitted, the factual position was clearly depicted. Even in the statement which had been recorded before the permanent Lok Adalat on 18.1.2001 in Hindi, which language admittedly the appellant knew and could read and write also and had appended her signatures thereon, apart from affidavit, which fact is not disputed by the appellant. Thus, it leaves no manner of doubt that the appellant was well aware as to why and for what purpose the petition was being filed before the Lok Adalat. All these facts go to show that there was no fraud played on the appellant. In the application, which was preferred by the appellant for setting-aside the award dated 8.1.2001, the permanent Lok Adalat, on the basis of the statements recorded before it, has come to the conclusion vide order dated 24.1.2011 that there was no fraud played upon the appellant, which findings have been affirmed by the learned Single Judge vide order under challenge. We also are in agreement with the said findings. The basis for challenge to the award dated 8.1.2001, therefore, is gone.
In any case, the plea of the appellant with regard to the jurisdiction of the permanent Lok Adalat not being there to entertain petition directly under Section 13-B of 1955 Act, cannot be accepted in the light of the provisions as contained in Section 19(5)(ii) of 1987 Act, which reads as under:-
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L.P.A. NO.432 OF 2013 :{ 11 }:
"19. Organisation of Lok Adalats.-
(1) to (4) xx xx xx xx
(5) (i) xx xx xx xx
(ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised:
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law."
The above Section clearly shows that the matter can be taken up by the Lok Adalat on any issue except for the bar as has been projected in the proviso to sub-section (5) of Section 19. The entertainment of the petition under Section 13-B of 1955 Act is, thus, not barred.
Reference to and reliance on proviso to Regulation 10 of 2009 Regulations by the learned counsel for the appellant for projecting a bar to entertainment of the matters relating to divorce does support the assertion of the counsel. However, the said Regulation does not render any help to the appellant as the said regulations had come into force on 20.10.2009 whereas the award was made on 8.1.2001. The bar, as per proviso to sub-regulation (2) of Regulation 10 of 2009 Regulations would only be applicable to those references/ proceedings, which are initiated on or after 20.10.2009.
In view of the above, we do not find any merit in the present appeal nor do we find any infirmity in the order passed by the learned Single Judge, which would require interference by this Court. Khurmi Rakesh 2014.02.18 16:45 I attest to the accuracy and integrity of this document
L.P.A. NO.432 OF 2013 :{ 12 }:
The present appeal, therefore, stands dismissed.
( SANJAY KISHAN KAUL ) (AUGUSTINE GEORGE MASIH)
CHIEF JUSTICE JUDGE
February 18th, 2014
khurmi
Khurmi Rakesh
2014.02.18 16:45
I attest to the accuracy and
integrity of this document