Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 1425 (JHR)

Hina Singh v. Satya Kumar Singh

2006-12-21

DILIP KUMAR SINHA, M.Y.EQBAL

body2006
JUDGMENT M.Y. Eqbal, J. 1. In this appeal under Section 19 of the Family Courts, Act, 1984, the appellant-wife has challenged the judgment and decree dated 18-3-2006 passed by the Principal Judge, Family Court, Dhanbad in Matrimonial Suit No. 2/2003 whereby he has ordered for dissolution of marriage by mutual consent. 2. The facts of the case lie in a narrow compass: The respondent-Satya Kumar Singh married with the appellant, Smt. Hina Singh on 27-4 2001 in accordance with the Hindu rites and customs. In 2003 the respondent-husband filed an application under Section 9 of the Hindu Marriage Act for a decree of restitution of conjugal right alleging, inter alia, that after marriage the appellant lived with him for about three weeks and, thereafter, she went to Kolkata. It was alleged by the respondent that the appellant had gone to Kolkata but she did not come back with him. On 26-10-2001 the appellant came to her matrimonial home and started threatening and torturing the entire family members of the respondent. On 10-12-2001, the father of the respondent along with his two nephews came to the residence of the respondent and took her to Kolkota. Thereafter, the respondent alleged to have made several attempts to take her back to her matrimonial home, but all efforts went in vain. Hence, the respondent filed the aforementioned suit for a decree of restitution of conjugal right. 3. On receipt of summon, the appellant appeared and filed application for time for filing written statement. On last date being 11-2-2005, the Principal Judge allowed time to the appellant for filing written statement by 18-3-2005. On 18-03-2005, the Principal Judge decreed the suit by passing order of dissolution of marriage on mutual consent. The said judgment and decree is the subject of the matter of this appeal. 4. Learned Counsel appearing on behalf of the appellant assailed the impugned judgment and order as being illegal and wholly without jurisdiction. Learned Counsel submitted that two cases, one under Section 125 Cr.P.C. and another Under Section 18 of the Hindu Adoption and Maintenance Act are pending in the Family Court, Kolkata and interim maintenance was allowed in the said proceeding. Learned Counsel further submitted that the appellant-wife neither filed any com-promise petition nor gave consent for dissolution of marriage by mutual consent. 5. Learned Counsel further submitted that the appellant-wife neither filed any com-promise petition nor gave consent for dissolution of marriage by mutual consent. 5. Admittedly, the respondent-husband filed an application under Section 9 of the Hindu Marriage Act, 1953 in the Court of the Principal Judge, Family Court, Dhanbad which was registered as Title Matrimonial Suit No. 2 of 2003. In the said application, the only relief sought for by the respondent-husband was for a decree of restitution of conjugal right. However, the Court below in the said suit, passed the impugned judgment/order for dissolution of marriage by a decree of divorce on mutual consent. 6. Before considering the correctness of the impugned judgment and order passed by the Court below, I would first like to discuss the relevant provision of Hindu Marriage Act which deals with the dissolution of marriage on mutual consent. Section 13B of the Hindu Marriage Act was introduced by Amendment Act of 1976 which reads as under: 13B. Divorce by mutual consent.- (1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized, before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living: separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in Sub-section (1) and not latter than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 7. 7. From bare perusal of the aforesaid provision, it is manifestly clear that a joint petition for dissolution of marriage by a decree of divorce can be filed by both the parties before the Court on the ground that they have been living separately for a period of one year or more and they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Sub-section (2) of Section 13B of the Act provides that such application shall be considered by the Court not earlier than six months after the date of presentation of the petition and after six months the Court shall consider such application and pass appropriate order in accordance with law. Hence, the requirements of law under this Section are: (i) There must be a petition jointly presented to the Court by both the parties to the marriage, (ii) The grounds for dissolution of marriage by a decree of divorce must clearly and categorically show: (a) That the parties have been living separately for a period of one year or more before presentation of the petition, (b) That they have not been able to live together and, (c) That they have mutually agreed that the marriage may be dissolved. 8. Besides the above, the requirement of law is that the Court, before passing a decree for dissolution of marriage under Section 13B of the Act, must make an inquiry into the correctness of the ground set out in the application and thereafter the Court must be satisfied about the correctness of the statement made in the joint petition. 9. It is, therefore, clear that for getting a decree for dissolution of marriage under Section 13B of the Act, parties will have to wait for a minimum period of six months after which they have to move the Court once again under Sub-section (2) of Section 13B of the Act. The Court shall have to record its satisfaction that the marriage was solemnized as per rules and that the parties have not resumed cohabitation during the period of six months or more before moving the Court under Sub-section (2) of Section 13B of the Act. 10. The Court shall have to record its satisfaction that the marriage was solemnized as per rules and that the parties have not resumed cohabitation during the period of six months or more before moving the Court under Sub-section (2) of Section 13B of the Act. 10. The question, therefore, that falls for consideration is as to whether the Principal Judge, Family Court, Dhanbad, has complied the requirement of law or not before passing the impugned judgment/order of dissolution of marriage by mutual consent. As noticed above, on being summoned, the appellant-wife appeared in the suit and on her prayer, time was allowed for filing written statement. The records of the Court below was called for and from perusal of the order- sheets it reveals that the appellant-wife was allowed time for filing written statement. The order dated 5-1-2005 passed by the Court below reads as under: Applicant is present and filed attendance. A time petition has been filed on behalf of the respondent for filing written statement. The respondent is directed to appear physically on 11-2-2005 and file written statement, if any. 11. Besides the above, in all matrimonial suits or proceedings before proceeding with the hearing of the suit or proceeding, a duty is cast upon the Court to comply with the mandatory requirement of law. 12. Section 9 of the Family Courts Act casts a duty on the Court to make every endeavour and persuade the parties in arriving at a settlement. Section 9 of the Family Courts Act reads as under: 9. Duty of Family Court to make efforts for settlement.- (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by Sub-section (2) shall be in addition to, and in derogation of, any other power of the Family Court to adjourn the proceedings. 13. Similar is the provision is Section 23 of the Hindu Marriage Act which again casts a duty on the Court to bring about reconciliation between the parties. Section 23 reads as under: 23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that - (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in Clause (i) of subsection (1) of Section 13, the petitioner has not in any manner been accessary to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and (c) the petition is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why, relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: (3) For the purpose of aiding the Court in bringing about such reconciliation, the Court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person, named by the parties in this behalf or to any person nominated by the Court if the parties fails to name any person, with directions to report to the Court as to whether reconciliation can be and has been, effected and the Court shall indisposing of the proceeding have due regard to the report. (4) In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties. 14. Similarly by CPC (Amendment Act, 1976) a new order XXXIIA has been inserted to deal with certain suits and proceedings concerning the family. Rule (3) of Order XXXIIA cast a duty on the Court to make efforts for settlement. Rule (3) of Order XXXIIA CPC reads as under: Rule 3. Duty of Court to make efforts for settlement: (1) In very suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, assist the parties in arriving a settlement in respect of the subject matter of the suit. (2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by Sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn proceedings. 15. (3) The power conferred by Sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn proceedings. 15. Again Section 89 has been inserted in the Code of Civil Procedure by C.P.C. Amendment Act, 1999 with a view to implement the 129th report of the Law Commission of India and to make conciliation scheme effective. It is proposed to make it obligatory for the Court to refer the dispute for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only after the parties fail to get their disputes settled through anyone of their alternative dispute resolution mechanism, the Court shall proceed with the hearing of the suit. 16. It is, therefore, clear that Section 23 of the Hindu Marriage Act, 1955, Section 9 of the Family Courts Act, 1984, Section 89 and Order XXXIIA of the Code of Civil Procedure make it obligatory for the Court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. The matrimonial disputes are distinct from other types of disputes on account of presence of certain factors which are not found in other disputes. These factors are motivation, sentiments, social compulsion, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security of the future life, so on and so forth. Heavy responsibility, therefore, lies on the Court concerned to go for Court annexed mediation. The main role of the Court is to discover a solution instead of breaking the family relations. It is the mandate of law as also the social obligation of the Judge to make an earnest attempt for reconciliation. As noticed above, considering the importance of settlement in matrimonial disputes Order XXXIIA was inserted as because for the sensitive area of personal relationship special approach is needed keeping in view the forefront objective of family counselling as a method of achieving the ultimate object of preservation of the family. 17. Curiously enough, ignoring all these mandatory provisions, the Court below in a suit for restitution of conjugal right passed an order for dissolution of marriage on mutual consent. 18. From perusal of the order dated 11-2-2005, it transpires that both the parties were present and filed their attendance. 17. Curiously enough, ignoring all these mandatory provisions, the Court below in a suit for restitution of conjugal right passed an order for dissolution of marriage on mutual consent. 18. From perusal of the order dated 11-2-2005, it transpires that both the parties were present and filed their attendance. However, the respondent was directed to file written statement by 18-3-2005. The Pre-siding officer was on casual leave on that date. On 18-3-2005, the suit was decreed by passing order of dissolution of marriage on mutual consent. The Judgment and order which is impugned in this appeal is quoted herein below: The agitation by the petitioner-husband Satya Kumar Singh under Section 9 of the Hindu Marriage Act, 1955 as against the respondent-wife, Heena Singh for restitution of conjugal rights has undergone conversion to one under Section 13B of the Act in course of the proceedings of this case, seeking severance of the marital bond consensually as well as granting of the permanent alimony to the tune of Rupees One Thousand per month to the respondent-wife through money order. 2. The conjugal warmth and ecstasy proved transient and elusive inasmuch as the spouses were thrown separate before long in the wake of the typing of the nuptial knot on 27-4-2001. There has been no instance of observation of matrimonial obligations and relationship since December, 2002. 3. The spouses have been personally examined by the Court and they insisted upon granting of the relief of consensual dissolution which has been found expedient by this Court as well. 4. The instant invocation has emerged as a panacea in the otherwise grim and sombre backdrop of the matrimonial crisis and consequently, the relief is hereby granted and the marriage which was solemnized on 27-4-2001 is hereby dissolved on mutual consent. Furthermore, the petitioner Satya Kumar Singh is directed to pay a permanent alimony to the respondent to the tune of Rs. One Thousand (Rs. 1000/-) per month as undertaken by him from the month of March, 2005 through moneyorder at his own expense. The office clerk is directed to prepare the decree and to furnish a copy thereof free of cost to the either side. 5. The petition is accordingly allowed on mutual consent. 19. One Thousand (Rs. 1000/-) per month as undertaken by him from the month of March, 2005 through moneyorder at his own expense. The office clerk is directed to prepare the decree and to furnish a copy thereof free of cost to the either side. 5. The petition is accordingly allowed on mutual consent. 19. From bare reading of the impugned order (so-called consent decree), it reveals that the Principal Judge himself thought it proper to convert the restitution proceeding into a proceeding for divorce by mutual consent with a condition of payment of one thousand rupees per month. There is no such application to that effect nor the order-sheet shows that on any date such proposal was made by the parties. Although the order speaks about personal examination of the parties but there is nothing on the record either deposition of parties or any order to the effect that parties were examined. In absence of any such joint application or evidence, the Principal Judge himself directed for payment of one thousand rupees by dissolving the marriage by mutual consent. 20. Prima facie, therefore, I have no hesitation in holding that the Court below has committed serious illegality in passing the impugned erroneous order of dissolution of marriage by mutual consent. It is nothing but a whimsical and arbitrary order passed by the Court below which is not supposed to have been passed by an Office of the rank of District and Sessions Judge. It appears that either the Presiding Officer has no elementary knowledge of law or he has failed to appreciate the requirement of law to be complied with before passing a judgment or order for dissolution of marriage by mutual consent as contemplated under Section 13B of the Hindu Marriage Act. 21. A common man cannot and shall not be able to understand the abbreviation and the words used in the impugned judgment. It is well settled that the use of abbreviations or code words should be strictly avoided. It is equally well settled that the judgment should be so precise and so clear that a common man or a litigant must understand the judgment. The language of the judgment should be sober, temperate and clear. 22. Invariably every judgment almost gives the fact giving rise to the suit, appeal or any other proceeding. It is equally well settled that the judgment should be so precise and so clear that a common man or a litigant must understand the judgment. The language of the judgment should be sober, temperate and clear. 22. Invariably every judgment almost gives the fact giving rise to the suit, appeal or any other proceeding. It mentions the provisions at which the parties were at issue or which requires the consideration of the Court, Lord Macmillan in his Memoirs "A Man of Laws Tale" said: I never dictated my judgments. When I had made up my mind on the question involved I wrote out as a basis a rough draft in which I made sure that all the points were included and then I made a fair copy in which I arranged the sequence of the argument, cut out superfluities and tried to improve the writing. In the words of Lord Bacon: Judges ought to be more learned than witty, more reverent than plausible, and more advised than confidant. Above all things, integrity is their portion and proper virtue. 23. From perusal of the impugned order, I am of the definite view that the order does not at all fulfil the requirements of law. It suffers from serious infirmities. 24. Mr. Ashok Kumar Sinha, learned Counsel appearing on behalf of the respondent-husband, instead of supporting the impugned order, mainly argued that the impugned order is a consent decree and, therefore, the instant appeal is not maintainable in view of Order 23 Rule 3 of the Code of Civil Procedure. In this connection learned Counsel put heavy reliance on a decision of the Supreme Court in the case of Pushpa Devi Bhagat v. Rajinder Singh and Ors. . 25. In the case before the Supreme Court there was a dispute between the landlord and the tenant. After terminating the tenancy the landlord filed a suit for recovery of possession of the suit property. It was alleged that the case was compromised between the parties and the defendant undertook to vacate the suit premises. Thereafter, one of the defendants filed appeal and the matter came up to the Supreme Court. After terminating the tenancy the landlord filed a suit for recovery of possession of the suit property. It was alleged that the case was compromised between the parties and the defendant undertook to vacate the suit premises. Thereafter, one of the defendants filed appeal and the matter came up to the Supreme Court. The Supreme Court elaborately discussed the meaning of consent decree within the meaning of Order 23 Rule 3 of the Code and held that if a suit or proceeding is compromised and a consent decree is passed in terms of Order 23 Rule 3 CPC, then no appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC. In my view the decision of the Supreme Court will not in any way help the respondent-husband for the reason that in a matrimonial suit particularly for passing a decree of dissolution of marriage by mutual consent as contemplated under Section 13B of the Hindu Marriage Act, the provision of Order 23 Rule 3 of the Code will not apply. The Court, before passing a decree for dissolution of marriage by mutual consent, has to comply the mandatory requirements of Section 89 and Order 23A of the CPC, Section 23 of the Hindu Marriage Act and Section 9 of the Family Courts Act. In my considered opinion, therefore, the impugned order at no stretch of imagination can be treated as a consent decree for dissolution of marriage by mutual consent and, therefore, the bar provided under Section 96(3) of the Code shall not apply. 26. Having regard to the entire facts and circumstances of the case and the law discussed hereinabove, I have no hesitation in holding that the impugned order (so called consent decree) cannot and shall not be sustained in law and being erroneous, is liable to be set aside. 27. For the aforesaid reasons, this appeal is allowed, the impugned judgment/ order is set aside and the matter is remitted back to the Court below for proceeding with the suit in accordance with law. D.K. Sinha, J. 28. I agree.