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2016 DIGILAW 767 (ORI)

Nilamani Sahu v. Pravati Sahu

2016-09-08

J.P.DAS

body2016
JUDGMENT J.P. DAS. - This application is directed against the order dated 28.12.2013 passed by the learned Judge, Family Court, Cuttack in C.R.P. No.09 of 1993 granting a monthly maintenance @ Rs.500/- per month from the date of application till the date of order and thereafter @ Rs.2000/- per month in favour of the present Opposite Party to be paid by the present Petitioner-husband. 2.This matter has a checkered career protracting the litigation for more than two decades either due to ignorance of the parties or lack of proper advice, as a result of which the hapless wife has been deprived of getting a monthly maintenance after being separated from her husband, the present petitioner in a proceeding under Section 125 Criminal Procedure Code. 3.Bereft of unnecessary details, the brief facts are that the marriage between the present petitioner and the opposite party was solemnized on 21.01.1986 and they lived as husband and wife. Some times thereafter, the opposite party-wife was tortured for demand of some cash and jewellery as dowry and the present petitioner-husband also tried to do away with her life on some occasions by sprinkling kerosene, attempting to administer poison or forcibly pushing her inside a tank, etc. The opposite party-wife was also assaulted on some occasions. The opposite party-wife being rescued by her brother, lodged an F.I.R. at Niali Police Station on 30.04.1990 alleging offences punishable under Section 498-A of the Indian Penal Code and other offences which was charge-sheeted after investigation and the accused-husband was convicted therein. Of course, in an appeal preferred by him, he was acquitted of the charges much later on the year, 2009. The opposite party-wife filed the application in the year, 1993 under Section 125 of the Cr.P.C. claiming maintenance @ 500/- per month from her husband since the apprehended to her life, if she would go back to her husband. Since the opposite party-husband did not appear despite notice, he was set exparte and by order dated 08.11.1994 the learned Judge, Family Court passed the exparte order directing the opposite party-husband to party monthly maintenance of Rs.300/- w.e.f. from the date of passing of the order. The petitioner-wife assailed the order before this Court in Criminal Revision No.90 of 1995 with the submission that the grant of maintenance should have been from the date of application instead of being from the date of order. The petitioner-wife assailed the order before this Court in Criminal Revision No.90 of 1995 with the submission that the grant of maintenance should have been from the date of application instead of being from the date of order. In course of pendency of the revision before this Court, the matter was placed before the High Court Level Lok Adalat with consent of both the parties and it was ordered on 15.10.1996 as follows : Xxxxxxxxxxxx Heard learned Counsel for the parties and on their consent matter was taken up at the High Court level Lok Adalat. Learned Judge, Family Court has awarded a sum of Rs.300/- per month as maintenance from the date of order. The order was passed on 08.11.1994 and application was filed on 08.01.1993. Considering financial status of the opp. party no.1, I direct that in respect of ,maintenance keeping in view the quantum fixed by learned Judge, Family Court, arrears upto the end of October, 1996 even on the basis of order of learned Judge, Family Court comes to Rs.7200/-. Taking all the circumstances into consideration, amount of arrear is fixed at Rs.8500/- to be paid in three instalments i.e. Rs.3000/- by the end of November, 1996, Rs.3000/- by the end of January, 1997 and Rs. Rs.2500/- by the end of March, 1997. Monthly maintenance as awarded by learned Judge, Family Court @ Rs.300/- per month shall be payable by 15th of every month beginning from November, 1996. Criminal Revision is disposed of accordingly.” Since the opposite party did not carry out the direction passed in the Lok Adalat by making payments, the learned Court below issued distress warrant against the opposite party-husband and he was remanded to custody and was released subsequently on making some payment to the opposite party-wife. The payment of maintenance and arrears as per direction of this Court, was monitored by the learned trial Court. In the meantime, the present petitioner-husband filed a proceeding before the learned Judge, Family Court, seeking divorce against the wife. Since the wife did not prefer to contest the proceeding, the divorce was allowed ex-parte by the learned Judge, Family Court, on 02.07.1998.The said order has gone unchallenged as yet. While the matter stood thus, the husband-opposite party filed an application to set aside the original order passed ex-parte and it was allowed restoring the original application to file for regular hearing. While the matter stood thus, the husband-opposite party filed an application to set aside the original order passed ex-parte and it was allowed restoring the original application to file for regular hearing. Since the opposite party-husband again defaulted in attendance of the trial Court, on 05.07.2005, the learned Judge, Family Court again passed an exparte order directing the opposite party-husband to pay monthly maintenance @ Rs.400/- per month w.e.f. from the date of application i.e. 08.01.1993.Thereafter on 23.07.2005 the present petitioner again filed an application before the learned trial Court to set-aside the exparte order which was registered as C.R.P. No.441 of 2005. By order dated 19.01.2007, the learned trial Court set-aside its earlier order subject to payment of certain cost by the petitioner-husband. Thereafter, the opposite party-husband filed show cause in the original proceeding under Section 125, Cr.P.C., both the parties adduced their evidence and considering the materials placed before the Court the learned Judge, Family Court, by order dated 28.12.2013 passed the impugned judgment directing the opposite party- husband to pay maintenance @ Rs.500/- per month from the date of application till the date of order and thereafter @ Rs.2000/- per month. 4.In the present application the findings of the learned trial Court have been traversed by the petitioner-husband with the submissions that the petitioner-wife is not entitled for maintenance since she was staying separately out of her own without joining the company of the husband and that she was earning for herself working as Asha Karmi and that the petitioner did not have the financial condition to pay monthly maintenance as directed and, it has also been contended that since there has been a divorce between the petitioner and the opposite party which remains unchallenged, the learned trial Court was wrong in allowing the maintenance in favour of the wife-opposite party. 5.At the time of hearing the learned Counsel for the petitioner simply submitted that the impugned judgment is not maintainable in law since the matter has already been decided in the High Court Level Lok Adalat. Per contra, the learned Counsel appearing on behalf of the opposite party supported the impugned judgment by submitting that the petitioner cannot be allowed to take the benefit of his own misdeeds. Per contra, the learned Counsel appearing on behalf of the opposite party supported the impugned judgment by submitting that the petitioner cannot be allowed to take the benefit of his own misdeeds. 6.In view of the submissions made at the Bar, I feel it appropriate to consider the legal sustainability of the impugned order in view of the provisions made in the Legal Services Act, 1987 (hereinafter referred to as the Act) without going into the factual aspects of the case. 7.As mentioned hereinbefore the matter was decided exparte awarding maintenance in favour of the Opposite Party in an exparte order. The Opposite Party challenged the said order before this Court with the submission that the payment of maintenance should have been from the date of application instead of being from the date of order. Both the parties appeared in the proceeding and the matter was placed before the High Court Level Lok Adalat wherein with the consent of both the parties, the matter was finally settled. Thus arises the question as to whether after such settlement in the Lok Adalat there remained any scope for the learned trial Court to again sit over the matter and to set-aside the exparte order on the application of the present petitioner. 8.Lok Adalat is a sacrosanct provision under the ‘Act’ for disposal in a summary way and through the process of arbitration and settlement between the parties of a large number of cases expeditiously with lesser cost. Section 21 of the Act deals with award of Lok Adalat as hereunder. “21.AWARD OF LOK ADALAT – 2 (1) Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred on it under Sub-Section (1) of Section 20, the Court fee paid in such cases shall be refunded, in the manner provided under the Court Fees Act, 1870 (2 of 1870). (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award. (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award. 9.The aforesaid provision of the ‘Act’ makes it abundantly clear that every award of Lok Adalat shall be deemed to be a decree of a Civil Court executable accordingly to law and every award made by a Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall like to any Court against the award. The only enabling provision is that the decree may be reviewed under Order 47 Rule 1 of Civil Procedure Code provided the pre-conditions enumerated therein are satisfied. This position of law has been settled in a number of pronouncements of the Hon’ble Apex Court. The Hon’ble Supreme Court in the case of A.T. Thomas Vrs. Thomas Jaw reported in AIR 2005 SC 3575 observed that “the award of Lok-Adalat is fictionally deemed to be decrees of Court and therefore the Courts have all the powers in relation thereto as it has in relation to a decree passed by itself”. In the aforesaid decision, the case of Sailendra Narayan Bhanja Deo v. The State of Orissa MANU/SC/0081/1956: 1956) 1 SCR 72 decoded by a Constitution Bench of the Hon’ble Apex Court was also referred to wherein it was observed that “a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case.” It was also observed that “the truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought to the end”. 10.In view of the aforesaid position of law, after the matter was settled with the consent of both the parties in the High Court Level Lok Adalat there remained no scope for the learned Judge, Family Court to again sit over the matter and to set aside the order passed earlier, since it has become functus officio after the settlement reached at High Court Level Lok Adalat so far as award of maintenance was concerned. In my considered view, if such a proposition is allowed to continue, that would not only frustrate the sanctity of the Lok Adalat by settling its decision at naught, but also would be a mockery of justice delivery system. Hence, in view of such a situation, the entire proceedings taken up by the learned trial Court, which culminated in the impugned judgment was not permissible under the law and therefore, cannot be allowed to stand. The entire proceedings as referred to have been taken up by the trial Court at the behest of the present petitioner who has again come up to take the advantage of his own misdeeds by challenging the impugned order with an enhanced award of maintenance, but the irony is that law stands in his favour. 11.However, in view of the aforesaid positions, the impugned order dated 28.12.2013 passed by the learned Judge, Family Court in C.R.P. No.09 of 1993 is set aside. That makes the final settlement arrived at the High Court Level Lok Adalat dated 15.10.1996 continuing and it is made clear that the opposite party would be at liberty to move for enhancement of the maintenance, if so advised and so entitled. The revision is disposed of accordingly. Revision disposed of.