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2017 DIGILAW 1245 (GAU)

Raju Sarkar v. Sabita Sarkar

2017-09-06

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. B.K. Singh, the learned counsel for the petitioner. No one has entered appearance on call for the respondent despite notice of this application has been duly served on the respondent as per office note dated 08.08.2017 as well as per the order dated 14.08.2017 passed in the Proceedings of Lawazima Court. 2. This is an application under Article 227 of the Constitution of India, challenging the two orders dated 03.10.2015 passed by the learned District Judge, Sonitpur, Tezpur in Misc. (J) Case No.20/2014 and Misc. (J) Case No. 21/2014 arising out of T.S. (D) No. 36/2010. 3. The parties to this application were married on 03.12.1998 as per Hindu custom and have a daughter out of the wedlock. The petitioner and the respondent entered into a Deed of Agreement dated 18.05.2010. As per clause 1 thereof, the parties agreed for a mutual divorce. As per clause 3 thereof, the respondent took over the custody of their girl child for her future education, amenities and requirement from the date of the Agreement. The petitioner was to undertake the responsibility of the marriage of their daughter. As per clause 4, the petitioner had agreed to pay a sum of Rs.5,00,000/- (Rupees Five lakh only) by mutual consent and undertaking by the respondent for dissolution of their marriage by mutual divorce and for taking custody of their girl child and giving facilities of education along with all amenities of her life. It was also agreed that the petitioner is free regarding any responsibility/liability to the respondent and their girl child. As per clause 5, the petitioner paid Rs.50,000/- and the balance was undertaken to be paid immediately after completion of hearing of divorce suit. 4. On 03.06.2010, the parties jointly filed a petition under Section 13-B of the Hindu Marriage Act, 1955 for dissolution of their marriage, which was registered before the Court of the learned District Judge, Sonitpur, Tezpur and numbered as T.S. (D) No. 36/2010. It was, inter-alia, stated in paragraph 9(d) thereof that the petitioner shall not pay any amount in addition to the amount in example (sic., ought to be ‘excess’) of Rs.5,00,000/- for any purpose to the respondent herein. Moreover, the petitioner shall not claim custody of the minor child by himself or through any Court from the hand of the respondent. It was, inter-alia, stated in paragraph 9(d) thereof that the petitioner shall not pay any amount in addition to the amount in example (sic., ought to be ‘excess’) of Rs.5,00,000/- for any purpose to the respondent herein. Moreover, the petitioner shall not claim custody of the minor child by himself or through any Court from the hand of the respondent. In course of the hearing of the suit, the petitioner and the respondent submitted their respective Evidence- on- Affidavits and proved their Deed of Agreement dated 18.05.2010. The learned District Judge, Sonitpur, Tezpur, allowed the suit and directed that the suit is decreed in terms of Deed of Agreement executed by both the parties dissolving their marriage between the parties. The Deed of Agreement which has been marked ‘X’ will form part of the decree. Decree was prepared accordingly. 5. In connection with the T.S. (D) No. 36/2010, on or about the month of November, 2014 the respondent filed two misc. cases, one being Misc. (J) Case No.20/2014 under the provisions of Section 25(2) of the Hindu Marriage Act, 1955, and Misc. (J) Case No. 21.2014 was for varying the decree dated 04.12.2010 passed under Section 13-B of the Hindu Marriage Act, 1955 in T.S.(D) No. 36/2010 for custody of their daughter, then aged 141/2 years old. The petitioner contested both the applications by filing his preliminary objections. 6. The learned court of District Judge, Sonitpur, Tezpur, by two orders impugned herein, rejected the preliminary objections raised by the petitioner herein and ordered that the Misc. Cases would proceed in its normal course. 7. The learned counsel for the petitioner submits that as there was a divorce with mutual consent, the compromise decree was passed and drawn up, which cannot be said to be a decree or an order within the meaning of Section 25(1) of the Hindu Marriage Act, 1955 allowing alimony or maintenance, but it was a compromise decree falling within the scope of Section 13-B of the said Act 1955. Moreover, it is not permissible to pass any order consequent to the drawing up of the decree, as it would amount to interference with the decree. In support of his argument, the learned counsel for the petitioner has relied on the provisions of Order XXIII Rule 3 CPC, Section 25 and Section 26 of the Hindu Marriage Act, 1955. Moreover, it is not permissible to pass any order consequent to the drawing up of the decree, as it would amount to interference with the decree. In support of his argument, the learned counsel for the petitioner has relied on the provisions of Order XXIII Rule 3 CPC, Section 25 and Section 26 of the Hindu Marriage Act, 1955. He has also relied on the case of Pushpa Devi Bhagat Vs. Rajinder Singh & Ors., (2006) 5 SCC 566 . 8. It is seen that in the present case in hand, the decree of divorce was passed by invoking the provisions of Section 13-B of the Hindu Marriage Act, 1955 on mutual consent of the parties and, as such, the learned Court of District Judge, Sonitpur, Tezpur had not passed any order in the present case in hand by invoking the provisions of Section 25(1) of the Hindu Marriage Act, 1955. 9. It would be pertinent to quote the provisions of Section 25 of the Hindu Marriage Act, 1955, which reads as follows:- “25. Permanent alimony and maintenance.. (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall [***] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant [, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, 57 [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].” 10. The above quoted provisions of Section 25(2) of the Hindu Marriage Act, 1955 makes it clear that if at any time after an order is made under Section 25(1) of the Hindu Marriage Act, 1955, there is any change in the circumstances of either party, the court may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem fit. The consent decree passed in the case stands un-assailed and is not set aside by a court of competent jurisdiction. There is no provision in the Hindu Marriage Act, 1955, which permits the Court to exercise review jurisdiction to modify, vary or alter an order passed in exercise of power and jurisdiction under Section 13-B of the said Hindu Marriage Act, 1955, whereas the provisions of Section 25(2) of the said Act empowers and gives jurisdiction to the Courts to modify, vary or alter and order passed under Section 25(1) of the said Act. 11. Therefore, in view of the discussion above, and having found that in the case in hand, the decree of divorce as well as the order of permanent alimony was made under Section 13-B of the Hindu Marriage Act, 1955, this Court has no hesitation to hold that the impugned order dated 03.10.2015, passed by the Court of the learned District Judge, Sonitpur, Tezpur, in Misc. (J) Case No.20/2014 arising out of T.S.(D) No. 36/2010, thereby modifying the order dated 03.06.2010, passed by the said learned Court in T.S. (D) No. 36/2010 in exercise of jurisdiction under Section 25(2) of the Hindu Marriage Act, 1955 is not sustainable in the eye of law and its suffers from jurisdictional error. Hence, the same is set aside and Misc. (J) Case No. 20/2014 stands dismissed. 12. In so far as the proceedings of Misc. (J) Case No.21/2014 is concerned, it would be relevant to refer to the provisions of Section 26 of the Hindu Marriage Act, 1955, which reads as follows:- “26. Custody of children In. any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made: Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.” 13. From the provisions of Section 26 as quoted above, it is clear that the Court passing the decree has the power to make such alteration in the decree in consistence with the wishes of the children. Therefore, as the petition by the respondent in Misc. (J) Case No.20/2014 is found to be in consonance with the provisions of Section 26 of the Hindu Marriage Act, 1955, keeping in mind the paramount interest of the education and well-being of the children born out of the wedlock of the parties, this Court is inclined to hold that the proceedings of Misc. (J) Case No.20/2014 is found to be in consonance with the provisions of Section 26 of the Hindu Marriage Act, 1955, keeping in mind the paramount interest of the education and well-being of the children born out of the wedlock of the parties, this Court is inclined to hold that the proceedings of Misc. (J) Case No.20/2014 is maintainable and, as such, the Court of the learned District Judge, Sonitpur, Tezpur, has rightly exercised it power and jurisdiction in entertaining the proceedings of the said Misc. (J) Case No.20/2014. The same shall proceed in accordance with law. The order dated order dated 03.10.2015, passed by the Court of the learned District Judge, Sonitpur, Tezpur, in Misc. (J) Case No.21/2014 arising out of T.S.(D) No. 36/2010 is sustained. As a result Misc. (J) Case No. 20/2014 stands dismissed and impugned order dated 03.10.2015 passed in Misc. (J) Case No.20/2014 stand set aside. Moreover, no interference is called for in respect of order dated 03.10.2015 passed in Misc. (J) Case No.21/2014. 14. The Petitioner, who is duly represented by his Counsel herein, shall appear before the Court of the learned District Judge, Sonitpur, Tezpur, on 18.09.2017, without any further notice for appearance and by producing a certified copy of this order, shall seek further instructions from the said learned Court. On commencement of the proceedings, the said learned Court shall notify the respondent herein and proceed with the Misc. (J) Case No. 21/2014 in accordance with law.