Rajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009

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Jammu High Court
Rajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW No. 64 OF 2006    
Rajinder Kumar Sharma  
Petitioner
Jyoti Sharma 
Respondent  
!Mr. Z. A. Shah, Senior Advocate with Mr. Vipan Gandotra, Advocate
^M/s. P. N. Raina, Rahul Bharti and Sindhu Sharma, Advocates 

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge  
 DATE: 30/03/2009 
: J U D G M E N T :

Per Barin Ghosh, CJ:

In the writ petition, which has been allowed by the
judgment and order under appeal, the petitioner2
respondent sought a writ of certiorari quashing the
reference made to Lok Adalat and also the order passed
by Lok Adalat. It was contended that the reference to Lok
Adalat was impermissible. The said contention has been
accepted. It was also contended that Lok Adalat could not
pass the order on the date the same was passed, as on
that date, Lok Adalat had no authority to deal with the
matter. The said contention too has been accepted.
The facts giving rise to filing of the writ petition are
that the appellant filed a petition seeking dissolution of his
marriage with the petitioner-respondent by decree of
divorce on the grounds of cruelty and desertion, which are
available grounds in terms of Section 13 of the Jammu
and Kashmir Hindu Marriage Act, 1980. The petitionerrespondent
not only contested the petition but also filed an
application seeking dismissal thereof, since she returned
3
to her matrimonial home and started residing with the
appellant. Upon dismissal of her application, the
petitioner-respondent also filed a revision application.
Soon after dismissal thereof, the appellant and the
petitioner respondent, on January 21, 2004, filed a petition
for dissolution of their marriage by a decree of divorce on
mutual consent as may be had under Section 15 of the
Act. In the said petition, amongst others, they stated that
they are government employees and have not cohabited
since April 20, 2002. In the application, it was also stated
that the appellant will pay a sum of Rs. 4.00 lacs in cash
or by way demand draft to the petitioner-respondent in lieu
of full and final maintenance. It was also stated that the
petitioner-respondent shall have one-third share in the
house of which the appellant was the owner. The petition
contained the plan of the house and demarcated one-third
4
portion thereof which would come to the share of the
petitioner-respondent.

On January 21, 2004 itself, the appellant and the
petitioner-respondent deposed before court stating that
they have of their own volition, after understanding the
true purport of the petition for divorce on mutual consent,
have filed the same. After such deposition was recorded,
both of them and their counsel requested the Court to put
up the case before Lok Adalat. In the circumstances, the
Court by an order dated 21st January, 2004 directed the
case to be put up before Lok Adalat on January 27, 2004.
On January 27, 2004, the appellant as well as the
petitioner-respondent deposed before Lok Adalat and,
while doing so, not only stated that they want divorce on
the terms and conditions contained in the said petition for
5
divorce on mutual consent, but also a decree to that effect
be passed by Lok Adalat. Thereupon, before Lok Adalat,
the appellant paid a sum of Rs. 1.00 lac in cash and
another sum of Rs. 3.00 lacs by Demand Draft to the
petitioner-respondent on January 27, 2004. Thereafter,
Lok Adalat on January 27, 2004 passed the order
dissolving the marriage of the appellant and the petitionerrespondent
after recording that the appellant and the
petitioner-respondent were told in Lok Adalat to reconsider
the petition for mutual divorce and were advised to live
together but they declined to do so.

Soon thereafter, the writ petition was filed. In the writ
petition, it was contended that in relation to the petition for
divorce by mutual consent, there was no dispute requiring
compromise or settlement by Lok Adalat and, accordingly,
the same could not be referred to Lok Adalat. It was also
6
stated that the reference was bad, inasmuch as the court
failed to record its satisfaction before referring the petition
for divorce by mutual consent to Lok Adalat. It was also
contended that the petition for mutual consent could not
be decided on the date the same was purported to be
decided by Lok Adalat, for, on the date the same was
considered and disposed of, Lok Adalat had no jurisdiction
to decide the same. As aforesaid, the Writ Court accepted
such contentions.

We have heard at length the counsel appearing on
behalf of the parties and have considered the materials
before us.

The moot point urged was whether the Court lacked
inherent jurisdiction to refer the said petition for divorce on
mutual consent to Lok Adalat and, if not, whether the
7
same was improper exercise of jurisdiction? The other
point is whether Lok Adalat lacked inherent jurisdiction to
pass a decree for divorce on mutual consent on the date
the same was passed and, if not, whether the exercise of
such jurisdiction was improper?

It was urged by the learned counsel for the petitionerrespondent
that disputes inter se parties in connection
with a litigation can be referred to Lok Adalat, but when a
joint petition was filed by both the parties to the lis,
seeking divorce on mutual consent, there was no dispute
inter se them and, accordingly, the petition for divorce by
mutual consent could not be referred to Lok Adalat. It was
additionally contended that it was incumbent upon the
Court before referring the petition for divorce by mutual
consent to satisfy itself that the dispute is such that the
same may be resolved through the intervention of Lok
8
Adalat, but in the instant case, the same was not done. It
was contended that in any event, before expiry of six
months from the date of presentation of a petition for
divorce on mutual consent, neither the court nor Lok
Adalat could deal with the same and, accordingly, Lok
Adalat, as on the date of passing of the decree for divorce
on mutual consent, lacked inherent jurisdiction to pass the
decree. Additionally, it was stated that in any event, it was
the bounded duty of Lok Adalat to wait for six months from
the date of presentation of the petition for divorce on
mutual consent in order to afford the parties to the petition
an opportunity to reconsider their consent for divorce on
mutual consent and that having not been done, the decree
for divorce is improper.

The learned counsel for the appellant submitted that
it is not the disputes but a lis that can be referred to Lok
9
Adalat and when both the parties are seeking such
reference, it is not necessary for the court to satisfy that
the lis may be referred to Lok Adalat, which satisfaction
becomes necessary when the request for reference is
made by one of the parties to the lis. By referring to
various judgments, the learned counsel for the appellant
submitted that the wait period of six months is not
mandatory, the same is directory. He additionally
submitted that since Lok Adalat did not lack inherent
jurisdiction, the decree of divorce granted by Lok Adalat
cannot be said to be illegal but may only be said to be an
improper exercise of jurisdiction, and since such
jurisdiction was exercised at the request of the petitionerrespondent
also, the petitioner-respondent is estopped
from contending that exercise of such jurisdiction by Lok
Adalat was improper.

10

In reply, the learned counsel for the petitionerrespondent
contended that parties to a lis, even by
agreement, cannot vest jurisdiction in a court or an
Authority which does not have jurisdiction, which can only
be vested by a statute.

In order to appreciate respective contentions and
submissions of the parties, it would be necessary for us to
look into the laws governing the field. Before we take a
closer look at Section 15 of the Act, it would be
appropriate on our part to take note of certain salient
features of said Section. A decree for divorce by mutual
consent, if is to be had under Section 15 of the Act, both
the parties to the marriage together are required to file a
petition therefor. They can do so only when they have
been living separately for a period of one year at least
11
before presentation of the petition. They must say in the
petition that they have mutually agreed that the marriage
should be dissolved. Once such a petition is filed, both the
parties are required to move the court to seek divorce by
mutual consent, but they can so move not before expiry of
six months from the date of presentation of the petition
and not later than eighteen months from the said date. It
provides that the petition may be withdrawn in the
meantime, i.e., within eighteen months after presentation
thereof. When the Court is thus moved, it becomes
obligatory for the Court to hear the parties and to make
inquiries and to be satisfied that the marriage had been
solemnized and that the averments made in the petition
are true. Only then the court may pass a decree of divorce
which shall be effective from the date of the decree.

12

When, therefore, a joint petition for dissolution of
marriage by mutual consent is filed, apparently, there is no
dispute inter se parties to the petition as regards the
object thereof. Therefore, if a dispute between the parties
to the lis can only be referred to Lok Adalat, then of
course, a petition for divorce by mutual consent can not be
referred to Lok Adalat. At the same time, it is settled law
that if the forum, even if chosen or agreed to by the
parties, lacks inherent jurisdiction, any thing done by the
said forum is per se illegal.

We are, therefore, required to look at the appropriate
provisions of law. Section 18 of the Jammu and Kashmir
Legal Services Authorities Act, 1997, deals with Lok
Adalats. Sub-section 4 thereof provides as follows:
“(4) Lok Adalat shall have jurisdiction to
determine and to arrive at a compromise or
13
settlement between the parties to a dispute in
respect of,–

(i) any case pending before; or

(ii) any matter which is falling within the
jurisdiction of and is not brought
before, any court for which the Lok
Adalat is organized:

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.”

We have to understand the meaning of the words
“parties to a dispute in respect of any case pending
before”. Whereas, the learned counsel for the appellant
submitted that the words “parties to a dispute” have been
used to confine vesting of jurisdiction to arrive at a
compromise or settlement between them and not to others
or strangers; the learned counsel for the petitionerrespondent
submitted that unless there is a dispute, there
cannot be parties thereto.

14

A compromise or settlement, no doubt, can be
arrived at between warring parties or between disputing
parties. When an application is filed by both parties
seeking same relief, it may be correctly contended that
they are neither warring nor disputing parties. However,
the object of vesting jurisdiction in Lok Adalat is to arrive
at a compromise or settlement between the parties to a
dispute in any case pending before any court for which
Lok Adalat is organized. A dispute in respect of any case
pending before any court for which Lok Adalat is
organized means any dispute in relation thereto and not
necessarily a dispute arising out of the disagreement
between parties. There may not be any dispute in
between the parties to a petition for divorce by mutual
consent but since vesting of jurisdiction in Lok Adalat is to
arrive at a compromise or settlement in between them, the
15
dispute may be in respect of the very case pending before
the court for which Lok Adalat is organized, including
those pertaining to the obligation of the court to resolve
the lis. Therefore, it would not be appropriate to hold that
unless there is a dispute between the parties in any case
pending before any court; Lok Adalat shall have no
jurisdiction to arrive at a compromise or settlement
between such parties. It is true that ordinarily dispute
means ‘disagreement’ and, accordingly, parties to a
dispute would ordinarily mean ‘parties who disagree’ and
vesting of jurisdiction in Lok Adalat is to arrive at a
compromise or settlement in between them. Accordingly,
ordinarily, when there is a disagreement between the
parties in any case pending before a court for which Lok
Adalat is organized, Lok Adalat shall have jurisdiction, but
limiting thus and no further would be a too narrow
16
construction, for, as we have stated above, the parties to a
dispute would not mean, only the parties who are in
disagreement, but also those parties who seek redressal
through the intervention of court, may be they are seeking
same relief in agreement with each other. In Smt. Shilpa
v. Abhinav,
reported in 2008 AIRSCW 8033, a petition for
divorce by mutual consent has been entertained by Lok
Adalat of the Hon’ble Supreme Court, which suggests that
Lok Adalat organized for Hon’ble Supreme Court had
authority to do what it did.

Learned counsel for the petitioner-respondent
submitted that in the judgment referred to above, the
question of jurisdiction of Lok Adalat was not addressed.
He submitted that if the interpretation we have given is
accepted, then the words ‘to a dispute’, as provided in
Sub-section 4 of Section 18 of the Act, would become
17
otiose. He submitted that without reading the said words in
the Statute, the same meaning, as we have given, can be
had by reading ‘between the parties in respect of any case
pending before’. It is true that in the case referred to
above, the question whether the Hon’ble Supreme Court
Lok Adalat has jurisdiction over a petition for grant of
divorce by mutual consent was not gone into. However,
the interpretation given by us would not make the words
‘to a dispute’, used in Sub-section 4 of Section 18 of the
Act, otiose, inasmuch as vesting of jurisdiction in Lok
Adalat to arrive at a compromise or settlement is not only
in between the parties in respect of any case pending
before any court for which Lok Adalat is organized, but
also in relation to a dispute, but such dispute need not be
a dispute in between them, but may be also with regard to
the case pending before the court, settlement whereof
18
does not depend only on agreement of the parties but also
depends upon other factors, including satisfaction of the
court as a pre-condition for obtaining what the parties
desired to obtain by consent or agreement. In terms of
Section 28 (1) (c) of the Jammu and Kashmir Hindu
Marriage Act, 1980, when a divorce is sought on the
ground of mutual consent, the court is required to be
satisfied that the consent has not been obtained by force,
fraud or undue influence and, therefore, an application for
grant of divorce on the ground of mutual consent
inherently raises a dispute as to whether the consent has
been obtained by force, fraud or undue influence.
We, therefore, hold that Lok Adalat has jurisdiction in
respect of a petition presented for obtaining divorce by
mutual consent and it does not lack inherent jurisdiction in
respect thereof.

19

In terms of Sub-section (1) of Section 19 of the
Jammu and Kashmir Legal Services Authorities Act, if the
parties agree, the court is bound to refer the case to Lok
Adalat. Only when one of the parties makes an application
for referring the case to Lok Adalat, the court is required to
satisfy that there are chances of settlement and that the
matter is an appropriate one to be taken cognizance of by
Lok Adalat. In the instant case, the parties agreed and,
accordingly, the court had no other option but to refer the
case to Lok Adalat.

Sub-section (2) of Section 15 of the Jammu and
Kashmir Hindu Marriage Act, 1980 is as follows:-
“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 subsection
(1) and not later than eighteen months
after the said date, if the petition is not withdrawn
20
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 decree of
divorce declaring the marriage to be dissolved
with effect from the date of the decree.”

It is, therefore, clear that the court can be
activated to consider a petition for divorce by mutual
consent on the motion of both the parties. The
embargo is on the parties. They can move the court not
earlier than six months after the date of the
presentation of the petition. It does not say that before
expiry of six months after the date of the presentation
of the petition, the court shall have no power to
consider the petition. Therefore, if the court considers
the petition on the motion of both the parties made
earlier than six months after the date of presentation of
the petition, it would not be appropriate to hold that the
21
court lacked inherent jurisdiction to consider the
petition when the same was considered. It is true that
the object of the sub-section is to grant the parties to
reconsider the consent given by them within a period of
at least six months after the date of presentation of the
petition and, accordingly, it would be appropriate on the
part of the court not to permit the parties to move the
court for consideration of the petition before expiry of at
least six months after the date of presentation of the
petition, but if the court does not do so, it cannot be
said because the court did not do so, it lacked
jurisdiction to consider the petition, for, despite the
embargo, the parties moved earlier.

It is one thing that the court had no jurisdiction at
all, i.e., it lacked inherent jurisdiction, the other is that
the court had jurisdiction but it exercised such
22
jurisdiction improperly. The consequence of the first
episode would be total nullity; whereas exercise of
improper jurisdiction would result in a wrong order. In
order to understand the outcome of exercise of
jurisdiction by the court which lacked inherent
jurisdiction and the outcome of exercise of jurisdiction
by the court when it did not lack inherent jurisdiction but
decided the same illegally or incorrectly, we have taken
note of the judgment of the Hon’ble Supreme Court
rendered in the case of Official Trustee, West Bengal
v. Suchindra Nath Chatterjee,
reported in AIR 1969
SC 823, where the Hon’ble Supreme Court held that
what is relevant is whether the court had the power to
grant the relief asked for in the application made to it
and that if the court had competence to pronounce on
the issue presented for its decision then the fact that it
23
decided that issue illegally or incorrectly, is wholly
besides the point. Since we have held that neither the
court lacked inherent jurisdiction to refer the case to
Lok Adalat, nor Lok Adalat lacked inherent jurisdiction
to pass the decree for divorce by mutual consent as on
the date it passed the same, it cannot be said that the
reference to Lok Adalat and the decree for divorce
passed by Lok Adalat are nullity.

It is true that a writ of certiorari can be sought to
correct an illegal order passed by an inferior authority.
We are ad idem with the learned counsel for the
petitioner-respondent that Lok Adalat should not have
permitted the parties to move it to have the petition for
divorce considered by them before expiry of six months
from the date of presentation thereof, but not having
done so at the instance of the petitioner-respondent
24
too, it would be inappropriate on our part to permit the
petitioner-respondent to question such inaction on the
part of Lok Adalat. It is true that the parties, by consent,
cannot vest jurisdiction to a court which does not have
jurisdiction to entertain the litigation, but as aforesaid,
the bar in Section 15 (2) of the Jammu and Kashmir
Hindu Marriage Act, 1980, is not on the court but is on
the parties, and if the parties have breached the bar
consciously, they cannot be permitted to take
advantage thereof.

It was contended that the public policy of giving an
opportunity to rethink, as contained in sub-section 2 of
Section 15 of the Jammu and Kashmir Hindu Marriage
Act, 1980, would be defeated if the decree passed by
Lok Adalat is not interfered with. It is true that sub25
section 2 of Section 15 of the Act contains a public
policy whereby and under it grants time of at least six
months to the parties to rethink the consent given by
them for dissolution of their marriage, but a person,
who did not wait for the time given for such rethinking,
cannot be permitted to turn around and contend that he
should be permitted to rethink after having had
concluded the matter at his/her own volition.
It was contended that the said decree was
obtained by fraud, coercion and intimidation. There was
no scope to prove the same in a writ petition. For that,
it was obligatory on the part of the petitionerrespondent
to approach Lok Adalat.

26

For the reasons as above, we set aside the
judgment and order under appeal and dismiss the writ
petition.

(Mansoor Ahmed Mir) (Barin Ghosh)
Judge Chief Justice.

Jammu,
30.03.2009
Tilak, Secy.

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