{"id":243743,"date":"2009-03-30T00:00:00","date_gmt":"2009-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajinder-kumar-sharma-vs-jyoti-sharma-on-30-march-2009"},"modified":"2016-05-03T10:36:19","modified_gmt":"2016-05-03T05:06:19","slug":"rajinder-kumar-sharma-vs-jyoti-sharma-on-30-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajinder-kumar-sharma-vs-jyoti-sharma-on-30-march-2009","title":{"rendered":"Rajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009"},"content":{"rendered":"
Jammu High Court<\/div>\n
Rajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nLPAOW No. 64 OF 2006    \nRajinder Kumar Sharma  \nPetitioner\nJyoti Sharma \nRespondent  \n!Mr. Z. A. Shah, Senior Advocate with Mr. Vipan Gandotra, Advocate\n^M\/s. P. N. Raina, Rahul Bharti and Sindhu Sharma, Advocates \n\nHon'ble Mr. Justice Barin Ghosh, Chief Justice\nHon'ble Mr. Justice Mansoor Ahmad Mir, Judge  \n DATE: 30\/03\/2009 \n: J U D G M E N T :\n<\/pre>\n
Per Barin Ghosh, CJ:\n<\/p>\n
In the writ petition, which has been allowed by the
\njudgment and order under appeal, the petitioner2
\nrespondent sought a writ of certiorari quashing the
\nreference made to Lok Adalat and also the order passed
\nby Lok Adalat. It was contended that the reference to Lok
\nAdalat was impermissible. The said contention has been
\naccepted. It was also contended that Lok Adalat could not
\npass the order on the date the same was passed, as on
\nthat date, Lok Adalat had no authority to deal with the
\nmatter. The said contention too has been accepted.
\nThe facts giving rise to filing of the writ petition are
\nthat the appellant filed a petition seeking dissolution of his
\nmarriage with the petitioner-respondent by decree of
\ndivorce on the grounds of cruelty and desertion, which are
\navailable grounds in terms of Section 13 of the Jammu
\nand Kashmir Hindu Marriage Act, 1980. The petitionerrespondent
\nnot only contested the petition but also filed an
\napplication seeking dismissal thereof, since she returned
\n3<\/span>
\nto her matrimonial home and started residing with the
\nappellant. Upon dismissal of her application, the
\npetitioner-respondent also filed a revision application.
\nSoon after dismissal thereof, the appellant and the
\npetitioner respondent, on January 21, 2004, filed a petition
\nfor dissolution of their marriage by a decree of divorce on
\nmutual consent as may be had under Section 15 of the
\nAct. In the said petition, amongst others, they stated that
\nthey are government employees and have not cohabited
\nsince April 20, 2002. In the application, it was also stated
\nthat the appellant will pay a sum of Rs. 4.00 lacs in cash
\nor by way demand draft to the petitioner-respondent in lieu
\nof full and final maintenance. It was also stated that the
\npetitioner-respondent shall have one-third share in the
\nhouse of which the appellant was the owner. The petition
\ncontained the plan of the house and demarcated one-third
\n4<\/span>
\nportion thereof which would come to the share of the
\npetitioner-respondent.\n<\/p>\n
On January 21, 2004 itself, the appellant and the
\npetitioner-respondent deposed before court stating that
\nthey have of their own volition, after understanding the
\ntrue purport of the petition for divorce on mutual consent,
\nhave filed the same. After such deposition was recorded,
\nboth of them and their counsel requested the Court to put
\nup the case before Lok Adalat. In the circumstances, the
\nCourt by an order dated 21st January, 2004 directed the
\ncase to be put up before Lok Adalat on January 27, 2004.
\nOn January 27, 2004, the appellant as well as the
\npetitioner-respondent deposed before Lok Adalat and,
\nwhile doing so, not only stated that they want divorce on
\nthe terms and conditions contained in the said petition for
\n5<\/span>
\ndivorce on mutual consent, but also a decree to that effect
\nbe passed by Lok Adalat. Thereupon, before Lok Adalat,
\nthe appellant paid a sum of Rs. 1.00 lac in cash and
\nanother sum of Rs. 3.00 lacs by Demand Draft to the
\npetitioner-respondent on January 27, 2004. Thereafter,
\nLok Adalat on January 27, 2004 passed the order
\ndissolving the marriage of the appellant and the petitionerrespondent
\nafter recording that the appellant and the
\npetitioner-respondent were told in Lok Adalat to reconsider
\nthe petition for mutual divorce and were advised to live
\ntogether but they declined to do so.\n<\/p>\n
Soon thereafter, the writ petition was filed. In the writ
\npetition, it was contended that in relation to the petition for
\ndivorce by mutual consent, there was no dispute requiring
\ncompromise or settlement by Lok Adalat and, accordingly,
\nthe same could not be referred to Lok Adalat. It was also
\n6<\/span>
\nstated that the reference was bad, inasmuch as the court
\nfailed to record its satisfaction before referring the petition
\nfor divorce by mutual consent to Lok Adalat. It was also
\ncontended that the petition for mutual consent could not
\nbe decided on the date the same was purported to be
\ndecided by Lok Adalat, for, on the date the same was
\nconsidered and disposed of, Lok Adalat had no jurisdiction
\nto decide the same. As aforesaid, the Writ Court accepted
\nsuch contentions.\n<\/p>\n
We have heard at length the counsel appearing on
\nbehalf of the parties and have considered the materials
\nbefore us.\n<\/p>\n
The moot point urged was whether the Court lacked
\ninherent jurisdiction to refer the said petition for divorce on
\nmutual consent to Lok Adalat and, if not, whether the
\n7<\/span>
\nsame was improper exercise of jurisdiction? The other
\npoint is whether Lok Adalat lacked inherent jurisdiction to
\npass a decree for divorce on mutual consent on the date
\nthe same was passed and, if not, whether the exercise of
\nsuch jurisdiction was improper?\n<\/p>\n
It was urged by the learned counsel for the petitionerrespondent
\nthat disputes inter se parties in connection
\nwith a litigation can be referred to Lok Adalat, but when a
\njoint petition was filed by both the parties to the lis,
\nseeking divorce on mutual consent, there was no dispute
\ninter se them and, accordingly, the petition for divorce by
\nmutual consent could not be referred to Lok Adalat. It was
\nadditionally contended that it was incumbent upon the
\nCourt before referring the petition for divorce by mutual
\nconsent to satisfy itself that the dispute is such that the
\nsame may be resolved through the intervention of Lok
\n8<\/span>
\nAdalat, but in the instant case, the same was not done. It
\nwas contended that in any event, before expiry of six
\nmonths from the date of presentation of a petition for
\ndivorce on mutual consent, neither the court nor Lok
\nAdalat could deal with the same and, accordingly, Lok
\nAdalat, as on the date of passing of the decree for divorce
\non mutual consent, lacked inherent jurisdiction to pass the
\ndecree. Additionally, it was stated that in any event, it was
\nthe bounded duty of Lok Adalat to wait for six months from
\nthe date of presentation of the petition for divorce on
\nmutual consent in order to afford the parties to the petition
\nan opportunity to reconsider their consent for divorce on
\nmutual consent and that having not been done, the decree
\nfor divorce is improper.\n<\/p>\n
The learned counsel for the appellant submitted that
\nit is not the disputes but a lis that can be referred to Lok
\n9<\/span>
\nAdalat and when both the parties are seeking such
\nreference, it is not necessary for the court to satisfy that
\nthe lis may be referred to Lok Adalat, which satisfaction
\nbecomes necessary when the request for reference is
\nmade by one of the parties to the lis. By referring to
\nvarious judgments, the learned counsel for the appellant
\nsubmitted that the wait period of six months is not
\nmandatory, the same is directory. He additionally
\nsubmitted that since Lok Adalat did not lack inherent
\njurisdiction, the decree of divorce granted by Lok Adalat
\ncannot be said to be illegal but may only be said to be an
\nimproper exercise of jurisdiction, and since such
\njurisdiction was exercised at the request of the petitionerrespondent
\nalso, the petitioner-respondent is estopped
\nfrom contending that exercise of such jurisdiction by Lok
\nAdalat was improper.\n<\/p>\n
10<\/span><\/p>\n
In reply, the learned counsel for the petitionerrespondent
\ncontended that parties to a lis, even by
\nagreement, cannot vest jurisdiction in a court or an
\nAuthority which does not have jurisdiction, which can only
\nbe vested by a statute.\n<\/p>\n
In order to appreciate respective contentions and
\nsubmissions of the parties, it would be necessary for us to
\nlook into the laws governing the field. Before we take a
\ncloser look at Section 15 of the Act, it would be
\nappropriate on our part to take note of certain salient
\nfeatures of said Section. A decree for divorce by mutual
\nconsent, if is to be had under Section 15 of the Act, both
\nthe parties to the marriage together are required to file a
\npetition therefor. They can do so only when they have
\nbeen living separately for a period of one year at least
\n11<\/span>
\nbefore presentation of the petition. They must say in the
\npetition that they have mutually agreed that the marriage
\nshould be dissolved. Once such a petition is filed, both the
\nparties are required to move the court to seek divorce by
\nmutual consent, but they can so move not before expiry of
\nsix months from the date of presentation of the petition
\nand not later than eighteen months from the said date. It
\nprovides that the petition may be withdrawn in the
\nmeantime, i.e., within eighteen months after presentation
\nthereof. When the Court is thus moved, it becomes
\nobligatory for the Court to hear the parties and to make
\ninquiries and to be satisfied that the marriage had been
\nsolemnized and that the averments made in the petition
\nare true. Only then the court may pass a decree of divorce
\nwhich shall be effective from the date of the decree.\n<\/p>\n
12<\/span><\/p>\n
When, therefore, a joint petition for dissolution of
\nmarriage by mutual consent is filed, apparently, there is no
\ndispute inter se parties to the petition as regards the
\nobject thereof. Therefore, if a dispute between the parties
\nto the lis can only be referred to Lok Adalat, then of
\ncourse, a petition for divorce by mutual consent can not be
\nreferred to Lok Adalat. At the same time, it is settled law
\nthat if the forum, even if chosen or agreed to by the
\nparties, lacks inherent jurisdiction, any thing done by the
\nsaid forum is per se illegal.\n<\/p>\n
We are, therefore, required to look at the appropriate
\nprovisions of law. Section 18 of the Jammu and Kashmir
\nLegal Services Authorities Act, 1997, deals with Lok
\nAdalats. Sub-section 4 thereof provides as follows:
\n“(4) Lok Adalat shall have jurisdiction to
\ndetermine and to arrive at a compromise or
\n13<\/span>
\nsettlement between the parties to a dispute in
\nrespect of,–\n<\/p>\n
(i) any case pending before; or\n<\/p>\n
(ii) any matter which is falling within the
\njurisdiction of and is not brought
\nbefore, any court for which the Lok
\nAdalat is organized:\n<\/p>\n
Provided that the Lok Adalat shall have no
\njurisdiction in respect of any case or matter
\nrelating to an offence not compoundable under
\nany law.”\n<\/p>\n
We have to understand the meaning of the words
\n“parties to a dispute in respect of any case pending
\nbefore”. Whereas, the learned counsel for the appellant
\nsubmitted that the words “parties to a dispute” have been
\nused to confine vesting of jurisdiction to arrive at a
\ncompromise or settlement between them and not to others
\nor strangers; the learned counsel for the petitionerrespondent
\nsubmitted that unless there is a dispute, there
\ncannot be parties thereto.\n<\/p>\n
14<\/span><\/p>\n
A compromise or settlement, no doubt, can be
\narrived at between warring parties or between disputing
\nparties. When an application is filed by both parties
\nseeking same relief, it may be correctly contended that
\nthey are neither warring nor disputing parties. However,
\nthe object of vesting jurisdiction in Lok Adalat is to arrive
\nat a compromise or settlement between the parties to a
\ndispute in any case pending before any court for which
\nLok Adalat is organized. A dispute in respect of any case
\npending before any court for which Lok Adalat is
\norganized means any dispute in relation thereto and not
\nnecessarily a dispute arising out of the disagreement
\nbetween parties. There may not be any dispute in
\nbetween the parties to a petition for divorce by mutual
\nconsent but since vesting of jurisdiction in Lok Adalat is to
\narrive at a compromise or settlement in between them, the
\n15<\/span>
\ndispute may be in respect of the very case pending before
\nthe court for which Lok Adalat is organized, including
\nthose pertaining to the obligation of the court to resolve
\nthe lis. Therefore, it would not be appropriate to hold that
\nunless there is a dispute between the parties in any case
\npending before any court; Lok Adalat shall have no
\njurisdiction to arrive at a compromise or settlement
\nbetween such parties. It is true that ordinarily dispute
\nmeans ‘disagreement’ and, accordingly, parties to a
\ndispute would ordinarily mean ‘parties who disagree’ and
\nvesting of jurisdiction in Lok Adalat is to arrive at a
\ncompromise or settlement in between them. Accordingly,
\nordinarily, when there is a disagreement between the
\nparties in any case pending before a court for which Lok
\nAdalat is organized, Lok Adalat shall have jurisdiction, but
\nlimiting thus and no further would be a too narrow
\n16<\/span>
\nconstruction, for, as we have stated above, the parties to a
\ndispute would not mean, only the parties who are in
\ndisagreement, but also those parties who seek redressal
\nthrough the intervention of court, may be they are seeking
\nsame relief in agreement with each other. In Smt. Shilpa
\nv. Abhinav,<\/a> reported in 2008 AIRSCW 8033, a petition for
\ndivorce by mutual consent has been entertained by Lok
\nAdalat of the Hon’ble Supreme Court, which suggests that
\nLok Adalat organized for Hon’ble Supreme Court had
\nauthority to do what it did.\n<\/p>\n
Learned counsel for the petitioner-respondent
\nsubmitted that in the judgment referred to above, the
\nquestion of jurisdiction of Lok Adalat was not addressed.
\nHe submitted that if the interpretation we have given is
\naccepted, then the words ‘to a dispute’, as provided in
\nSub-section 4 of Section 18 of the Act, would become
\n17<\/span>
\notiose. He submitted that without reading the said words in
\nthe Statute, the same meaning, as we have given, can be
\nhad by reading ‘between the parties in respect of any case
\npending before’. It is true that in the case referred to
\nabove, the question whether the Hon’ble Supreme Court
\nLok Adalat has jurisdiction over a petition for grant of
\ndivorce by mutual consent was not gone into. However,
\nthe interpretation given by us would not make the words
\n‘to a dispute’, used in Sub-section 4 of Section 18 of the
\nAct, otiose, inasmuch as vesting of jurisdiction in Lok
\nAdalat to arrive at a compromise or settlement is not only
\nin between the parties in respect of any case pending
\nbefore any court for which Lok Adalat is organized, but
\nalso in relation to a dispute, but such dispute need not be
\na dispute in between them, but may be also with regard to
\nthe case pending before the court, settlement whereof
\n18<\/span>
\ndoes not depend only on agreement of the parties but also
\ndepends upon other factors, including satisfaction of the
\ncourt as a pre-condition for obtaining what the parties
\ndesired to obtain by consent or agreement. In terms of
\nSection 28 (1) (c) of the Jammu and Kashmir Hindu
\nMarriage Act, 1980, when a divorce is sought on the
\nground of mutual consent, the court is required to be
\nsatisfied that the consent has not been obtained by force,
\nfraud or undue influence and, therefore, an application for
\ngrant of divorce on the ground of mutual consent
\ninherently raises a dispute as to whether the consent has
\nbeen obtained by force, fraud or undue influence.
\nWe, therefore, hold that Lok Adalat has jurisdiction in
\nrespect of a petition presented for obtaining divorce by
\nmutual consent and it does not lack inherent jurisdiction in
\nrespect thereof.\n<\/p>\n
19<\/span><\/p>\n
In terms of Sub-section (1) of Section 19 of the
\nJammu and Kashmir Legal Services Authorities Act, if the
\nparties agree, the court is bound to refer the case to Lok
\nAdalat. Only when one of the parties makes an application
\nfor referring the case to Lok Adalat, the court is required to
\nsatisfy that there are chances of settlement and that the
\nmatter is an appropriate one to be taken cognizance of by
\nLok Adalat. In the instant case, the parties agreed and,
\naccordingly, the court had no other option but to refer the
\ncase to Lok Adalat.\n<\/p>\n
Sub-section (2) of Section 15 of the Jammu and
\nKashmir Hindu Marriage Act, 1980 is as follows:-
\n“2. On the motion of both the parties made not
\nearlier than six months after the date of the
\npresentation of the petition referred to in subsection
\n(1) and not later than eighteen months
\nafter the said date, if the petition is not withdrawn
\n20<\/span>
\nin the meantime, the court shall, on being
\nsatisfied, after hearing the parties and after
\nmaking such inquiry as it thinks fit, that a
\nmarriage has been solemnized and that the
\naverments in the petition are true, pass decree of
\ndivorce declaring the marriage to be dissolved
\nwith effect from the date of the decree.”\n<\/p>\n
It is, therefore, clear that the court can be
\nactivated to consider a petition for divorce by mutual
\nconsent on the motion of both the parties. The
\nembargo is on the parties. They can move the court not
\nearlier than six months after the date of the
\npresentation of the petition. It does not say that before
\nexpiry of six months after the date of the presentation
\nof the petition, the court shall have no power to
\nconsider the petition. Therefore, if the court considers
\nthe petition on the motion of both the parties made
\nearlier than six months after the date of presentation of
\nthe petition, it would not be appropriate to hold that the
\n21<\/span>
\ncourt lacked inherent jurisdiction to consider the
\npetition when the same was considered. It is true that
\nthe object of the sub-section is to grant the parties to
\nreconsider the consent given by them within a period of
\nat least six months after the date of presentation of the
\npetition and, accordingly, it would be appropriate on the
\npart of the court not to permit the parties to move the
\ncourt for consideration of the petition before expiry of at
\nleast six months after the date of presentation of the
\npetition, but if the court does not do so, it cannot be
\nsaid because the court did not do so, it lacked
\njurisdiction to consider the petition, for, despite the
\nembargo, the parties moved earlier.\n<\/p>\n
It is one thing that the court had no jurisdiction at
\nall, i.e., it lacked inherent jurisdiction, the other is that
\nthe court had jurisdiction but it exercised such
\n22<\/span>
\njurisdiction improperly. The consequence of the first
\nepisode would be total nullity; whereas exercise of
\nimproper jurisdiction would result in a wrong order. In
\norder to understand the outcome of exercise of
\njurisdiction by the court which lacked inherent
\njurisdiction and the outcome of exercise of jurisdiction
\nby the court when it did not lack inherent jurisdiction but
\ndecided the same illegally or incorrectly, we have taken
\nnote of the judgment of the Hon’ble Supreme Court
\nrendered in the case of Official Trustee, West Bengal
\nv. Suchindra Nath Chatterjee,<\/a> reported in AIR 1969
\nSC 823, where the Hon’ble Supreme Court held that
\nwhat is relevant is whether the court had the power to
\ngrant the relief asked for in the application made to it
\nand that if the court had competence to pronounce on
\nthe issue presented for its decision then the fact that it
\n23<\/span>
\ndecided that issue illegally or incorrectly, is wholly
\nbesides the point. Since we have held that neither the
\ncourt lacked inherent jurisdiction to refer the case to
\nLok Adalat, nor Lok Adalat lacked inherent jurisdiction
\nto pass the decree for divorce by mutual consent as on
\nthe date it passed the same, it cannot be said that the
\nreference to Lok Adalat and the decree for divorce
\npassed by Lok Adalat are nullity.\n<\/p>\n
It is true that a writ of certiorari can be sought to
\ncorrect an illegal order passed by an inferior authority.
\nWe are ad idem with the learned counsel for the
\npetitioner-respondent that Lok Adalat should not have
\npermitted the parties to move it to have the petition for
\ndivorce considered by them before expiry of six months
\nfrom the date of presentation thereof, but not having
\ndone so at the instance of the petitioner-respondent
\n24<\/span>
\ntoo, it would be inappropriate on our part to permit the
\npetitioner-respondent to question such inaction on the
\npart of Lok Adalat. It is true that the parties, by consent,
\ncannot vest jurisdiction to a court which does not have
\njurisdiction to entertain the litigation, but as aforesaid,
\nthe bar in Section 15 (2) of the Jammu and Kashmir
\nHindu Marriage Act, 1980, is not on the court but is on
\nthe parties, and if the parties have breached the bar
\nconsciously, they cannot be permitted to take
\nadvantage thereof.\n<\/p>\n
It was contended that the public policy of giving an
\nopportunity to rethink, as contained in sub-section 2 of
\nSection 15 of the Jammu and Kashmir Hindu Marriage
\nAct, 1980, would be defeated if the decree passed by
\nLok Adalat is not interfered with. It is true that sub25
\nsection 2 of Section 15 of the Act contains a public
\npolicy whereby and under it grants time of at least six
\nmonths to the parties to rethink the consent given by
\nthem for dissolution of their marriage, but a person,
\nwho did not wait for the time given for such rethinking,
\ncannot be permitted to turn around and contend that he
\nshould be permitted to rethink after having had
\nconcluded the matter at his\/her own volition.
\nIt was contended that the said decree was
\nobtained by fraud, coercion and intimidation. There was
\nno scope to prove the same in a writ petition. For that,
\nit was obligatory on the part of the petitionerrespondent
\nto approach Lok Adalat.\n<\/p>\n
26<\/span><\/p>\n
For the reasons as above, we set aside the
\njudgment and order under appeal and dismiss the writ
\npetition.\n<\/p>\n
(Mansoor Ahmed Mir) (Barin Ghosh)
\nJudge Chief Justice.\n<\/p>\n
Jammu,
\n30.03.2009
\nTilak, Secy.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-243743","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nRajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajinder-kumar-sharma-vs-jyoti-sharma-on-30-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009 - 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