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2006 Legal Eagle(J&K) 280

IN THE JAMMU & KASHMIR HIGH COURT

Equivalent Citations : 2007 AIR(J&K) 35 : 2007 (1) JKJ 5 : 2007 SriLJ 338

Before : BASHIR A.KIRMANI, J.

Joti Sharma
Versus

Rajinder Kumar

Case No. : OWP No. 698 of 2004

Date of Decision : 30-Oct-2006

Advocates Appeared:
P. N. Raina with Mrs. Sidhu Sharma, Mrs. Sema Sekhar

HEADNOTE :
Hindu Marriage Act[J&K] -- Section 13, 15 and 28 to 21 -- award for dissolution of marriage under
Hindu Marriage Act passed by the Lok Adalat with consent of parties but without waiting for statutory
period of six months prescribed by section 15 of J&K Hindu Marriage Act- such award held illegal.

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Hindu Marriage Act[J&K] -- Section 13, 15 and 28[J&K] -- Parties seeking dissolution of marriage by
mutual consent -- under section 28 matter can be referred to any person for reconciliation which may
include Lok Adalat but Lok Adalat cannot pass final decree of dissolution.

Legal Services Authorities Act (J&K ), 1977 -- Section 19 to 21 -- Lok adalat cannot give a go bye to
express provision of law- award for dissolution of marriage under Hindu Marriage Act passed by the
Lok Adalat without waiting for statutory period of six months prescribed by section 15 -- award illegal.

Legal Services Authorities Act (J&K ), 1977 -- Section 19 to 21 -- Section 19 to 21 &28(3):- Parties
seeking dissolution of marriage by mutual consent -- matter can be referred to Lok Adalat for
adjudication but lok adalat cannot pass final award or decree.

STATUTES REFERRED:
1. Constitution of India,1950, Article 226
2. Hindu Marriage Act,1980, Section 15
3. Legal Services Authority Act,1997(J&K), Section 19(4)

CASES REFERRED:

JUDGMENT/ORDER:

Judgement

The marriage between petitioner and first respondent was solemnized in 1995 and out of wedlock two
children were born. In February, 2000 respondent filed an application for dissolution of marriage under
Section 13 of Hindu Marriage Act (hereinafter called as "the Act") which was contested by parties till
21st January, 2004 when they filed a joint application under section 15 of the Act for divorce by mutual
consent. On the same day on request of appearing counsel, learned trial Judge (Additional District Judge,
Matrimonial/Cases, Jammu) referred the matter for settlement to Lok Adalat which was constituted on

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27-1-2004. In acceptance of the joint request for divorce by mutual consent the Lok Adalat awarded a
divorce decree while allowing custody of children to remain with respondent-father.

2. Aggrieved by award of Lok Adalat, the petitioner has instituted this writ petition to have the same
quashed on the grounds that respondent threatened and coerced her into signing the petition for
divorce by mutual consent and won over her Advocate to manage the impugned award from concerned
Lok Adalat, which was bad for want of proper observance of the requirement of Section 15 of the Act,
besides being incompetent for want of jurisdiction on part of Lok Adalat to take cognizance of the
matter. It is also alleged that even the reference made by learned trial Judge to Lok Adalat was bad
because with presentation of the allegedly consented application for divorce no dispute survived
between the parties which could be referred for settlement. Materials appended with memo of petition
are the copies of impugned order and statements of parties as recorded by Lok Adalat and other
applications purporting to have been filed before the trial Court from time to time.

3. In his counter-affidavit the respondent while taking preliminary objection to maintainability of the
writ petition has pleaded that the Lok Adalat is not amenable to writ jurisdiction of the High Court.
Denying that respondent pressurized petitioner for filing the joint application for divorce by mutual
consent he further pleaded that since their marriage had totally broken down with differences between
them having aggravated to the point of no return the parties were locked in litigation, which persuaded
both of them to opt for dissolution of marriage and accordingly they filed a petition for divorce by
mutual consent before the trial Court, who rightly referred the matter to Lok Adalat which in exercise of
its jurisdiction passed the impugned award in accordance with law. It is also alleged that petitioner has
suppressed certain facts particularly the one relating to receipt of amount by her under the impugned
award and had, therefore, not come to the Court with clean hands.

4. In her rejoinder to respondents counter affidavit the petitioner has further contended that the Lok
Adalat is amenable to writ jurisdiction of the High Court particularly in cases where its awards result in
miscarriage of justice, and that by levelling false factual allegations against her, the respondent had tried
to take the matter in the realm of intricate facts which did not attend the matter in its essence. In
addition she has controverted all factual pleas taken by respondent in the counter affidavit. During
course of arguments, learned counsel have reiterated the contents of their pleading with reference to
annexures on record.

5. I have heard learned counsel and considered the matter. Within the given frame of conflict as
projected at bar, the questions that arise for determination are : First, whether any dispute between the
parties survived after presentation of the joint petition before trial Court, and whether it was proper for

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learned trial Judge to have referred the matter to Lok Adalat; Secondly, whether it was proper for Lok
Adalat to pass a decree immediately after acceptance of application for divorce by mutual consent
without waiting for the statutory waiting period of six months in terms of Sec. 15 of the Act, and thirdly,
whether an award/decree passed by Lok Adalat would be amenable to writ jurisdiction of the High
Court. On answer of the questions depends the outcome of this petition.

6. To start with it would be apt to first consider the amenability of Lok Adalat to writ jurisdiction of this
Court for judicial scrutiny of the decisions arrived at by it in a particular case. In this behalf it would be
appropriate to mention that Lok Adalats are constituted under Chapter VI of the Legal Services
Authorities Act of 1997. This Chapter comprises of four Sections - 18 to 21. Section 18 provides for
organization of Lok Adalat by prescribing that State Authority or a District Authority or the High Court
Legal Services Committee or a Tehsil legal service committee as the case may be, may organize the Lok
Adalats at such intervals or places as it thinks fit, for specific areas to be specified by the concerned
authority which may consist of serving or retired Judicial Officers and other suitable persons, and shall
have jurisdiction to determine disputes or to arrive at compromise or settlement between the parties in
respect of any case pending before any Court or which is otherwise brought before it except the
offences not compoundable under any law. Section 19 covers cognizance of cases by Lok Adalats and
the procedure to be adopted by them for settlement of disputes. Sub-section (4) of Sec. 19 very clearly
provides that while determining any reference before it under this Act or to arrive at compromise or
settlement between the parties, the Lok Adalat shall be guided by the principles of justice, equity, fair
play and other legal principles whereafter it shall make an award in terms of Section 20 which shall be
deemed to be a decree of Civil Court or as the case may be, an order of any other Court, final in the
nature and binding on all parties to the dispute and no appeal shall lie to any Court against the award.
Under Section 21 a Lok Adalat while acting under the Act has all the powers vested in a Civil Court under
Civil Procedure Code in respect of summoning, and enforcing attendance of witnesses and their
examination, discovery and production of documents, reception of evidence on affidavits, requisition of
record and other matters those may be specifically prescribed. For its broad functioning the Lok Adalat
is within its powers to specify its own procedure for determination of any dispute coming before it.
Under sub-section (3) thereof, all proceedings before Lok Adalat are deemed to be judicial proceedings
for purposes of certain provisions of Criminal Procedure and Ranbir Penal Code etc. It thus transpires
that Lok Adalat is a creation of Legal Services Authorities Act whereunder it comes into existence and its
powers/functions and mode of functioning are all prescribed thereunder which sufficiently clothes it
with all the attributes of a statutory authority tribunal constituted under a statute and is as such
deemed to be amenable to writ jurisdiction of the High Court, wherefrom it necessarily follows that
awards passed by Lok Adalats are open to judicial scrutiny in exercise of writ jurisdiction, particularly for
want of any other alternative remedy much less an efficacious one, so much so that even an appeal
against an award of Lok Adalat is expressly prohibited under sub-section (2) of Section 20 aforesaid. In
addition to that in order to prevent the Lok Adalat from becoming susceptible to any trends of
arbitrariness for want of a statutory/appeal remedy against its awards, it is necessary that the writ
jurisdiction of High Court takes awards passed by Lok Adalat within its fold. The only consideration

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which appears to be contrary to that view is an apprehension that amenability of awards of Lok Adalat
to exercise of writ jurisdiction may in some manner dilute the efficacy of Lok Adalat system and
persuade litigants to resile from awards otherwise based on their agreements. This consideration by
itself, would not mitigate the position that Lok Adalat being a statutory authority is as such subject to
writ jurisdiction, and not immune to fallibility. The maximum, however, that can be aspired for in that
regard is that the writ Courts exercise jurisdiction very sparingly and only in exceptional cases in order to
prevent the failure of justice, arbitrariness or illegalities. In conclusion, therefore, the answer to
question would be that an award passed by Lok Adalat would be subject to judicial scrutiny of High
Court in exercise of writ jurisdiction. This also answers the respondents objection to maintainability of
writ petition taken on the count that a writ would not lie with a private person being in the array of
respondents. As a matter of fact, the amenability of Lok Adalat to writ jurisdiction as already discussed
renders the objection redundant because in essence the writ petition is directed against the Lok Adalats
award and not the respondent per se. For the sake of technical convenience, however, the Lok Adalat is
hereby arrayed as a party to this writ petition.

7. Next comes the question whether award as passed by Lok Adalat in the matter suffers from any
illegality. As already said the whole controversy emanates from award of the Lok Adalat passed on a
petition filed by parties under Section 15 of Hindu Marriage Act, 1980 (hereinafter to be called "the H M
Act") for divorce by mutual consent. So before proceedings ahead it would be appropriate to notice the
provisions of Section 15 of HM Act whereunder a petition for dissolution of marriage by decree of
divorce may be presented to the District Court by both parties to a marriage together, on the ground
that they have been living separately for a period of one year or more because of not having been able
to live together due to which they had mutually agreed the marriage to be dissolved. On such motion
the Court shall after hearing the parties and making such enquiry as it thinks fit pass a decree of divorce
declaring the marriage to be dissolved with effect from the date of the decree, but not earlier than six
months after the date of presentation of the petition or latter than eighteen months after the said date.
Since the petition for divorce was referred to Lok Adalat by the concerned trial Judge and was covered
under the said provision it was required to be dealt with in strict accordance therewith even by the Lok
Adalat. As percolates from record, however, the petition appears to have been presented on 21-1-2004
and after its reference to Lok Adalat has been decided by a decree of divorce on 27-1-2004, i.e. within
one month, which on the face of it violates the provisions of sub-sec. (2) of Sec. 15 of HM Act
whereunder after institution, such application is required to lie over for six months and then come up
only if either of the parties has not withdrawn his or her consent in the meanwhile. This provision as a
matter of fact has been granted in the HM Act in keeping with the concept of marriage under ancient
Hindu Law whereunder it is a sacred and unbreakable partnership of two souls. It was only after HM Act
was passed that provisions for dissolution of marriages and divorce etc. were incorporated in Hindu Law
but while doing so enough care was taken to prevent marriage from breaking down; so room was kept
for persuading the warring couples to maintain their matrimonial relations and save them from breaking
up. It is in that background that sub-section (2) of Sec. 15 was incorporated to give a breathing time to
couples to rethink the consequences etc; of their separation and try to settle down amicably. Viewed

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thus this provision appears to be integral to the concept of divorce by mutual consent as contained in
Sec. 15 of HM Act and could not have been over looked by the Lok Adalat while disposing of the
reference. Otherwise also the Lok Adalat cannot be expected to give a go by to express provision of law
while trying settlement of disputes for the simple reason, that if done it may not only lead to
arbitrariness, but also convert the Dispute resolution system into a system of faulty adjudication,
resulting in some sort of legal anarchy. On that count, I feel that the Lok Adalat indulged in undesirable
haste while awarding the decree of divorce.

8. That takes me to the question whether it was proper for the trial Court to refer the matter to Lok
Adalat even while parties had expressly said that they wanted to have the marriage dissolved by mutual
consent. In other words what the parties submitted before the trial Court was that they had resolved
their dispute by consenting to mutual divorce and as such no dispute existed between them that could
be referred for settlement to the Lok Adalat. The simple thing perhaps that was required to be done at
his level was to record the statements and keep the matter pending for the statutory period of six
months to be taken up for appropriate proceedings thereafter. With that being so the reference would
perhaps be bad, but for being covered under Sub-sec. (3) of Section 28 of HM Act which provides that
for the purpose of aiding the trial Court in bringing about reconciliation between divergent spouses it
may if it thinks proper adjourn the matter and refer it to any person to report to the Court as to whether
a reconciliation could be effected and then dispose it of in accordance the report, Independent of that
the reference of the matter which in essence was settlement of the dispute rather than the dispute itself
appears to be faulty. Taking the reference to be covered by aforesaid provision automatically regularizes
the reconciliation proceedings taken by Lok Adalat except of course the final decree of divorce that has
been awarded, in disregard of relevant provisions as aforesaid.

9. Accordingly for all that has been stated above, the petition is disposed of with a direction that the
divorce awarded by Lok Adalat shall stand overset. The reference made by trial Court to the Lok Adalat
would be deemed to have been one under sub-section (3) of Sec. 29 of HM Act and the proceedings of
Lok Adalat, a report in terms thereof that may be used by trial Court for pronouncement upon the
petition for divorce by mutual consent, which shall stand transmitted back to him along with
proceedings taken by Lok Adalat in the matter. During consideration of the matter he shall, however,
take all the factual pleas and counter pleas raised by parties into account including respondents claim of
having paid Rs. 4.00 lacs to petitioner and dispose of the matter in accordance with law, positively
within a period of two months from now. Parties are directed to appear before the trial Court on 6th
November, 2006.

Order accordingly.

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