V.D. Gyani, Actg. C.J.
1. This appeal u/s 19 of the Family Court Act, 1984 arises out of order dated 1.3.97 as passed by the Principal Judge, Family Court, Kamrup, Guwahati in F.C. (Civil) Case No. 128/95 thereby decreeing the suit as per terms of compromise petition 136 of 1997 dated 1.3.97 and making directions to the effect that the Respondent-husband shall pay maintenance allowance @ Rs. 400/- to the Petitioner and Rs. 400/- to the minor daughter till she is employed or married. A further direction was made that the Appellant mother shall hand over the daughter to the Respondent for 15 days twice in a year and the girl will be brought to the Court on conclusion of half-yearly and annual examinations so as to enable her father the Respondent, to take her from the Court. A National Savings Certificate bearing No. KV-04cc/762805 (amount not disclosed in the order) half of the amount was ordered to be paid to the Petitioner while the remaining half was ordered to be kept in fixed deposit for benefit of the minor daughter. Aggrieved by the same the wife has preferred this appeal alleging fraud being played on the Court by the Respondent-husband.
2. Few basic facts may now be seen. The Appellant and the Respondent were married according to Hindu-rites at Kamakhya temple at Guwahati on 27.11.84 in presence of their friends and relatives. They lived together for about two years, their married life was not so happy. It was in the year 1985, the Appellant first conceived, but on persuasion of Respondent-husband, she had to get herself aborted. A daughter was born to them in the year 1986, who is now about 12 years of age. Thereafter, the Appellant conceived four times and all the times she was prevailed upon by her husband to get aborted. The Appellant wife also alleged that she was ill treated, insulted and humiliated by the Respondent who was always after dowry and gift. Her father being a poor employee refused to oblige her. That was the reason that she was subjected to physical and mental torture. As if it was not enough, the Respondent husband devised yet another method by always depicting her as a mental patient to the neighbours and relatives and forced her to take some tranquillizer, as a result of which on two occasions she became unconscious. According to the Appellant, it was a calculated steps on the part of her husband who was keen to get rid of her by hook or by crook. She was forced to take shelter in the house of his uncle where she stayed for about six weeks. On her return, she was again subjected to mental and physical torture for about 5/6 days and driven out thereafter. She wrote to her uncle, who came to take her on 2.7.95, she came to Guwahati with her 10 years old daughter along with her uncle and aunty with whom she is residing in a rented house. There are allegations and counter-allegations, while the Respondent husband denounces the Appellant as a women of easy virtue, the Appellant-wife has alleged that her husband has close intimate relation with one lady of Lumding for last few years.
3. She had lodged an FIR at P.S. Jalukbari resulting in G.D. Entry No. 570 of 1995 dated 16.5.95. The Appellant also filed a case u/s 10, 24, 16 and 27 of the Hindu Marriage Act seeking judicial separation, "maintenance and custody of her daughter and her Streedhan which was registered as F.C. (Civil) 128 of 1995. It was fixed for evidence on 1.3.1997, her four witnesses from Lumding were present before the Court. But according to her, the Principal Judge instead of recording their evidence heard them verbally and thereafter, the impugned order was passed on 1.3.1997. She applied for certified copy on 3.3.97 which she received on 20.3.97, she was shocked to see the nature of the order of decree passed in terms of compromise petition No. 133 of 1997, she maintains that she never signed the compromise petition, the peon of the Court had obtained her signature on a petition after the order was passed. Her case is that the husband managed to get the above mentioned order on fraudulent manner. The Respondent-husband in his turn has filed his affidavit-in-opposition placing certain medical documents on record in order to show that the Appellant was schizophrenic. She was examined in the Institute of Neurological Science, Dispur, Guwahati on 1.6.96 and medical opinion was that she was suffering from paranoid features. Mr. Roy, learned Counsel appearing for the Respondent pointed out that since 1992 the Appellant is working as an Advocate Clerk. It is hard to believe that she would be duped by a peon of the Court in signing a compromise petition. It does not lie in her mouth of having withdrawn of Rs. 20,000/- as per terms of compromise. Mr. Das, learned senior Counsel appearing for the Appellant, referring to Section 13B and Section 10 relating to judicial separation of the Hindu Marriage Act, 1955 submitted that the decree based as it is on compromise petition is a nullity. It is this point as raised by the learned Counsel that we propose to deal with without going into the other allegations and counter-allegations made by the parties. Mr. Roy, appearing for the Respondents submitted that in view of the wide language of Sub-section (3) of Section 10 of the Family Courts Act, a decree passed on a compromise petition is permissible in law. Sub-section (3) of Section 10 reads as follows:
10. Procedure generally.
(1) ...
(2) ...
(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court for laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.
4. A mere reading of this Section, it would govern the procedure to be followed by the Family Court, Section 10 of the Hindu Marriage Act deals with Judicial separation, Sub-section (1) provides that either party to a marriage may present a petition for judicial separation on any of the grounds specified in Sub-section (1) of Section 13, and in case of a wife also on any of the grounds specified in Sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. Now adverting to Section 13B of the Hindu Marriage Act, it provides for a joint petition for dissolution of marriage by a decree of divorce and Sub-section (2) of Section 13B further lays down that on the motion made by both the parties not earlier than six months of the date of the presentation of the joint petition for divorce and not later than eighteen months after the said date (if the petition is not withdrawn in the meantime). The Court shall on being satisfied after hearing the parties and after making such inquiry as it things fit that a marriage has been solemnized and that the averments made in the petition are true, pass a decree of divorce declaring the marriage is dissolved on the date of the decree. Firstly, there was no such petition as contemplated by Sub-section (1) of Section 13B. Assuming the compromise petition and without going into the question of fraud as alleged by the wife, a mere glance at the impugned order dated 1.3.97 would go to show that there is not even a whisper about the satisfaction of Judge, all that it writes is perused the compromise petition... the case is decreed as per terms of compromise. Even in ordinary civil litigation whenever a compromise petition is passed, it is the bounden duty of the Court to satisfy itself about the justness of the terms of compromise, more so in matrimonial dispute. The approach of the learned Judge betrays the rudimentary knowledge of law.
5. Even if Section 13B for the sake of argument is held to be applicable to proceedings for judicial separation, although the language of the section does not permit in such interpretation, yet it was the duty of the Presiding Officer, the learned Judge to record his satisfaction after hearing the parties and making such enquiries as may be necessary. Read and re-read the whole order, there is not a slightest reference that the parties were heard except recording that both the parties are present. It is not reflected in the impugned order that the learned Judge has applied his mind to the basic requirements to be fulfilled before acceptance of a compromise petition. There is neither hearing nor the required satisfaction. To say the least the impugned order is perilously boardering on perversity and it is liable to be quashed on this short ground and it is accordingly quashed without going to other questions as raised by Mr. Das. Learned Counsel for the Appellant with a view to explaining and elaborating the legal meaning and connotation of the term fraud referred to us a judgment of the Supreme Court as reported in
6. The appeal is allowed with cost, Counsel fee Rs. 5,000/-.
