In this case there is nothing on record to establish that how the Ld. Court below could act as a mediator, how the Ld. Court below is a qualified mediator as per the rules of the High Court as detailed above, when the parties to the case appointed the Ld. Court below to act as a mediator, what prevented the Ld. Court below from adhering to S-14 of the Act. The joint compromise petition does not have sanction of law and is against public policy. As the said agreement forms part of the assailed order, and the said agreement not being in consonance with the established principles of law and also being against public policy, the assailed order merits no consideration and deserves to be set aside on account of the aforementioned reasons under facts and circumstances of the case to meet the best interest of justice.Smt.Tanusree Mandal(Hembrom) vs Sree Sujay Hembrom, and ors
In the court of the Additional Sessions Judge, 4th Court, Howrah District Howrah.
Present: Shri D.V. Srinivas. ADJ 4th Court, Howrah
Criminal Appeal No.10/2021
1. Smt.Tanusree Mandal(Hembrom)
W/O.Sree Sujay Hembrom,
of 26/4/2 PK Roy Choudhury Lane,
PS:AJC Bose, District:Howrah,
– – – Appellant /Complainant,
1.Sree Sujay Hembrom,
of Baichi Gram Ranga Dighir Par,
At/PO:Baichi Gram, PS:Pandua, District: Hooghly,
2.The State of West Bengal
– – – Respondents
Advocate for the Appellant: Shri. Tanmoy Bhattacharya,
Advocate for the Respondent No.1: Smt.Swapna Mukherjee & others.
Advocate for the Respondent No.2: Shri.Sanjoy Kumar Pandey.
Appeal U/S.29 of the PWDV Act 2005
Judgement delivered on 02-04-2022
1. This appeal is against the order dated 18-02-2021 of the Ld. JM First Court at Howrah, District: Howrah, in Misc. Case No.203/2019 filed by the appellant-aggrieved person against the respondent-OP U/S.12 of the Protection of Women From Domestic Violence Act 2005 hereinafter called the Act for the sake of brevity, wherein the Ld. Court below has disposed the said case on the basis of a compromise between the parties in terms of a compromise petition dated 04-03-2020 which also is a part of the said order. In the memorandum of appeal, the appellant-aggrieved person has inter alia stated that the Ld. Court below has violated Section- 14 of the Act, mediated the case himself, directed the parties to enter into a sham coercive agreement, compelled the appellant-aggrieved person to sign in the same, failed to inquire the facts and circumstances of the facts along with matrimonial violence through proper judicial verification & inquiry, and other grounds which are more detailed in the memorandum of appeal.
2. For the sake of convenience the parties are addressed as they were addressed before the Ld. Court below.
3. The case of the petitioner–aggrieved person in brief is that she had love affairs with Sri Sujay Hembram who is the OP No.1 before the Ld. Court below hereinafter called the OP for the sake of convenience. The said love affairs culminated to marriage which was performed between them on 20-09-2007 as per Hindu rites & customs at Puri. After marriage the aggrieved person started leading her marital life at a rented house at Baichigram, PS:Pandua, District: Hooghly. From the very inception the aggrieved person was subjected to physical torture by her parents-in-law who were dissatisfied with the love marriage which did not fetch their desired dowry. The said parents-in-law demanded ₹50,000/- from the aggrieved person. The OP subsequently shifted the aggrieved person to different places at Shibpur as detailed in her original application in order to facilitate his studies at BE College, B.Garden. In course of time the OP got service at Kolkata Municipal Corporation as Assistant Engineer. While the matter stood thus the OP developed illicit affairs with another lady namely Kanchan Mala Hasda in the middle of the year 2013 and when the aggrieved person protested, she was subjected to physical & mental torture by the OP. On being asked by the OP over telephone, when on 09-02-2019 the aggrieved person went to the relatives house of the OP at Baichi, Hooghly to settle her dispute with the OP, all the respondents of court below assaulted the aggrieved person with broom, bamboo stick etc and tore her wearing apparels. When the aggrieved person raised a hue and cry the people of the neighborhood took her to Baichi gram hospital for immediate treatment. On the following day the aggrieved person lodged a FIR against the said respondents and on the basis of the said complaint Pandua PS Case No. 35/90 dated 10-02-2019 was initiated against the said respondents U/S.498A/494/ 325/354A of the IPC. As the OP not only failed to contact the aggrieved person but also did not give the house rent or any amount towards maintenance, the aggrieved person filed this case U/S.12 of the Act with a prayer for protection order U/S.18 of the Act, monetary relief U/S.20 of the Act, and other incidental reliefs.
4. The OP contested the case and filed written objections on 09-01-2020. In the said written objection the OP denied all the averments of the aggrieved person including marriage. He stated that he had cordial relations with the aggrieved person who only proposed for a marriage with the OP who refused the same as he belongs to tribal religion and ultimately OP married the said Kanchan Mala Hansda. The aggrieved person kidnapped the OP and forcibly created some documents against his will and to this effect the OP has lodged a complaint before PS: Shibpur on 04-07-2013 & 06-07-2013. According to the OP the said petition of the aggrieved person U/S.12 of the Act being misconceived is liable to be dismissed.
5. The Ld. Court below on 18-02-2021 has disposed the case on compromise between the parties in terms of the compromise petition dated 04-03-2020 which is treated as part of the order.
Point for determination:
I. Whether there is any illegality, irregularity or error in the said assailed order of the Ld. Lower Court to interfere with ?
Decision with reasons:
6. Ld. Advocate on behalf of the aggrieved person has submitted the Ld. Court below has erred by acting as a self styled mediator and compelled the appellant to put her signature on the joint compromise petition. He submitted that Ld. Court has not applied judicial mind to dispose the application filed by the aggrieved person. The Ld. Court below has manufactured the story of divorce and has himself stated that the parties got divorced before Tribal Majhi on 28-12-2011. He finally submitted that the assailed order should be set aside and the case should be adjudicated as per the provisions of law.
7. Ld. Advocate on behalf of the OP has vehemently opposed the same and stated that as already aggrieved person has received ₹1,00,000/- which is part of the total agreed consideration of ₹12,00,000/- there is no reason as to why the agreement is not binding upon her. She also stated that the court below has not forced either party to put their respective signatures in the joint compromise petition as well as in their respective affidavits. She also stated that OP is willing to perform his part of contract if the aggrieved person fulfills her part of contract. She submitted that as there is nothing illegal in the said agreement which was voluntarily signed by both parties after understanding all the contents therein the appeal filed by the appellant is liable to be dismissed.
8. Ld. PP -in- charge has concurred with the said submission of Ld. Advocate on behalf of the respondent No.1.
9. Hd. Ld. Advocate on behalf of both parties, Ld. PP-in-charge, perused the assailed order, the LCR and other materials on record.
10. On perusal of the order dated 18-02-2021 it appears that in the compromise petition dated 04-03-2020 suggests that upon request of both parties the Ld. Court below had conciliated and mediated on previous date, and after such mediation and conciliation both the parties have voluntarily resolved their dispute in issue. On perusal of the LCR it appears that the date previous to 18-02-2021 was 17-07-2020 and on that day due to lockdown the case was adjourned to 18-02-2021. So from the perusal of the LCR either on the earlier date i.e. 17-07-2020 or any previous dates there is nothing on record to show that the Ld. Court below has been appointed as a mediator to resolve the issues in dispute by the parties to the dispute.
11. As far as mediation is concerned it is to be stated that the use of mediation is promulgated under the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908 (CPC). Section 30 of the Arbitration and Conciliation Act states that an “Arbitral Tribunal may use mediation to encourage settlement of disputes”. Section 89 CPC states that “courts may refer the parties for mediation if it appears that there exists an element of settlement”. As it can be inferred from the title, this Code only deals with “civil” matters.
12. It is also to be pointed out that the Hon’ble High Court of Calcutta, Appellate Side vide notification No.3116-G dated 08-09-2017 had made Civil Procedure Mediation Rules-2006 promulgated under Court’s Notification No.4679-G dated 06-12-2006. In the said rules it is clearly mentioned who are trained mediators. There is nothing on record to suggest that the Ld. Court below is a trained mediator confirming to the said rules of mediation.
13. The Ld. Court below in the assailed order inter alia observed that the terms of the compromise are neither illegal nor opposed to morality. It is pertinent to point out that in para-1 & 2 of the compromise petition dated 04-03-2020 it has been agreed upon that maintaining all tribal customs on 28-12-2011 the marriage between the aggrieved person and the OP has come to an end. Be it be mentioned that in para-2 of the original application filed by the aggrieved person before the court below it has been stated that marriage between the parties to the proceeding were solemnized according to Hindu rites & customs at Puri on 20-09-2007. This apart it appears from a xerox copy of the order in Mat Suit 26/2020 on record that marriage between the respondent & Kanchanmala Hansda (Hembram) has been dissolved according to Hindu rites & customs by the Ld. District Judge, Hooghly. This goes to show that parties are observing Hindu customs. If marriage is performed according to Hindu rites as alleged by the appellant-aggrieved person then it is difficult to conclude that the Ld. Court below can mediate and dissolve the marriage observing tribal customs. In this context it is pertinent to point out that the High Court of Delhi relying on the observations of the Apex Court in para-47 & 48 has been pleased to inter alia observe:
2021 SCC OnLine Del 3645 : (2021) 282 DLT 23 : (2021) 3 RCR (Cri) 809 : (2021) 3 DMC 217
“47. The word ‘Hindu’ is not defined in any of the statutes. It is in view of the fact that there is no definition of Hindu, that the Supreme Court has held in Labishwar Manjhi (supra) that if members of Tribes are Hinduised, the provisions of the HMA, 1955 would be applicable. The manner in which the marriage has been conducted in the present case and the customs being followed by the parties show that as in the case of Hindus, the marriage is conducted in front of the fire. The Hindu customary marriage involves the ceremony of Saptapadi which has also been performed in the present case. The various other ceremonies, as is clear from the marriage invitation are also as per Hindu customs. If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the HMA, 1955. Codified statutes and laws provide for various protections to parties against any unregulated practices from being adopted. In this day and age, relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the HMA, 1955. The provisions of exclusion for example under Section 2(2) are meant to protect customary practices of recognised Tribes. However, if parties follow Hindu customs and rites, for the purpose of marriage, this Court is inclined to follow the judgment of the Supreme Court in Labishwar Manjhi (supra) to hold that the parties are Hinduised and hence the HMA, 1955 would be applicable. Moreover, nothing has been placed before the Court to show that the Meena community Tribe has a specialised Court with proper procedures to deal with these issues. In these facts, if the Court has to choose between relegating parties to customary Courts which may or may not provide for proper procedures and safeguards as against codified statutes envisioning adequate safeguards and procedures, this Court is inclined to lean in favour of an interpretation in favour of the latter, especially in view of the binding precedent of the Supreme Court in Labishwar Manjhi (supra) which considered an identical exclusion under the HSA, 1956.
48. In so far as the judgment of in Dr. Surajmani Stella Kujur (supra) is concerned, the said decision dealt with an offence of bigamy which was pleaded to be contrary to the customs in the Santhal Tribe. The said custom had not been established on record and hence the Court held that since the custom was not established by the parties, an offence could not be created by a mere pleading of a custom. Moreover, even in Dr. Surajmani Stella Kujur (supra), the Supreme Court clearly holds that for determination of civil rights, customs may be proved and can form the basis. Thus, insofar as divorce proceedings are concerned, if proper tribal customs are not established or the following of Hindu customs or rites is admitted by the parties, there is no reason to hold that the provisions of the HMA, 1955 would not apply.”
From the said observation of the Delhi HC and the Apex Court it is clear that once members of Tribes are Hinduised, the provisions of the HMA, 1955 would be applicable. In view of the said findings, it is difficult to conclude that the clause, that the marriage between parties stood dissolved according to tribal customs is legal at a time when there are no documents to substantiate that adhering to the tribal norms the said marriage stood dissolved save recitals of the parties. It is needless to mention that the whole of the said agreement hinges upon the said dissolution of marriage and if the same does not stand scrutiny of law as pointed out above, it is difficult to come to conclusion that the whole of the agreement has sanction of law.
14. It is also to be stated that S-14 of the Act provides for counselling at any stage and the Ld. Court below can direct any of the parties either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed. There is nothing on record that the Ld. Court below has taken any steps adhering to the said section of the Act when the parties filed a joint compromise petition.
15. It is also to be stated that it is not that the courts are averse to any compromise between the parties to the case. Any such compromise even if agreed upon by the parties to the case should not be illegal and against public policy. It should be between the four corners of the original application of the applicant and not any thing and everything under the earth and the same should have sanction of law. The Ld. Court below should not only take cognizance of its brief, but also see that it does not exceed its brief. It ought not to impede compromise if the same is based on sound principles & procedure established by law, and within the scope of the original application.
16. In this case there is nothing on record to establish that how the Ld. Court below could act as a mediator, how the Ld. Court below is a qualified mediator as per the rules of the High Court as detailed above, when the parties to the case appointed the Ld. Court below to act as a mediator, what prevented the Ld. Court below from adhering to S-14 of the Act. The joint compromise petition does not have sanction of law and is against public policy. As the said agreement forms part of the assailed order, and the said agreement not being in consonance with the established principles of law and also being against public policy, the assailed order merits no consideration and deserves to be set aside on account of the aforementioned reasons under facts and circumstances of the case to meet the best interest of justice.
17. Accordingly the said point No.I, is answered in favor of the appellant.
The appeal is allowed on contest against the respondents. The impugned order dated 18-02-2021 of the Ld. JM First Court at Howrah, District: Howrah, in Misc. Case No.203/2019 is set aside.
The Ld. Court below is directed to dispose the original application of the appellant-aggrieved person U/S.12 of the Act and other related applications according to law considering all the materials which are likely to be placed by both parties during the course of adjudication, without being influenced in any manner by the findings of this court.
Let a copy of this judgment along with LCR be sent to the Court of Ld. Judicial Magistrate, First Court at Howrah, District: Howrah, for information and necessary action.
It has been contended by the respondent No.1-OP, that the appellant- aggrieved person has received ₹1,00,000/-which is part of the total agreed consideration of ₹12,00,000/- as per the terms of the agreement. The same has been admitted by the appellant in para-4 of his memorandum of appeal.
After final adjudication of the case if the Ld. Court below finds merits with regard to monetary prayer of the aggrieved person in the application filed U/S.12 of the Act, the said received amount of ₹1,00,000/- by the aggrieved person will act as a offset against such award and if the Ld. Court below on adjudication finds that the aggrieved person is not entitled to any monetary award the appellant is bound to return the whole of said amount of ₹1,00,000/- or the balance remaining if any after such offset, to the OP within one month from the date of such final adjudication by the Ld. Court below, failing which the OP has action to recover the money as per the provisions of quasi contract i.e. it may be an action for money had and received.
(Duri Venkat Srinivas.)
Additional Sessions Judge, 4th Court
(J.O. Code: WB00774)