Lata Bai Sahu vs Lalit Kumar Sahu

Heard.

This appeal is against the judgment and decree dated 09.02.2022 passed under Section 13 (B) of the Hindu Marriage Act by learned Family Court.

The appellant submits that the judgment and decree is outcome of fraud and decree of like nature cannot be passed. Placing his reliance upon the decision rendered by the Supreme Court in the case of Sanjeeta Das Vs. Tapan Kumar Mohanty reported in (2010) 10 SCC 222, he submits that the appellant/ wife was under impression that decree would be passed after 6 months of cooling off period and Rs. 5,00,000/- which was paid in cash was for maintenance towards child. He submits that the appellant/ wife cannot read but only can sign and this fact has been taken advantage of by the respondent/ husband. He further submits that review application was also filed and the same was dismissed by order dated 08.09.2022 after evidence, therefore, the decree passed under Section 13 (B) of the Hindu Marriage Act be annulled.

Learned counsel for the respondent opposes the argument and submits that the dispute inter se is between the appellant and the advocate who was representing her before the Court below and on part of the respondent he has paid the entire amount of Rs. 5,50,000/- and no compliance is required to be done. He further submits that consent having been given the decree of divorce was passed which do not require any interference and the subject matter is entirely separate.

We have heard learned counsel for the parties and perused the records.

Perusal of the records would show that the application was filed under Section 13 (B) of Hindu Marriage Act, wherein initially after notice on 04.02.2022, it appears that settlement was arrived at and Rs. 5,00,000/- in cash was endorsed to have been received by the appellant/ wife. The order sheet dated 04.02.2022 in the margin reflects the same and subsequently amount of Rs. 50,000/- was further paid and learned Family Court by waiving the cooling off period of 6 months under Section 13 (B) of the Hindu Marriage Act passed the decree of divorce in the background of the fact that the parties were living separately from year 2015.

Subsequent to such decree, an application was filed under Section 151 of CPC by the wife/ appellant to recall the order dated 09.02.2022. Perusal of such application would show that applicant/ wife pleaded that she agreed to receive Rs. 5,50,000/- and was under impression that subsequently after 6 months she would be paid further amount for maintenance. The applicant/ wife further states that she had not received the amount of Rs. 5,00,000/-and on behalf of the appellant/ wife advocate Laxmi Chandra Kaushik, who was representing her in the Family court had given a cheque of his own account on 11.02.2022 of Rs. 4,00,00/- which she had received the amount. She further states that out of Rs. 50,000/- which was subsequently paid Rs. 10,000/- was again deducted, therefore, fraud has been committed. Perusal of documents attached with the appeal shows that a copy of cheque of Rs. 4,00,000/- was issued by Laxmi Chandra Kaushik, who is said to be representing the appellant as an counsel.

It is contended by learned counsel for the appellant/ wife during submission that the amount of Rs. 4,00,000/- is kept in her account. Meaning thereby, the cheque was routed though for bank clearance for encashment. The order sheet of the learned Family Court shows that the amount of Rs. 5,00,000/- was received in cash, we are unable to understand as to how under what circumstances the counsel will pay his client such enormous amount of Rs. 4,00,000/- which leads to raise a suspicion that amount in cash might have been taken by the counsel and in lieu thereof cheque of Rs. 4,00,000/- was issued by the counsel to the appellant/ wife. Such act on the part of the counsel may or may not amount to professional misconduct, but the peculiar circumstances of the facts leads to draw inference against the conduct of the counsel namely Laxmi Chandra Kaushik subject to just exception.

The affidavit filed by the appellant/ wife before the learned family court bears her signature wherein she has written her full name in Devanagri alphabet. Therefore, we are unable to accept the submission of the appellant/ wife that she is not able to read but can only sign as done in the affidavit can not be accepted. She admits that amount of Rs. 5,00,000/- was paid on 28.01.2022, which is also corroborated by the endorsement in the order sheets. If during transaction the amount of cash was high jacked by the counsel, who was representing her and in lieu thereof if she was paid amount of Rs. 4,00,000/- by cheque, those issues operates on different filed other than that of application under Section 13 (B) of Hindu Marriage Act. In view of that the decree of divorce granted under Section 13 B of Hindu Marriage Act cannot be eclipsed on that solitary grounds. However, the appellant shall be at liberty to take appropriate action against her counsel namely Laxmi Chandra Kaushik as per her wisdom if so advised. Under these circumstances, we are unable to interfere with the decree of divorce passed by learned Family Court under Section 13 (B) of Hindu Marriage Act specially in the background of the fact when it is submitted by both the parties that they cannot live together. Further the appellant/ wife may approach the District Legal Aid Authority to get any legal assistance.

In view of this, the appeal sans merit is liable to be and is hereby dismissed.