BANANI DEB Vs. DEBABRATA DEB

JUDGEMENT

(1.) This appeal under Section 19 of the Family Courts Act, 1984 arises out of order dated 1.3.1997 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 1.3.1997 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 27.11.1984 in presence of their friends and relatives. They lived together for about two years but 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 ot 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 tranquilizer, as a result of which on two occasions she became unconscious. According to the appellant, it was a calculated step 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 2.7.1995. 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 arc allegations and counter-allegations, while the respondent-husband denounces the appellant as a woman 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 16.5.1995. The appellant also filed a case under Sections 10,24, 16 and 27 of the Hindu Marriage Act. seeking judicial separate, maintenance and custody of her daughter and her streedhan which was registered as FC (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 Principle Judge instead of recordnig their evidence heard them verbally and thereafter the impugned order was passed on 1.3.1997. She applied for certified copy on 3.3.1997, which she received on 20.3.1997, 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 in 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 1.6.1996 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 Sections 13-B and 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 deaf with without going into the other allegations and counter-allegations made by the parties. Mr. Roy, appearing for the respondent 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. Subsection (3) of Section 10, reads as follows :