Pinki Chhotaray vs Gangadhar Chhotaray
2023 Latest Caselaw 2040 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   RPFAM No. 110 OF 2012
                 Pinki Chhotaray                          ....       Petitioner
                                                     Mr. S. Sourav, Advocate
                                          -versus-
                 Gangadhar Chhotaray                    .... Opp. Party
                                            Mr. Jyotirmaya Sahoo, Advocate

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             10.03.2023
   18.      1.      This matter is taken up through hybrid mode.

2. Judgment dated 31st August, 2012 (Annexure-2) passed by learned Judge, Family Court, Khurda in Criminal Petition No.376 of 2011 is under challenge in this RPFAM, whereby refusing maintenance to the Petitioner, the Opposite Party has been directed to pay maintenance of Rs.1,000/- per month to his minor son (Petitioner No.2 therein) from the date of filing of the application.

3. Mr. Sourav, learned counsel for the Petitioner submits that marriage between the parties is not disputed and it is also not disputed that the minor son (Petitioner No.2 therein) was born out of the wedlock with Opposite Party. The Petitioner assails the impugned order under Annexure-2 on the ground that learned Judge, Family Court has erred in law in dismissing the application against the Petitioner relying upon her purported concession in a conciliation proceeding. Mr. Sourav, learned counsel for the Petitioner relied upon Sections 75 and 81 of the

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Arbitration and Conciliation Act, 1996 (for short 'the Act'), which are as follows:

"75. Confidentiality.--Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

81. Admissibility of evidence in other proceedings.-- The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,--

(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;

(b) admissions made by the other party in the course of the conciliation proceedings;

(c) proposals made by the conciliator;

(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator."

4. It is his submission that happenings before a Conciliator/Mediator cannot be utilized against the Petitioner in the judicial proceeding, i.e. in the proceeding under Section 125 Cr.P.C. He also relied upon the decision in the case of Govind Prasad Sharma and others -v- Doon Valley Officers Cooperative housing Society Ltd., reported in (2018) 11 SCC 501, in which it is held as under:

"5. xxx xxx xxx On a reading of Section 75, it is clear that the object of the Section is sub-Served by the expression "relating to" which is an expression of extremely wide import. (See Renusagar Power Company Limited v. General Electric Company, (1984) 4 SCC 679 at 704). It is clear, therefore, that both the conciliator and the

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parties must keep as confidential all matters relating to conciliation proceedings.

5. He, therefore, submits that happening, if any, before the Conciliator cannot be utilized against the Petitioner, more particularly when the conciliation has failed. Learned Judge, Family Court heavily relied upon the statement made before the Conciliator to the effect that both the parties are agreed before the Conciliator to stay together for some days in the house of father of the Petitioner before leaving for the house of Opposite Party and proceeded together from the Court. Subsequently, due to non-cooperation of the Petitioner and her father, the same could not be materialized. Such observation of learned Judge, Family Court clearly indicates that the conciliation had failed. Thus, learned Judge, Family Court could not have relied upon the statement, if any, made by the Petitioner before the Conciliator and decided the proceeding under Section 125 Cr.P.C. against her. He, therefore, prays for setting aside the impugned order under Annexure-2 and to remit the matter to learned Judge, Family Court, Khurda strictly to adjudicate the petition under Section 125 Cr.P.C. relying upon the materials available on record.

6. Mr. Sahoo, learned counsel for the Opposite Party by filing a memo submits that he has no instruction in the matter and thereafter he left the Court without waiting for a moment. The memo is taken on record.

7. Taking into consideration the submission made by Mr. Sourav, learned counsel for the Petitioner and on perusal of the

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materials on record, it appears that learned Judge, Family Court, Khurda solely relying upon the event that took place during the conciliation proceeding and alleged non-cooperation of Petitioner and her father, passed the impugned order under Annexure-2 purportedly in terms of Section 125(4) Cr.P.C. without delving into the merit of the case. In view of the case law in Govind Prasad Sharma and others (supra), it is crystal clear that the object of the provision under Section 75 is sub- served by the expression "relating to" which is an expression of wide import. Thus, the Hon'ble Supreme Court held that both the Conciliator and the parties must keep as confidential all materials relating to the conciliation proceeding. Sections 75 and 81 of the Act also make it abundantly clear that a happening or an expression before the Conciliator or materials relating to conciliation proceeding cannot be utilized against a party, as it is to be kept confidential save and except, when the same is necessary for its implementation and enforcement. In the instant case, the outcome of the conciliation proceeding appears to be in the negative as the Petitioner and her father allegedly did not cooperate and adhered to their willingness before the Conciliator.

8. In view of the above, learned Judge, Family Court could not have adjudicated the proceeding under Section 125 Cr.P.C. relying upon a happening before the Conciliator. As such, the impugned order under Annexure-2 is not sustainable and is accordingly set aside. The matter is remitted back to learned Judge, Family Court, Khurda for fresh adjudication strictly

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relying on the materials available on record. It is also open to the learned Judge, Family Court, Khurda to try for a conciliation/mediation before adjudicating the matter on merit.

9. With the aforesaid observation, the RPFAM is disposed of.

Urgent certified copy of this order be granted on proper application.

                                       (K.R. Mohapatra)
ms                                           Judge