Disposed

Babu v. Brinta

Kerala HC19 Jun 2012Mat.Appeal/910/2011

Case brief

AI extract

What is this about?

The High Court disposed of the appellant's appeal against a Family Court order directing settlement deed execution. The court directed parties to sign a joint application for divorce under Section 13B, execute a settlement deed strictly per compromise terms regarding property and custody, and linked the dismissal of related criminal proceedings upon completion of these formalities.

What did the court decide?

Directing parties to sign joint divorce application and execute settlement deed per compromise; dismissal of domestic violence petition upon presentation of Family Court order.

Babu Vs Brinta — Child Custody and Guardianship | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934

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Mat.Appeal.No. 910 of 2011 ( )

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-----------------------------OP.741/2008 of FAMILY COURT,THRISSUR

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APPELLANT(S):

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BABU, AGED 51 YEARS, S/O.VALTHATRA MAMAN, ERIYAD VILLAGE KODUNGALLUR TALUK, THRISSUR DISTRICT.

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BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)

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RESPONDENT(S):

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BRINTA, AGED 37 YEARS, D/O.TAHNIYATH ARAVINDKSHAN METHALA VILLAGE AND DESOM, KODUNGALLUR NEAR ATHANI HEALTH CENTRE, SOUTH SIDE THRISSUR DISTRICT.

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BY ADV. SRI.T.H.ABDUL AZEEZ BY ADV. SRI.P.M.ABDUL JALEEL (KODUNGALLUR)

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 19-062012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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Mat. Appeal No.910 of 2011 ----------------------------------------------Dated 19^th June, 2012.

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J U D G M E N T

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K.T.Sankaran, J.

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The petitioner is the husband of the respondent. They have two children in the wedlock. Disputes arose between the parties. The husband filed O.P.No.824/08 before the Family Court, Thrissur for divorce, under Section 13 of the Hindu Marriage Act, 1955. The wife filed O.P.No.741/2008 for injunction in respect of an item of immovable property. She also filed O.P.No.742/2008 for restitution of conjugal rights, O.P.No.1547/2008 for return of movables and G.O.P.No.845/08 for custody of the children. The husband filed O.S.No.303/209 for declaration of title in respect of an item of immovable property jointly owned by them. The wife also filed M.C.No.143/09 on the file of the Court of the Judicial Magistrate of the First Class, Kodungallur, against the husband under the Protection of Women from Domestic Violence, Act.

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The parties were referred for mediation at Thrissur Mediation Centre. They executed an agreement dated 8.3.2011. The gist of the terms of settlement is the following :

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Mat. Appeal No.910/2011

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(1) The parties have to file an application under Section 13B of the Hindu Marriage Act, before the Family Court, Thrissur.

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(2) The husband shall execute a settlement deed in respect of his one half share in the item of immovable property, in favour of his wife and children with a life estate to the wife in respect of the rights of the minors.

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(3) Permanent custody of the children shall be with the husband. The wife will have visitorial rights.

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(4) The cases referred to in the agreement shall be withdrawn by the respective parties.

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(5) If the wife fails to withdraw the cases or fails to file the joint petition under Section 13B of the Hindu Marriage Act, the husband would be entitled to cancel the settlement deed executed by him in favour of his wife and children.

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On 1.4.2011, the husband executed a settlement deed, allegedly in terms of the compromise. According to the wife, the said settlement deed is not in compliance with the terms of compromise. It is fairly clear from a reading of the settlement deed that the same was executed by the husband in

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Mat. Appeal No.910/2011

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favour of his children with only life estate to his wife. As per the compromise, the one half right of the husband has to be settled in favour of his wife and two children, with a life estate to the wife in respect of the fractional right of the minors. Admittedly, as per the settlement deed, no rights were given to the wife. Moreover, on 12.5.2011, the husband unilaterally cancelled the settlement deed dated 1.4.2011.

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In O.P.No.741/08 filed by the wife for injunction, the Family Court passed an order dated 10^th June, 2011, directing the husband to execute a settlement deed, settling his one half share in the petition schedule property, as per the terms of the compromise. The court also held that the wife would not be entitled to transfer the share of the minor children or to create any liability over their share in the property. The order dated 10^th June, 2011 in O.P.No.741/208 is challenged by the husband in this Mat.Appeal.

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Heard the learned counsel for the parties.

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It is admitted by both sides that the application

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under Section 13B of the Hindu Marriage Act was not signed

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Mat. Appeal No.910/2011

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and presented before the Family Court. Both sides have their own explanation for the same. It is not necessary to resolve that dispute in this Mat. Appeal. It is necessary that the joint application shall be filed before the Family Court, without delay. It is also necessary that both the parties should do all that is necessary to pass a decree for divorce under Section 13B, as provided in the terms of compromise. It is also necessary, as per the terms of the compromise, to execute a settlement deed in respect of the one half right of the husband in the item of immovable property in favour of his wife and two children with life estate to the wife in respect of the share of the children, as provided in the compromise. To protect the interests of both parties and to avoid any prejudice to any party consequent on the failure of the opposite party to comply with the terms of compromise, we are of the view that this Mat. Appeal can be disposed of in the following manner :

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(1) Both parties shall appear before the Family Court, Thrissur on 4.7.2012 and sign the joint application for divorce under Section 13B of the Hindu Marriage Act and present the same

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Mat. Appeal No.910/2011

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before the Family Court.

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(2) The Family Court shall post the case, in which the joint application is filed under Section 13B as well as O.P.No.741/08 to a date after six months.

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(3) On the day to which the cases are posted before the Family Court as mentioned above, if the parties agree for a divorce under Section 13B of the Hindu Marriage Act, the court shall record the same and direct the husband to execute and register the settlement deed in favour of his wife and children, strictly in terms of the compromise. The draft of the settlement deed shall be presented before the Family Court for its approval. On execution and registration of the settlement deed and on production of the document before court, the Family Court shall pass a decree for divorce on the application under Section 13B of the Hindu Marriage Act.

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(4) On passing the decree for divorce as aforesaid, M.C.No.143/09 filed by the wife before the Court of the Judicial Magistrate of the First Class, Kodungallur shall be dismissed as withdrawn, on production before the learned Magistrate, a copy

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Mat. Appeal No.910/2011

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of the order passed by the Family Court, Thrissur.

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(5) On completing the formalities as aforesaid, the original of the settlement deed shall be released by the court to the wife.

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(6) The Family Court shall pass all other appropriate orders to implement the terms of the compromise dated 8.3.211 arrived at between the parties.

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The Registry shall forward a copy of this judgment to the Family Court, Thrissur and also to the Court of the Judicial Magistrate of the First Class, Kodungallur.

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Sd/-

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K.T.SANKARAN, JUDGE.

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Sd/-

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M.L.JOSEPH FRANCIS, JUDGE.

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tgs

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(true copy)

Babu v. Brinta

Case brief

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What did the court decide?

Babu v. Brinta

Case brief

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What did the court decide?

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