Dismissed

Sandhya Rose v. Shan George

Kerala HC5 Sept 2018OP (FC)/445/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition invoking Article 227 jurisdiction against a Family Court order that recalled a compromise decree in a matrimonial dispute. The court held the decree legal despite claims it violated Section 10A of the Divorce Act due to a withdrawal from the mutual consent petition.

What did the court decide?

The writ petition filed under Article 227 of the Constitution of India was dismissed as the Family Court order was found to be legal and without error.

Sandhya Rose Vs Shan George — Matrimonial and Divorce | Kerala HC (2018)

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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 C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018/14TH BHADRA, 1940

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OP (FC).No. 445 of 2018

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(ARISING FROM OP 469/2012 of FAMILY COURT, IRINJALAKUDA)

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PETITIONER:

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SANDHYA ROSE

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AGED 35, D/O. V.P. JOSE, ROS GARDEN, VADASSERY HOUSE, KALADY DESOM, MELOOR VILLAGE, ERNAKULAM DISTRICT.

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BY ADV. SRI. G. SREEKUMAR (CHELUR)

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RESPONDENT:

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SHAN GEORGE AGED 40, S/O. GEORGE K. MATHAI, KOCHIKUNNEL HOUSE, ORUMA 64, KOCHIKUNNEL ROAD, VADUTHALA - 682016.

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BY ADV. SRI. ZAKEER HUSSAIN

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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AMG

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OP (FC) No.445/2018 -2-

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C.K. ABDUL REHIM, J. &

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R. NARAYANA PISHARADI, J.

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O.P. (FC) No. 445 OF 2018

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DATED THIS THE 5^th DAY OF SEPTEMBER, 2018

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J U D G M E N T

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Abdul Rehim, J:

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The petitioner is invoking the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India to set aside Ext.P14 order passed by the Family Court, Irinjalakkuda in I.A.No.1886/2016 in O.P.No.469/2012, dated 10.7.2018. Through the impugned order, an application filed by the petitioner seeking for recalling the decree passed by the Family Court in O.P.No.469/2012, was dismissed.

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Brief history of the case is that; there existed matrimonial disputes between the petitioner and the respondent. The petitioner filed O.P. No.469/2012 before the Family Court seeking for realisation of an amount of Rs.15,00,000/- along with interest from the respondent. She had also filed another case seeking for dissolution of the marriage, as O.P. No.1081/2012. There was yet another case instituted by the petitioner seeking for maintenance to the minor daughter, as M.C.No.149/2013.

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OP (FC) No.445/2018 -3-

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O.P.Nos.494/2016 and 680/2015 are cases filed by the

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respondent/husband, seeking for dissolution of the marriage and for permanent custody of the child. O.P. No.627/2015 is yet another case filed by the petitioner seeking for maintenance to the daughter.

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During pendency of the above said cases, the parties have arrived at a settlement in 3 cases, in O.P. Nos.469/2012 & 1081/2012 and M.C.No.149/2013. As per the terms of compromise, O.P.No.1081/2012 was dismissed as withdrawn. M.C.No.149/2013 was dismissed by recording the satisfaction, on the payment of Rs.5,00,000/towards maintenance. O.P.No.469/2012 was decreed based on a joint statement filed by both parties. The judgment passed by the Family Court in O.P.No.469/2012 was subjected to challenge before this court at the instance of the petitioner herein, in Mat. Appeal No.683/2015. But this court dismissed the appeal on finding that an appeal is not maintainable, because no appeal can be filed against a decree passed based on consent of the parties. While dismissing the said appeal through Ext.P2 judgment, this court made it clear that, the parties will be at liberty to approach the court which passed the decree in order to seek appropriate remedy, to the extent permissible under law.

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OP (FC) No.445/2018 -4-

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It is on the basis of the observations contained in Ext.P2

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judgment that the petitioner had filed I.A.No.1886/2016 before the Family Court. A copy of the said application is produced as Ext.P3. In the affidavit filed in support of the said application, the petitioner contended that, the compromise decree passed by the Family Court in O.P.No.469/2012 is not legally sustainable, because the terms of the compromise are illegal. It was contended that, the original petition was decreed for a sum of Rs.10,00,000/- only subject to passing of the decree in O.P. No.1093/2014. O.P.No.1093/2014 is a joint petition filed by the parties seeking for dissolution of the marriage based on mutual consent. According to the petitioner, in the application filed seeking for dissolution of the marriage based on mutual consent, the parties are entitled to withdraw from the contract at any time within the statutory waiting period of six months. Therefore it is contended that, the decree passed in the original petition for payment of Rs.10,00,000/- subject to passing of decree in O.P.No.1093/2014, is opposed to law and is contrary to the provisions contained in Section 10A of the Divorce Act. Hence the petitioner sought for recalling of the decree.

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The above said interim application (I.A.No.1886/2016) was resisted by the respondent herein by contending that, such an

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OP (FC) No.445/2018 -5-

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application is not maintainable either in law or on facts. It was contended that, the decree in question is one passed within the purview of Section 89 and Order XXIII Rule 3 of the Code of Civil Procedure, from which no appeal or review is maintainable. On the facts it was pointed out that, the petitioner had no grievance against the compromise upto 17.7.2015 and only when the respondent denied to satisfy the illegal claims for payment of some additional amounts, the present interim application was filed. It was pointed out that, the compromise is legally valid and the decree was passed in accordance with law. Therefore it is contended that the decree is enforcible. It was contended by the respondent before the Family Court that, there is no bona fides for the petitioner in filing the interim application and it is only a pressurising tactics to coerce the petitioner to meet her illegal demands.

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While considering the rival contentions, the court below had observed in the impugned order that the entire claim contained in O.P.No.469/2012 was settled between the parties for a sum of Rs.10,00,000/-. It was also agreed upon by the parties to file a joint petition under Section 10A of the Divorce Act. The court below found that, the terms and conditions of the settlement was reduced into writing in the form of a joint statement filed in O.P.

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No.469/2012, which was duly signed by their parties and counter signed by the respective counsel. It was by recording the terms contained in the joint statement that the decree was passed.

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Even though the respondent raised challenge regarding maintainability of the petition filed under Section 151 of the Code of Civil Procedure, for recalling of a decree, the court below found that, it remains settled that in the absence of any specific provision in the C.P.C for filing of an application for recalling a decree, the present interim application is maintainable. Reliance was placed in this regard on the decision of the Hon'ble Supreme Court in Jet Plywood (P) Ltd., V. Madhukar Nowlakha (2006 (2) KLT 624 SC). But referring to the provisions contained in Order XXIII Rule 3 of the Code of Civil Procedure and by relying on the dictum contained in the decision of this court in Sindhu V. Sunil Kumar (2015 (3) KLT 869) it was held that, the parties in the compromise have mutually agreed to settle the disputes and to pay a sum of Rs.10,00,000/- in full and final settlement of the claim raised by the petitioner. It was also agreed upon by the parties to dissolve the marriage through mutual consent, by filing a joint petition under Section 10A of the Divorce Act. From the said joint statement filed, it is clear that the dispute with respect to the plaint claim was settled between the parties and only the payment

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of the amount alone was deferred till the expiry of the mandatory period of six months in the joint petition, which was filed for dissolution of the marriage. The court below found that, both the parties are educated, they are professionals and well placed in occupation and that they were ably assisted by their in-laws who were representing them as Power of Attorney holders. Therefore the court below observed that, the issues were settled after due deliberations.

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Contention of the petitioner that the conditions stipulated in the compromise were violative of the provisions contained in the Indian Contract Act, was repelled through the finding that there occurred no infirmity on either side to enter into such an agreement and there was no coercion, undue influence, fraud or misrepresentation. Referring to another decision of this court in Haridas Chettiar and another V. Rajeswary (2014(1) KHC 822) , the court below found that, inclusion of any condition which stands beyond the scope of the suit in a decree of compromise, as a condition regulating the execution of the compromise, is legally valid. Based on such findings it was held that, the decree passed in O.P. No.469/2012 is perfectly legal and enforcible. Therefore the interim application seeking to recall the decree was dismissed.

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The petitioner is raising various contentions for assailing the order impugned herein. Adv. Sreekumar G. (Chelur) appearing for the petitioner contended that, the court below ought to have recalled the decree as it is not sustainable under law. It is pointed out that the original petition was decreed for an amount of Rs.10,00,000/-, subject to the passing of the order in OP No.1093/2014. OP No.1093/2014 is the joint petition filed under Section 10-A of the Divorce Act. Contention is that, the petitioner is entitled to withdraw from the joint petition for dissolution of the marriage, at any time within the statutory period of 6 months. Therefore, the right vested on the petiitoner cannot be curtailed or restrained in any manner by the operation of any agreement between the parties or through any judgment or decree of court of law. Hence the decree passed in OP No.469/2012 will amount to a decree which is contrary to the provisions of Section 10-A of the Divorce Act. Therefore it was argued that the decree is illegal and is liable to the recalled.

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While considering the above contention we may point out that, the judgment and decree in OP No.469/2012 was passed based on the joint statement filed by the parties. A copy of the said joint statment is made available for our perusal. The joint statement in question was filed as common in 3 cases, OP

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Nos.469/2012, 1081/2012 & MC No.149/2013. Terms of the compromise with respect to OP No.469/2012 is that, both the parties have agreed to decree the case for a sum of Rs.10,00,000/-. It was further agreed by the parties that the attachment on the immovable property which is existing in force in OP No.469/2012, can be lifted on the date on which evidence will be recorded in OP No.1093/2014. It was agreed by the respondent in the original petition to make payment of the decree amount of Rs.10,00,000/on that day. It is further mentioned in the joint petition that, both the parties have agreed to decree the original petition (O.P No.469/2012) for an amount of Rs.10,00,000/- and the respondent shall make payment of the amount of Rs.10,00,000/- on or before 01-07-2015, on obtaining receipt from the petitioner. No where in the terms of the compromise, which is evident from the joint statement, there was any stipulation that the decree in O.P No.469/2012 will be subject to passing of the decree in O.P No.1093/2014. Learned counsel for the petitioner had drawn our attention to Ext.P16 agreement executed between the parties by incorporating the terms of the compromise. He made an endeavour to give an interpretation to the recitals contained in the said agreement, which according to him, is in a manner indicating that the promise to make payment of a sum of Rs.10,00,000/- was made

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only subject to condition of giving evidence in OP No.1093/2014. But this court cannot countenance any such argument made based on the agreement, which is not part of the records in OP No.469/2012. It is explicit that the decree was passed only based on the joint statement. It is also explicit that in the joint statement the parties have agreed upon for decreeing the suit for a total sum of Rs.10,00,000/-; and only the payment was deferred to a particular date, i.e. to 01-07-2015, which probably is the date on which OP No.1093/2014 was posted for giving evidence, on completion of the statutory waiting period of 6 months. The petitioner had withdrawn from the terms of the joint petition filed for dissolution of the marriage. Question to be considered is whether the petitioner can be permitted to seek restoration of O.P No.469/2012 by recalling the decree, by allowing the application filed to that respect under Section 151 of the Code of Civil Procedure, by invoking the inherent power vested on the court below. As already observed, the condition stipulated in the decree that the decree will be “Subjected to the passing of decree to be obtained in OP No.1093/2014” is a contribution made by the Family Court, which in fact is not a term contained in the joint statement filed by the parties. As such, the contingency of passing of a decree in O.P No.1093/2014 was not a term of the

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compromise, upon which parties have settled their claims. However, such a clause incorporated in the decree will not in any manner vitiate the decree. In other words, by incorporation such a rider, the decree will not become illegal. Contention that the terms of the decree will go against the statutory provision under Section 10-A of the Divorce Act, cannot be accepted. It cannot be found in any manner that, by virtue of the decree, the right of the petitioner to withdraw from the joint petition for dissolution of marriage on mutual consent was taken away or curtailed. It is pertinent to note that the compromise of the decree in O.P No.469/2012 is only to the effect that “subjected to the passing of decree to be obtained in O.P No.1093/2014”. Eventhough technical, it can be contended that the dismissial of O.P No.1093/2014 can also be considered as a decree passed in that case. However, the petitioner cannot seek restoration of O.P No.469/2012 by recalling the decree on the basis that she had withdrawn from O.P No.1093/2014. Of course, whether the decree in O.P No.469/2012 need to be executed or not, is a matter left to discretion of the petitioner. We take note of the submissions made on behalf of the respondent that, the respondent had offered payment of the amount of Rs.10,00,000/- on 01-072015, when O.P No.1093/2014 was posted for evidence, through demand draft. But the petitioner had refused to accept the same

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and had voluntarily withdrawn from the joint petition. Therefore on the factual matrix of the case, we are convinced that the attempt of the petitioner is to get the decree in OP No.469/2012 recalled, so that she can pursue her claims in the original petition further, before the Family Court. We are of the consideration opinion that such an attempt cannot be permitted on principles governing the compromise of claims, envisaged under Section 89 and Order XXIII Rule 3 of Code of Civil Procedure.

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Result of the above discussion is that, there is no error of jurisdiction, illegality, impropriety or perversity in the order passed by the Family Court, Irinjalakuda in IA No.1886/2016 in O.P No.469/2012, warranting invocation of the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India, which is discretionary and visitorial in nature.

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Consequently the above original petition fails and the same is hereby dismissed.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/- R. NARAYANA PISHARADI JUDGE

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SS/AMG

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OP (FC) No.445/2018 -13-

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE O.P.NO.469 OF 2012 FILED ON 7.7.2012 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P2	A TRUE COPY OF THE JUDGMENT IN MAT APPEAL NO.683 OF 2015 DATED 21.1.2016 OF THIS HON'BLE COURT.
EXHIBIT P3	A TRUE COPY OF THE I.A.NO.1886 OF 2016 IN EXT.P1 DATED 28.3.2016.
EXHIBIT P4	A TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT IN EXT. P3 DATED 7.6.2016.
EXHIBIT P5	A TRUE COPY OF THE O.P.NO.627 OF 2015 DATED 30.7.2015 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P6	A TRUE COPY OF THE COUNTER FILED IN O.P.NO.627 OF 2015 DATED 6.2.2016 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P7	A TRUE COPY OF THE O.P.NO.494 OF 2016 DATED 18.9.2015 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P8	A TRUE COPY OF THE COUNTER FILED IN EXT.P7 DATED 28.2.2017 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P9	A TRUE COPY OF THE G O P NO.680 OF 2015 DATED 17.8.2015 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P10	A TRUE COPY OF THE COUNTER FILED IN EXT P9 DATED 28.12.2015 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P11	A TRUE COPY OF THE JUDGMENT IN O P F C NO.152 OF 2018 DATED 4.4.2018 ON THE FILE OF THIS HON'BLE COURT.
EXHIBIT P12	A TRUE COPY OF THE ORDER PASSED BY THE LEARNED FAMILY COURT JUDGE, IRINJALAKUDA DATED 28.4.2018 IN I.A.NO.1305 OF 2018 IN O.P.NO.494 OF 2016.
EXHIBIT P13	A TRUE COPY OF THE JUDGMENT IN OP FC NOS 131, 249 AND 267 OF 2018 DATED 22.5.2018 BY THIS HON'BLE COURT.

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OP (FC) No.445/2018 -14-

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EXHIBIT P14 A TRUE COPY OF THE ORDER PASSED IN I.A.NO.1886 OF 2016 IN O.P.NO.469 OF 2012 DATED 10.7.2018 ON THE FILE OF THE FAMILY COURT AT IRINAJAKUDA.

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EXHIBIT P15 A TRUE COPY OF THE ARGUMENT NOTES ON BEHALF OF THE RESPONDENT HEREIN DATED 21.12.2016. EXHIBIT P16 A TRUE COPY OF THE AGREEMENT DATED 7.11.14.

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RESPONDENT'S EXHIBITS

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NIL

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AMG

Sandhya Rose v. Shan George

Case brief

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Sandhya Rose v. Shan George

Case brief

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