Cont.Case (C) No.1931 of 2023 (Ajayaghosh v. Beena & Akshay Ghosh)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 18 [ TH ] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 CON.CASE(C) NO.1931 OF 2023 ``` ``` (OP No.465/2015 OF FAMILY COURT, IRINJALAKUDA) ``` ``` PETITIONER/PETITIONER IN OP No.465/2015 & RESPONDENT IN OP No.535/2015: ``` ``` AJAYAGHOSH AGED 61 YEARS S/O. LATE CHENNATTU KUNJAYYAPPAN, CHENNATTU HOUSE, EDATHIRUTHY P.0, KODUNGALLUR THALUK, THRISSUR DISTRICT, PIN - 680703 ``` ``` BY ADV P.R.SHAJI ``` ``` RESPONDENT/RESPONDENT IN OP No.465/2015 & PETITIONER IN OP No.535/2015: ``` ``` 1 BEENA AGED 57 YEARS D/0. KATTUPARAMBIL SANKURU W/O CHENNATTU AJAYAGHOSH CHENNATTU HOUSE, EDATHIRUTHY.P.0, KODUNGALLUR THALUK, THRISSUR DISTRICT, PIN - 680703 ``` ``` 2 AKSHAY GHOSH AGED 30 YEARS S/O CHENNATTU AJAYAGHOSH, CHENNATTU HOUSE, EDATHIRUTHY P.O., KODUNGALLUR THALUK, THRISSUR DISTRICT, PIN - 680703 BY ADV RAJESH CHAKYAT C ``` ``` THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 09.10.2023, THE COURT ON 18.10.2023 DELIVERED THE FOLLOWING: ``` Cont.Case (C) No.1931 of 2023 2 ## **JUDGMENT** ## **Sophy Thomas, J** . This contempt case is at the instance of the petitioner in OP No.465 of 2015 on the file of Family Court, Irinjalakuda. The respondents are his wife and son. 2. The petitioner/husband filed OP No.465 of 2015 for a decree of divorce, and his wife filed OP No.535 of 2015 for maintenance and alimony under the Hindu Adoption & Maintenance Act. While those OPs were pending before the Family Court, the parties were referred for a mediation, and they resolved their disputes in the mediation, and a settlement agreement was entered into between them. The Family Court, Irinjalakuda accepted the settlement agreement and disposed both the OPs in terms of the mediation agreement. Now the allegation of the petitioner is that, the respondents violated the terms of the settlement agreement and so, they have to be proceeded for contempt of court. 3. On 25.08.2023, when this contempt case came up for consideration, we ordered notice to the respondents by speed post, and they entered appearance through counsel, and denied the allegations levelled against them. Cont.Case (C) No.1931 of 2023 3 4. Heard learned counsel for the petitioner and learned counsel for the respondents/contemnors. 5. Before we proceed further, let us have a look at the Mediation Settlement in OP No.465 of 2015, which reads thus: “ഹർജി�ാരനും എതൃക�ിയും ത�ിലു� വിവാഹബ�ം േവർെപടു�ി കി�ു�തിനായാണ് േമൽ ന�ർ ഹർജി േബാധി�ി�ി�ു�ത്. ഹർജി - ഏത�ക�ികൾ ത�ിലു� തർ��ൾ ഇരി�ാല�ുട മീഡിേയഷൻ സ�് െസ�റിൽ മീഡിേയ�റുെട സാ�ി���ിൽ സംസാരി�് താെഴ പറയു� വ�വ�കൾ �പകാരം രാജിയായി�ു�താകു�ു. **==> picture [81 x 16] intentionally omitted <==** 1. ഹർജി�ാരൻ ഹർജിയിൽ എത�ക�ിെ�തിെര ഉ�യി� ആേരാപണ�ൾ െത�ി�ാരണയുെട അടി�ാന�ിൽ �പ��ാവി�ാൻ ഇടവ�ി�ു�തും, ആയത് അടി�ാനരഹിതമാെണ�് ഹർജി�ാരന് േബാധ�ം വ�തിനാൽ ടി ആേരാപണ�ൾ ഹർജി�ാരൻ നിരുപാധികം പിൻവലി�ി�ു�തും എത�ക�ി േബാധി�ി� ആേ�പ�ിെല ഹർജി�ാരന് എതിരായു� ആേരാപണ�ൾ എത�ക�ി നിരൂപാധികം പിൻവലി�ി�ു�താകു�ു. ഹർജി�ാരനും എതൃക�ിയും ഒരുമി�് ഹർജി�ാരെ� േപരിലു� എട�ിരു�ി വിേ�ജ് സർ� 192/5 ൽ െപ� 31 െസൻറ് വഹകളിലു� എട�ിരു�ി �ഗാമപ�ായ�് 16/27 എ�് ന��ി� വീ�ിൽ താമസി�് വരു�തും, ഹർജി�ാരനും എത�ക�ിയും ത�ിലു� തർ��ൾ പര��രം സംസാരി�് ഒ�് തീർ�തിെ� അടി�ാന�ിൽ ഭാര� - ഭർ�ാ��ാരായി ഒ�ി�് ടി വീ�ിൽ കഴിയു�തിന് ഇരുകൂ�രും പര��രം സ�തി�ി�ു�താകു�ു. ഹർജി�ാരെ� ഭാഗ�് നി�ും എതൃക�ിെയ മാനസികമാേയാ, ശാരീരികമാേയാ േവദനി�ി�ു� വിധ�ിേലാ, സുഗമമായ ജീവിത�ിന് തട�ം വരു�ു� വിധ�ിലു�േതാ ആയ യാെതാരു Cont.Case (C) No.1931 of 2023 4 െപരുമാ�വും ഉ�ാകിെ��് ഹർജി�ാരൻ ഇതിനാൽ സ�തി�ി�ു�തും ആയതുേപാെല തെ� ഹൃദയസംബ�മായ േരാഗിയായ ഹർജി�ാരെന മാനസികമാേയാ, ശാരീരികമാേയാ േവദനി�ി�ു� വിധ�ിൽ യാെതാരു �പവർ�ികളും െച�ുകയിെ��ും, ഹർജി�ാരെ� സുഖമമായ ജീവിത�ിന് ഭംഗം വരു�ു� രീതിയിൽ െപരുമാറിെ��ും എത�ക�ി ഇതിനാൽ സ�തി�ി�ു�താകു�ു. 2. േമൽ പറ� വഹകളിൽ എത�ക�ി�് ഹർജി�ാരെ� ഭാര� എ� നിലയിൽ പൂർണ സ�ാത���േ�ാടുകൂടി താമസി�ു�തിന് പൂർ� അവകാശമു�താെണ�് ഹർജി�ാരൻ ഇതിനാൽ സ�തി�ി�ു�താകു�ു. എതൃക�ിയുെട ജീവിത കാല�് എതൃക�ിെയ ഹർജി�ാരൻ ടി വീ�ിൽ നി�ും പുറ�ാ�ുകേയാ, ഒഴിവാ�ുകേയാ െച�ു�തെ��ും ഹർജി�ാരൻ ഇതിനാൽ സ�തി�ി�ു�താകു�ു. 3. ഹർജി�ാരെ� നിത� നിദാന ജീവിത ചിലവിനും, ചികി�ാ സംബ�മായ ചിലവിനും ആവശ�മായ പണം എതൃക�ി ചിലവഴി�് െകാ�ാെമ�് സ�തി�ിരി�യാൽ ഹർജി�ാരെ� വഹകൾ എത�ക�ിയുെട അറിേവാ, സ�തേമാ ഇ�ാെത അന�ൈകവശം നൽകുകേയാ, അന�ാധീനെ�ടു�ുകേയാ, തീറ് വിൽ�ുകേയാ െച�ു�തെ��് ഹർജി�ാരൻ ഇതിനാൽ സ�തി�ി�ു�താകു�ു. ഹർജി�ാരന് ആവശ�മായ ചിലവുകൾ എത�ക�ി നിർ�ഹി�ാെത വരു�പ�ം വഹകൾ പണയെ�ടു�ി പണം കടം വാ�ു�തിന് ഹർജി�ാരന് അവകാശമു�ായിരി�ു�താെണ�് ഇതിനാൽ സ�തി�ി�ു�താകു�ു. 4. ഹർജി�ാരൻ, ഹർജി�ാരെ�യും എതൃക�ിയുേടയും മകനായ അ�യ്േഘാഷ് എ�വർെ�തിെര ബഹുമാനെ�� േകാടതി മു�ാെക േബാധി�ി� എം. സി. 251/2017 ന�ർ േകസ് നിരൂപാധികം പിൻവലി�ു�താെണ�് ഇതിനാൽ സ�തി�ി�ു�താകു�ു. ആയത് കൂടാെത ഹർജി�ാരൻ മകനായ അ�യ്േഘാഷ് എ�വർെ�തിെര മതിലകം േപാലീസ് േ�ഷനിൽ പരാതി നൽകിയതിൽ ൈ�കം Cont.Case (C) No.1931 of 2023 5 1474/2018 ന(�ായി രജിസ്�ടാ�ിയ േകസിൽ കു�പ�തം സമർ�ി� �പകാരം െകാടു��ൂർ െജ.എഫ്.സി.എം. േകാടതി മു�ാെക നിലവിലു�തായ ST 227/2018 ന�ർ േകസ് ഹർജി�ാരൻ പിൻവലി�ി�ു�താകു�ു. 5. േമൽ �പകാരം ഹർജി�ാരനും എത�ക�ിയും ത�ിലു� തർ��ൾ രമ�മായി പരിഹരി� സാഹചര��ിൽ ടിയാർ ഒ�ി�് താമസി�് വരു�തിനാൽ േമൽ ന�ർ ഹർജി ത�ി ഉ�രവാേക�താെണ�് ഹർജി-എത�ക�ികൾ ഇതിനാൽ സ�തി�ി�ു�താകു�ു. 6. േമൽ �പകാരമുളള വ�വ�കൾ�് വിരു�മായി ഹർജിഎത�ക�ികൾ യാെതാരു അവകാശവാദേമാ, തർ��േളാ പര��രം ഉ�യി�ു�തെ��ും േമൽ വ�വ�കൾ റി�ാർഡാ�ി േമൽ ന�ർ േകസ് ത�ി ഉ�രവാകു�തിന് ഹർജി-എത�ക�ികൾ ഇതിനാൽ സ�തി�ി�ു�താകു�ു”. 6. Accepting the above settlement, the Family Court, Irinjalakuda decreed both the OPs on 12.06.2019, in terms of the mediation agreement. Going by the mediation settlement, we could see that, both parties withdrew the unnecessary and baseless allegations leveled against each other, and they decided to live together peacefully in house No.16/27 in Edathiruthi Grama Panchayath, owned by the petitioner/husband. Both parties agreed that, they will not cause any mental or physical harassment against each other. The respondent/wife was given right of residence in that house, till her death, and the petitioner had agreed that he would not evict her from that house. The Cont.Case (C) No.1931 of 2023 6 respondent had agreed to meet the treatment expenses of the petitioner, and the petitioner had agreed that, he would not transfer or alienate the residential house and property, without the knowledge and consent of the respondent/wife. It was further agreed that, if the respondent failed to meet the treatment expenses of the petitioner, he could mortgage that property for availing loan. 7. Now the grievance of the petitioner is that, the respondents, who are his wife and son, are not complying with the terms of the mediation settlement, and hence they are guilty of contempt of court. He would say that, willful breach of an undertaking given to the court amounts to contempt of court under Section 2(b) of the Contempt of Courts Act. A compromise decree is as much a decree, as a decree passed on adjudication. It is not merely an agreement between the parties. In passing the decree by consent, the court adds its mandate to the consent. He further contended that, the fact that a decree is executable does not take away the court’s jurisdiction in contempt, as the matter is one of court’s discretion having regard to the facts of the case. 8. In order to substantiate that contention, he is relying on the decision of the Apex Court in **Rama Narang v. Ramesh** Cont.Case (C) No.1931 of 2023 7 ## **Narang and another [(2006) 11 SCC 114],** in which it was held ## that: “A consent decree is composed of both a command and a contract. A consent decree is a contract with the imprimatur of the court. “Imprimatur” means “authorised” or “approved”. In other words by passing a decree in terms of a consent order, the court authorises and approves the course of action consented to. Moreover, the provisions of Order 23 Rule 3 CPC require the court to pass a decree in accordance with the consent terms only when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement. ” 9. Following the decision of the Apex Court cited supra, this Court in **Kakkoor Service Co-operative Bank Ltd. v. Jinu Augustine and others [2021 SCC Online Ker 1345]** , held that, when parties arrive at a settlement, and when it is adopted by the court, it is a consent given to the court and when the seal of the court is affixed on it, it is an undertaking given not to the party, but to the court. If that is violated, it may amount to contempt of court and appropriate proceedings can be initiated. It was further observed that, court has a duty to ensure that no party to the proceedings, violate the terms of settlement to the prejudice of other or to take advantage of the situation to the prejudice of other party. The court which recorded the settlement is also competent even to revoke the settlement in exercise of its inherent Cont.Case (C) No.1931 of 2023 8 jurisdiction in appropriate cases and put back the parties to the original position where they stood prior to the settlement, to meet the ends of justice. 10. Let us see, if at all there was an undertaking in the Mediation Settlement, whether the respondents violated the same and if so in what manner, and is it sufficient to invite an action under the Contempt of Courts Act. 11. Admittedly, the dispute between the petitioner and the 1[ st ] respondent was based on their marital issues and the petitioner filed OP for divorce and the wife filed OP for maintenance and alimony. Both parties amicably settled their disputes in mediation, and they decided to continue their marital life peacefully, assuring each other that, they will not cause any physical or mental harassment against each other. The 1[ st ] respondent-wife had agreed to meet the treatment expenses of the petitioner and in default, he was given liberty to mortgage his property and to avail loan. On going through that settlement, except mutual understanding to live peacefully as husband and wife, there was no positive act to be performed from either side, except the undertaking by the 1[ st ] respondent-wife to meet the treatment expenses of the petitioner, and for that too, a default clause was incorporated that, Cont.Case (C) No.1931 of 2023 9 he can mortgage his property for availing loan. So, nothing remains to be executed as per the mediation settlement. When a re-union occurred on settling a divorce case and the husband and wife decided to live peacefully without causing inconvenience to each other, but at a later point of time there occurred differences of opinion among them, preventing them from continuing their matrimonial life peacefully, then it cannot be termed as violation of the terms of the settlement. Nobody can predict the human mind and the human behaviour especially in a matrimonial relationship, where incompatibility may arise, in day-to-day life due to very many reasons. If the conduct of one spouse turns incompatible to the other spouse, even after re-union on settlement of a divorce case, it cannot be termed as willful disobedience or willful breach of an undertaking given to court. 12. Annexure 5 document produced by the petitioner is a complaint preferred by him before Kodungallur Sub Divisional Office of Police. That complaint shows that, his wife and son used to abuse him and though they give food to him, they are not attending his treatment. His son used to conduct boozing party in his house along with his friends, for which he had complained before Police, and the Police had given warning to him. His Cont.Case (C) No.1931 of 2023 10 demand in that complaint was to evict his wife and son from his house. He was ready to give half of his property to his wife and son, or else to vacate the house, if they are ready to give his share. That complaint will show that, the petitioner wanted to evict his wife and son from his house and that is against his undertaking in the mediation settlement agreement that, he will not evict his wife from the house during her lifetime. So, it was the petitioner who withdrew from the undertaking in the mediation settlement. If the 1[ st ] respondent failed to meet his treatment expenses, the remedy also was provided in the mediation settlement agreement itself, enabling him to mortgage his property, for which intervention of the 1[ st ] respondent was not at all needed, as that property absolutely belonged to him. So, there is nothing to show that, the 1[ st ] respondent committed breach of any undertaking made in the mediation settlement agreement so as to say that, she has committed civil contempt under Section 2(b) of the Contempt of Courts Act. In Annexure 5 complaint, the petitioner was asking to evict the 1[ st ] respondent from the house, in violation of the mediation settlement. The principle ‘One who seeks equity must do equity’ is applicable here. In any view of the matter, there is nothing to show that, the 1[ st ] respondent committed Cont.Case (C) No.1931 of 2023 11 contempt of court by breaching an undertaking given to the court. 13. Now coming to the contempt alleged against the 2[ nd ] respondent, it is pertinent to note that he was not a party in the mediation settlement. It is true that, he is the son of the petitioner. The petitioner is admitting that, the criminal case against the 2[ nd ] respondent for assaulting him was settled in Lok Adalath and he was acquitted under Section 320(8) of Cr.P.C. The award of the Adalath is dated 05.04.2019. 14. Now the prayer of the petitioner is that, since the 2[ nd ] respondent is continuing harassment against him in violation of the settlement arrived before the Lok Adalath, he has to be punished for contempt. Annexure 4 award of the Adalath is to the effect that, both parties discussed the matter and the disputes were settled, offences were compounded, and the accused was acquitted. The principle of ‘double jeopardy’ applies here and since the 2[ nd ] respondent was once acquitted for the offence alleged after compounding the offence, there is no scope for re-opening that case asking him to face trial for the very same offence. If the petitioner has got a case that the 2[ nd ] respondent has committed any cognizable offence against him after settlement of the earlier case, he could have very well approached the authorities Cont.Case (C) No.1931 of 2023 12 concerned, to initiate action against him, for which a contempt case is not the remedy. Likewise, if he is facing harassment from his wife even after re-union, he can approach the jurisdictional Family Court seeking appropriate reliefs. 15. The available facts will show that, the mediation settlement came into force and in compliance of the terms of that settlement, the petitioner and 1[ st ] respondent started living together, settling all the pending cases between them, including the criminal case against the 2[ nd ] respondent. Nothing remained to be executed on the basis of that mediation settlement, except their reciprocal agreement to live peacefully as husband and wife. The rest of the thing, as we have already stated, depends upon the nature, behaviour and attitude of the spouses towards each other, over which nobody can have control. In such circumstances, we find nothing to proceed with the contempt case. For the reasons aforesaid, this Contempt Case is closed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** smp Cont.Case (C) No.1931 of 2023 13 ## **`APPENDIX OF CON.CASE(C) 1931/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1 CERTIFIED COPY OF THE JUDGMENT AND DECREE DATED 12.06.2019 IN O.P NO. 465/2015 OF THE FAMILY COURT IRINJALAKUDA Annexure 2 CERTIFIED COPY OF THE JUDGMENT AND DECREE DATED 12.06.2019 IN O.P NO. 535/2015 OF FAMILY COURT IRINJALAKUDA Annexure 3 CERTIFIED COPY OF THE MEDIATION SETTLEMENT IN O.P NO. 465/2015 & O.P NO. 535/2015 DATED 12.06.2019 Annexure 4 TRUE COPY OF THE LOK ADALATH AWARD DATED 05-04-2019, PASSED IN LOK ADALATH, ORGANISED BY THE TALUK LEGAL SERVICE COMMITTEE, KODUNGALLUR, ALONG WITH (1) TERMS AND CONDITIONS OF ADALATH SETTLEMENT AGREEMENT AND (2) ACCIDENT REGISTER CUM WOUND CERTIFICATE Annexure 5 TRUE COPY OF THE POLICE COMPLAINT DATED 08-06-2023 ALONG WITH CERTIFIED COPY OF THE RECEIPT AND FIRST INFORMATION STATEMENT BEFORE THE KODUNGALLUR SUB DIVISIONAL OFFICE OF POLICE ```