Mat.Appeal No.160 of 2004 (OP.310/2002 of Family Court, Malappuram)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA 1933 MA.No. 160 of 2004 ( ) ---------------------OP.310/2002 of FAMILY COURT, MALAPPURAM APPELLANT/APPELLANT/RESPONDENT: --------------------------------- ABDURAHIMAN S/O. RAIMARAKKAR VEETTIL KUNHIMOHAMMED, AGED 32 YEARS, EDAKKAZHIYOOR AMSOM DESOM, CHAVAKKAD. BY ADVS.SMT.K.V.RESHMI SMT.C.S.SULEKHA BEEVI RESPONDENT/PETITIONER: ------------------------- 1 AYISHA K., AGED 25 YEARS, D/O. KANHULIYIL KUNHI BAPU, ERAMANGALAM, AMSOM DESOM, PONNANI TALUK. BY SRI.DILIP J. AKKARA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2012, THE COURT ON 03-02-2012 DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Mat.Appeal No.160 of 2004 ----------------------------------------------Dated 3[rd] February, 2012** ## **J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the respondent/husband in O.P.310/2002 on the file of the Family Court, Manjeri. The respondent herein was the petitioner/wife in that Original Petition, which was filed by her for realization of amount and return of gold ornaments. 2. The case of the respondent/petitioner before the Family Court is as follows : The marriage between the petitioner/respondent and the appellant was solemnized in accordance with the Islamic rites and ceremonies, on 12.3.2000. The respondent herein gave Rs.1,00,000/- and 32 sovereigns of gold ornaments at the time of marriage. The appellant appropriated the money and ornaments to start a duty paid shop of foreign goods. Further, an amount of Rs.6,000/- was also entrusted to the appellant by the respondent's family members. Since February, 2001, the appellant and respondent are living separately due to differences of opinion. On 28.6.2001, the respondent and the Mat.Appeal No.160/04 2 appellant executed an agreement, in the presence of mediators. On the date of agreement, the appellant herein paid an amount of Rs.50,000/- towards the amount of Rs.1,00,000/due. Further amount of Rs.50,000/- was agreed to be paid later. Further, Rs.6,000/- was to be paid later and 32 sovereigns of gold were agreed to be returned within four months from the date of the agreement. On 27.10.2002, the appellant paid Rs.50,000/- more to the respondent and the date for performance was extended upto 25.12.2002. The appellant herein did not either return back the balance amount or the ornaments, after 25.2.2002. Hence, the respondent/petitioner preferred the above Original Petition seeking an amount of Rs.1,34,000/- with interest from the appellant herein. 3. The case of the appellant before the Family Court is as follows : The appellant contended before the court below that the case of the respondent herein that she was given Rs.1,00,000/- and 32 sovereigns of gold at the time of marriage is incorrect because, in the case filed before the Judicial First Class Magistrate Court, Chavakkad under Section 498A of the Mat.Appeal No.160/04 3 Indian Penal Code, the specific case of the respondent was that she was given 50 sovereigns at the time of marriage. Further, in the said case, she also implicated all the family members of the appellant. In a mediation talk between the appellant's family members with that of the respondent's family members, they made the appellant herein to sign some blank stamp papers and some other papers. Nothing was written on the said papers. It is submitted that by using one of such papers, the respondent had created the alleged agreement. But the signature in the agreement produced by the petitioner/ respondent is not that of the appellant herein. 4. In the Family Court, PW1, PW2 and RW1 were examined and Exts.A1, B1 and B2 were marked. The Family Court, on considering the evidence, allowed the petition and a decree was passed directing the respondent to return gold ornaments of 32 sovereigns to the petitioner. In the alternative, the respondent was directed to pay Rs.1,28,000/- to the petitioner towards value of gold ornaments. The respondent was also directed to pay Rs.6,000/- to the Mat.Appeal No.160/04 4 petitioner. The above amounts would carry interest at the rate of 6% per annum from the date of the petition till realization. Against that order, the respondent/husband filed this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. At the time of argument, learned counsel for the appellant raised the following contentions : The court below failed to note the fact that in the 498A proceedings initiated against the appellant and his people, there came a situation that the brother of the appellant could not leave the country and there was a possibility of his job being lost. Accordingly, the appellant and his brother went to he house of one Hyderali as requested by the father of the respondent. From there the respondent demanded Rs.1,00,000/- and accordingly they paid Rs.50,000/- and being afraid of the brother of the appellant losing his job, he signed a paper without writing anything in it. The court below also erred in not accepting the case of the appellant that the agreement referred to is the result of undue influence and is intended to stifle prosecution and is against the Mat.Appeal No.160/04 5 public policy and therefore could not be executed. As per paragraph 7 of the agreement, after detailing all other terms, it is stated that since the matter has come to an end in the above manner, as and when the terms of the agreement are performed, the respondent would appear in the court and do what is required to have the appellant and his people acquitted from the case. 7. Even though the respondent/husband denied the execution of Ext.B1 agreement in his counter and in chief affidavit, when he was cross-examined as RW1, he admitted that Ext.B1 agreement was executed between him and the petitioner and that Ext.B1 agreement contained his signature and that Ext.B1 was signed by him after that agreement was written in full. The respondent/husband produced Ext.B1 agreement, which was in his custody, when it was summoned by the petitioner through court. RW1 admits that he paid Rs.50,000/- to the petitioner on the date of execution of Ext.B1 agreement and another Rs.50,000/- was paid subsequently. Therefore, the genuineness of Ext.B1 agreement cannot be Mat.Appeal No.160/04 6 doubted. 8. The main contention raised by the learned counsel for the appellant is that Ext.B1 agreement is the result of undue influence and is intended to stifle prosecution and is against public policy and therefore, could not be executed. In paragraph 7 of the agreement, after detailing all the other terms, it is stated that since matters have come to an end in the above manner, as and when the terms of the agreement are performed, the petitioner will appear in court and do what is required to have the respondent and his people acquitted from the case. It is this clause in the agreement that has now become the main bone of the contention between the parties. According to the learned counsel for the appellant, this clause is one to stifle prosecution and is against public policy and therefore the entire agreement could not be enforced. In the counter statement itself, the appellant has stated that he and his people were in such a situation that he had no other go but to execute the agreement only. It has come out in evidence that only a week before the date of agreement, the criminal Mat.Appeal No.160/04 7 complaint alleging that the appellant and his people have committed offence under Section 498A of the Indian Penal Code was preferred by the petitioner, apart from the appellant, his relatives including his two brothers and his mother also were made accused in the criminal complaint. The two brothers of the appellant were working abroad. According to the appellant, the brothers were under threat of being arrested on the basis of the complaint filed by the petitioner. This resulted in a situation where the brothers could not go back to their place of work abroad and losing their job. In order to save the brothers from this situation, he had to execute the agreement, learned counsel for the appellant argued. 9. Learned counsel for the appellant invited our attention to the decision reported in **V.Narasimharaju v. V.Gurumurthy Raju** [AIR 1963 SC 107], in which it was held : “If a person sets the machinery of the Criminal Law into action on the allegation that the opponent has committed a non-compoundable offence and by the use of this coercive criminal process he compels the opponent to enter into an agreement, that agreement Mat.Appeal No.160/04 8 would be treated as invalid for the reason that its consideration is opposed to public policy. Once the machinery of the Criminal Law is set into motion on the allegation that a non-compoundable offence has been committed, it is for the criminal courts and criminal courts alone to deal with that allegation and to decide whether the offence alleged has in fact been committed or not. The decision of this question cannot either directly or indirectly be taken out of the hands of criminal courts and dealt with by private individuals.” ## In the decision reported in **Ouseph Poulo and others v. Catholic Union Bank Ltd.** [1964 KLT 398(SC)], it was held : “It is well settled that agreements which are made for stifling prosecution are opposed to public policy and as such, they cannot be enforced. The basis for this position is that the consideration which supports such agreements is itself opposed to public policy. In India, this doctrine is not applicable to compoundable offences, nor to offences which are compoundable with the leave of the court where the agreement in respect of such offences is entered into by the parties with the leave of the court. With regard to non-compoundable offences, however, the position is clear that no court of law can allow a private party to take the administration of law in its own hands and settle the question as to whether a Mat.Appeal No.160/04 9 particular offence has been committed or not, for itself. It is obvious that if such a course is allowed to be adopted and agreements made between the parties based solely on the consideration of stifling criminal prosecutions are sustained, the basic purpose of criminal law would be defeated; such agreements may enable the guilty persons to escape punishment and in some others they may conceivably impose an unconscionable burden on an innocent party under the coercive process of a threat of the criminal prosecution. In substance, where an agreement of this kind is made, it really means that the complainant chooses to decide the fate of the complaint which he has filed in a criminal court and that is clearly opposed to public policy.” ## In the decision reported in **Babu Har Narain Kapur v. Babu Ram Swarup Nigam and another** [AIR 1941 Oudh 593], it was held : “Under S.23 an agreement is void if the entire consideration or a portion thereof was the agreement not to prosecute or to drop a prosecution which had already been started. This applies equally to the case of a guarantee but where no portion of the consideration can be traced to an agreement not to prosecute criminally or not to withdraw a pending criminal prosecution, the surety cannot escape the liability on the ground of an unlawful consideration. There is a clear Mat.Appeal No.160/04 10 cut distinction between the motive prompting an act and a consideration. If the pre-existing liability of the debtor was the sole consideration for the security which he gives, the transaction will be protected, even if it were given with the motive of being saved from the risk of a criminal prosecution. Though the motive of the execution of a document may be the withdrawal of a non-compoundable criminal case, the consideration of an enforceable preexisting liability is quite legal.” 10. The prayer of the petitioner in the Original Petition is not to get back the amount and ornaments from the respondent/husband on the basis of Ext.B1 agreement, but to return back ornaments and money received by him earlier. The petitioner relied on Ext.B1 agreement only to prove the fact that the respondent/husband obtained money and gold ornaments from her in connection with the marriage. In Ext.B1, the respondent/husband had admitted the fact that 32 sovereigns of gold ornaments and Rs.1,06,000/- were with him and he was liable to return the same to the petitioner/wife. Since the petitioner claims relief not on the basis of Ext.B1 Mat.Appeal No.160/04 11 agreement, there is no question of declining to grant a decree on the ground that Ext.B1 is illegal. On appreciating the evidence on record, the Family Court found that the petitioner has satisfactorily proved her case that deducting the amount of Rs.1,00,000/- paid to the petitioner, Rs.6,000/- and 32 sovereigns of gold ornaments were due from the respondent to the petitioner. Since that finding is arrived at by the Family Court on properly appreciating the evidence on record, we find no reason to interfere with the order under challenge. Accordingly, this appeal is dismissed, as it is without any merits. There is no order as to costs. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy) P.S. to Judge.