Rajendra Kumar G. v. Ambikadevi and Aiswarya R., OP(C) No.1732/2014 (O) & WP(C) No.15997/2014, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936** ## **OP(C).No. 1732 of 2014 (O) ---------------------------** ## **OS 502 OF 2011 OF FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM.** **...** ## **PETITIONER:** ## **------------------** **RAJENDRA KUMAR G., AGED 56 YEARS, S/O.P.K.GOPINATHAN NAIR, DEPUTY MANAGER (PRODUCTION), ANONE PLANT, FACT-PD, UDYOGAMANDAL, HAVING RESIDENCE AT FLAT NO.30, ANUGRAHA, PALLISSERY ROAD, PALARIVATTOM PO, ERNAKULAM, PIN - 682 025** **BY ADVS.DR.SEBASTIAN CHAMPAPPILLY SRI.KURIAN ANTONY EDASSERY SRI.GEORGE CLEETUS SMT.ANN EMIL JOSEPH** ## **RESPONDENT(S):** **-------------------------** ## **1. AMBIKADEVI, AGED 50 YEARS,** **FLAT NO.30, ANUGRAHA APARTMENTS, PALLISSERY ROAD, PALARIVATTOM PO, PIN-682 025** **2. AISWARYA R., AGED 27 YEARS, D/O.RAJENDRA KUMAR G, FLAT NO.30, ANUGRAHA, PALLISSERY ROAD, PALARIVATTOM P.O, ERNAKULAM, PIN-682 025.** **BY SRI.K.GOPALAKRISHNA KURUP (SENIOR ADVOCATE) ADV. SRI.ABHISHEK KURIAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-10-2014, ALONG WITH WPC. 15997/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **OP(C).No. 1732 of 2014 (O)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS: -------------------------------------** - **EXT.P1 - TRUE COPY OF MEMORANDUM OF AGREEMENT DATED 20-6-2011** - **EXT.P2 - CERTIFIED COPY OF THE JUDGMENT DATED 6.7.2011 IN OS 502 OF 2011 OF THE FIRST ADDITIONAL MUNSIFF COURT AT ERNAKULAM.** - **EXT.P3 - TRUE COPY OF THE ORDER IN MC NO.11 OF 2010 DATED 27-6-2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT I AT ERNAKULAM.** - **EXT.P4 - TRUE COPY OF THE ORDER IN OP NO.1484 OF 2010 DATED 6-8-2011 OF THE HON'BLE FAMILY COURT AT ERNAKULAM.** - **EXT.P5 - TRUE COPY OF THE WPC.NO.15997 OF 2014.** - **EXT.P6 - TRUE COPY OF THE COUNTER AFFIDAVIT DATED 24-7-2014.** ## **RESPONDENT(S)' EXHIBITS:** **-** ## **NIL** **---------------------------------------** **/TRUE COPY/** **P.S. TO JUDGE** **mbr/** ## **P.BHAVADASAN, J.** **------------------------------------------O.P.(C) No.1732 OF 2014 & W.P.(C) No.15997 OF 2014 ------------------------------------------Dated this the 14[th] day of October, 2014.** ## **J U D G M E N T** O.P.(C) No.1732/2014 is filed by the husband of the petitioner in W.P.(C) No.15997/2014. The petitioner in O.P.(C) No.1732/2014 instituted O.S.No.502/2011 before the Munsiff Court, Ernakulam seeking to restrain his daughter from trespassing into his residential building and interfering with his residence. The petitioner in W.P.(C) No.15997/2014 who is the wife of the petitioner in O.P.(C) No.1732/2014 instituted two proceedings; one before the Family Court, Ernakulam and the other before the Judicial First Class Magistrate Court-I, Ernakulam. She approached the Family Court, Ernakulam for return of money and gold ornaments which she claimed to have given to the petitioner in O.P.(C) No.1732/2014 at the time of marriage and the Judicial First Class Magistrate Court-I, Ernakulam for protection and for other remedies under the **O.P.(C) No.1732/14 & WP.(C) 15997/14** **2** Domestic Violence Act. 2. While the matters were so pending, the parties were sent by the Munsiff Court, Ernakulam for mediation. It is seen that a memorandum of agreement (Ext.P1 produced in O.P.(C) No.1732/2014) was entered into between the parties at the Mediation Centre. The terms of mediation read as follows: - “(i) മ�ല നമര മ�സ��ള 20-6-2011 ഉചക� 2 �ണ�ക� mediation talk ന� വര��യ�� ഇര� �ക��ള�� ട�യ�ന�ര�ടട അഭ�ഭ�ഷ�ര���യ� ചരച നടത� ത�ട( പറയ�ന വ,വസ�മള�ടട **(** പശ�നങള പറഞ� ഒത� ത2ര3�യ�ര�ക�ന�. - (ii) O.S.502/2011 ട5 വ�ദ� ര�മ7 **(** ന�9��ര ട�യ�ട: ഭ�ര, അ�ബ���മദവ�മയ�ട�� ഇവര �ടട �കള ഐശ=ര,യ9� **(** ശ25ക���മയ�ട�� ഒ3� ഒന�ച � സമ?�ഷമത�ട �� സ��ധ�നമത�ട�� �9ട� 72വ�ക�വ�ന ത2ര���ന�ച�ര�ക�ന�. (iii) ര�മ7 **(** ന�9��റ�ട:യ�� അ�ബ���മദവ�യ�ടടയ�� ��ട��ബത�ട5 ദ�വമസനയ�ള ച�5വ��ളക�യ� ��സ� മത�റ�� 15,000/- ര�പ ര�മ7 **(** ന�9��ര അ�ബ���മദവ�ടയ ഏല3�ച �ട��ള�ട�ന�� അ�ബ���മദവ� വ2ട�ട5 എ5�5� ച�5വ��ള�� ഈ ത�� ഉപമയ�ഗ�ച� ടചയ�ത �ട��ള�ട�ന�� സമത�ച�ര�ക �ന�. ആദ,ടത �9ന� ��സമതക� ര�മ7 **(** ന�9��റ�ന� 10,000/- ര9പടയ ��സച�5വ�ന� ട��ട �ക�ന �(�യ ��യ�ള9 എന �� സമത�ച�ര�ക�ന�. - (iv) ര�മ7 **(** ന�9��റ�ട: ഉട�സതയ�5 �ള പ�5�ര�വടടത അന� **(** ഗഹ Apartment ട5 �9ന�� ന�5യ�5 �ള 30-)0 നമര Flat ട�യ�ന **O.P.(C) No.1732/14 & WP.(C) 15997/14** **3** പ�റട� ഒര�ളക� വ�ലക��മയ� അന,ക���റ� ടചയ�� ഇ5�5� എന�� സമത�ച�ര�ക�ന�. - (v) മ�ലപറഞ ��ര,ങള എ5�5�� �,ത,��യ� പ�5�ച� ട��ള�ട�ന�� ആയത�ല വ2(�ച വര�ത�യ�ല മ�ല പറഞ ��ര,ങള എ5�5�� മ��ടത� വ(� നടത� എട�ക�വ�ന ഇര� �ക��ളക�� അവ��ശ� ഉണ�യ�ര�ക�ട�ന�� സമത�ച�ര�ക�ന�. - (vi) മ�ല പറഞ ��രQങള�� ത2ര���നങള�� എ5�5�� ഉളട3ട�ത� ഇമ3�ള ന�5വ�5 �ള മ�ല പറഞ � �(�വന മ�സ ��ള�� ബഹ���നട3ട മ��ടത�ക� ഇത�ട: അട�സ�നത�ല dispose ടചയ�വ�നത�ടണന�� പരസ�പര� സമത�ച� ത2ര ���ന�ച�ര�ക�ന�”. 3. The mediation settlement was forwarded to the Munsiff ## Court, Ernakulam and the learned Munsiff passed Ext.P2 judgment, the operative portion of which reads as follows: - “4. The terms of the said agreement are lawful and hence accepted and recorded. The above suit is decreed in terms of settlement as follows: - a) That the defendant, her mother Ambika Devi and her sister Sree Lakshmi have the right to reside in the plaint schedule apartment together with the plaintiff and to lead a happy and peaceful life. - b) That the plaintiff shall not sell the plaint schedule property to any third parties or induct any strangers in the plaint schedule property. **O.P.(C) No.1732/14 & WP.(C) 15997/14** **4** - c) That the parties shall suffer their respective costs. - d) Memorandum of agreement signed by the parties before the mediator do form part of the decree”. 4. The suit was disposed of accordingly. M.C.No.11/2010 filed by the wife of the plaintiff in O.S.No.502/2011 was disposed of as follows. “Petitioner and respondent present. Matter settled. Counsel for the petitioner endorsed that the petition is not pressed. Hence, the petition dismissed as not pressed”. 5. The proceedings before the Family Court, Ernakulam initiated by the wife of the plaintiff in O.S.No.502/2011 was disposed of by Ext.P4 order (produced in O.P.(C) No.1732/2014). It is significant to notice that in Ext.P2 decree passed in terms of the mediation settlement, one clause in the deed of agreement was conspicuously absent. That related to clause No.3 of the terms of settlement regarding payment of money as maintenance. 6. Dispute arose between the parties regarding payment of maintenance. It was contended by the plaintiff in O.S.No.502/2011 that since clause No.3 of mediation settlement **O.P.(C) No.1732/14 & WP.(C) 15997/14** **5** is not incorporated in the decree, he is not bound to comply with that portion of settlement. 7. Learned counsel appearing for the petitioner in W.P.(C) No.15997/2014 relies on the decision in _**Sreedhara Pai** vs._ _**Velayudhan, Kunjan Govindan**_ (1950 KLT 495) and contended for the position that terms of settlement cannot go beyond the scope of the suit and therefore, compromise petition could not have been accepted. A few terms of settlement were beyond the scope of the suit and then the decree passed is bad in law. It is contended that the clause regarding monthly payment by husband to wife found in the terms of settlement is not seen incorporated in the judgment and decree in O.S. The compromise terms are not incorporated in the order disposing of matter before Family Court and Judicial First Class Magistrate Court. Therefore, it is argued that the decree incorporating the terms of settlement is to be set aside and O.S, O.P and the matter before Judicial First Class Magistrate Court will have to be re-opened and parties be left to agitate their claim afresh. 8. However, learned counsel appearing for the petitioner in **O.P.(C) No.1732/14 & WP.(C) 15997/14** **6** O.P.(C) No.1732/2014 submits that his suit has almost become infructuous since his daughter whose entry into the house was sought to be restrained is now residing in the house. Learned counsel for the petitioner in O.P.(C) No.1732/2014 submits that the present state of affairs is that he is out of the house. Learned counsel submitted that if the court directs consideration of all matters afresh, he will not interfere with the residence of his wife and his younger daughter. But 2[nd] respondent in O.P.(C) No.1732/2014 has no right of residence in the house as she is married and well employed. 9. There seems to be considerable force in the contentions. It is not known as to why the term regarding payment of monthly maintenance was not incorporated in the decree in O.S.No.502/2011. The matters before Family Court and Judicial First Class Magistrate Court were consequentially closed. Now the petitioner in O.P.(C) No.1732/2014 contends that he is not bound to pay maintenance as decree does not contain such a clause. It is interesting to note that the clause in the decree that petitioner in W.P.(C) No.15997/2014 will live peacefully in the **7** **O.P.(C) No.1732/14 & WP.(C) 15997/14** house with the respondents therein cannot be enforced in law. 10. In short, it is quite evident that the decree in O.S.No.502/2011 is unworkable and also suffers from legal infirmity. Under these circumstances, it is only appropriate to set aside the decree passed in O.S.No.502/2011 before the Additional Munsiff Court, Ernakulam, orders in O.P.No.1484/2010 before Family Court, Ernakulam and M.C.No.11/2010 before Judicial First Class Magistrate Court-I, Ernakulam with liberty to the respective parties to agitate their claims afresh. In the result, these petitions are allowed. Exts.P1, P2, P3 and P4 in O.P.(C) No.1732/2014 are set aside. O.S.No.502/2011 before Munsiff Court, Ernakulam, O.P.No.1484/2010 before Family Court, Ernakulam and M.C.No.11/2010 before Judicial First Class Magistrate Court-I, Ernakulam are restored to file and the parties are free to agitate their claims afresh. The right of 2[nd] respondent in W.P.(C) No.15997/2014 to reside in the house will be considered in O.S.No.502/2011. The respective courts may dispose of the above mentioned matters after giving opportunity to the parties to adduce evidence and in accordance **8** **O.P.(C) No.1732/14 & WP.(C) 15997/14** with law as early as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. The parties shall appear before the Munsiff Court, Ernakulam in O.S.No.502/2011 on 11.11.2014, in O.P.No.1484/2010 before the Family Court, Ernakulam on 14.11.2014 and in M.C.No.11/2010 before Judicial First Class Magistrate Court-I, Ernakulam on 17.11.2014. Issue copies to respective courts. Sd/- **P.BHAVADASAN JUDGE** smp