Sheeba K.V. and Neethul Sunil v. Sunil K.N.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 ``` ``` OP(CRL.) NO. 73 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT IN MC 239/2017 OF FAMILY COURT, KANNUR ``` ## **`PETITIONERS/RESPONDENTS/PETITIONERS:`** ``` 1SHEEBA K.V. AGED 47 YEARS D/O. PADMANABHAN, RESIDING AT SHEEBA NILAYAM, KOKKOT P.O CHALAKKODE, VIA PAYYANNUR, KANNUR DISTRICT 670 307 ``` ``` 2NEETHUL SUNIL, AGED 19 YEARS S/O. SUNIL K.N, RESIDING AT SHEEBA NILAYAM, KOKKOT P.O CHALAKKODE, VIA PAYYANNUR, KANNUR DISTRICT 670 307 ``` ``` BY ADV M.SREEKUMAR ``` ## **`RESPONDENT/PETITIONER/RERSPONDENT:`** ``` SUNIL K.N. AGED 51 YEARS S/O. LATE KRISHNAN VAIDYAR, RESIDING AT NAMMANATH HOUSE, P.O MUNDAYAD, ATHIRAKAM VILLAGE, ELAYAVOOR AMSOM, KANNUR TALUK AND DISTRICT 670 594 BY ADV SRI.C.K.SREEJITH ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(CRL.) NO. 73 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 28[th] day of November, 2022 This original petition (Criminal) has been filed under Article 227 of the Constitution of India and the prayer herein is to set aside Ext.P7 common order in CMP Nos.903 and 905 of 2019 in M.C.No.239/2017 on the files of the Family Court, Kannur. 2. The petitioners herein are the wife and the child of the respondent. 3. Though notice served upon the respondent, he did not appear. 4. Heard the learned counsel for the petitioners. 5. In this matter, when MC No.239/2017 filed by the petitioners against the respondent and OP No.667/2017 filed by the petitioners against the respondent were pending before the Family Court, the parties were referred to ``` 3 ``` ## **`OP(CRL.) NO. 73 OF 2021`** mediation at the Mediation Sub Centre, Kannur. Accordingly, both the cases were settled and Ext.P2 herein is the copy of the said mediation agreement. 6. It is submitted by the learned counsel for the petitioner that, acting on Ext.P2 mediation agreement, the petitioners herein withdrew OP No.667/2017 and satisfied with the payment of maintenance at the rate of Rs.8,000/and Rs.7,000/- each, by the respondent herein, as stipulated in the mediation agreement. 7. Later on, the respondent herein filed two petitions, viz, CMP No.903/2019 and 905/2019 in MC No.239/2017, on the allegation that Ext.P2 mediation agreement is void _ab initio_ as it contained the signature of the second petitioner herein, who was minor at the time of the agreement and also the first petitioner herein scribbled the signature of the second minor petitioner in the agreement. Further, the contention raised was that the first petitioner did ``` 4 ``` ## **`OP(CRL.) NO. 73 OF 2021`** not obtain leave of the Court to enter into compromise on behalf of the minor under Order 13 Rule 3 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’ for convenience). 8. Though the petitioners filed counter resisting the said contention and supporting the legality of Ext.P2, the Family Court Judge, after referring two decisions, held that, decree, judgment or order obtained by fraud has to be treated as non est and nullity and therefore, the same could be challenged in any court at any point of time in a collateral proceedings. 9. I have perused Ext.P2 settlement agreement. The same contains two parts. The first part is the agreement by the respondent herein to pay Rs.8,000/- to the first petitioner and Rs.7,000/- to the second minor petitioner. The second part is an agreement entered into by the first petitioner to withdraw OP No.667/2017, a suit filed for getting past ## **`OP(CRL.) NO. 73 OF 2021`** ## **`5`** maintenance. Now, it is submitted that acting on Ext.P2 agreement, the first petitioner withdrawn O.P.No.667/2017 and thereby relinquished her claim for past maintenance. Thereafter, the respondent, with a view to evade from payment of maintenance due from the date of petition in MC No.239/2017, filed these petitions on technical grounds and the Family Court wrongly appraised the said aspects and finally, recalled the order and MC No.239/2017 restored back to file. 10. Insofar as the decision referred by the learned Family Court Judge as one reported in ‘ **2004(4) KHC 609’** when this Court called for remarks of the learned Family Court Judge, he had reported that decision, in fact, intended is **‘2017(4) KHC 609’ : ILR 2017 (4) Kerala 71 (Preeju David v. Minor Mebel & Another).** 11. Going by the decision reported in **Preeju Davis** ( _supra),_ this Court considered the power of the Family Court ``` 6 ``` ## **`OP(CRL.) NO. 73 OF 2021`** to restore an application filed under Section 125 the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’ for convenience), which was dismissed for default. The said decision not dealt with recalling of an agreement entered into by the parties by due process of mediation. 12. The learned counsel for the petitioner placed Full Bench decision of this Court reported in **1997(2) KLT 503 (FB) (Satyabhama v. Ramachandran)** to contend that the Family Court acts as a criminal court and not as a civil court, while disposing application filed under Section 125 of Cr.P.C. in exercise of its jurisdiction under Section 7(2)(a) of the Family Court Act. It was held further that the said order can be put on challenge only under the Criminal Procedure Code and not as a civil revision petition. 13. In the case on hand, the respondent herein agreed to pay maintenance at the rate of Rs.8,000/- and Rs.7,000/-, from the date of MC, as I have already pointed ## **`OP(CRL.) NO. 73 OF 2021`** ## **`7`** out. Accordingly, the petitioners herein relinquished their claim to get past maintenance by withdrawing OP No.667/2017. Thereafter, the respondent herein filed these petitions to recall the settlement. It could be noticed that in Ext.P2 agreement, the first petitioner duly signed. Further, the signature of the minor also could be found in the agreement, which in fact, is not necessary at all, since the minor is not competent to sign an agreement, in view of the prohibitions contained in the Indian Contract Act, 1872. 14. In matters of maintenance, it is the usual practice that the claim for maintenance would also be settled by the mother and the settlement shall operate, unless the minor raises objection to the settlement, if the minor is not agreeable for the settlement terms. Therefore, the minor could very well challenge the same, in accordance with law. 15. In this matter, Ext.P2 is the outcome of mediation process under Section 89 of CPC read with Rules 24 and 25 ``` OP(CRL.) NO. 73 OF 2021 ``` ``` 8 ``` of the Civil Procedure (Mediation) Rules 2005, wherein, a minor also happened to be a signatory though his signature should not have been there. The same can only be treated as a mistake. Here, the respondent agreed to pay maintenance voluntarily and therefore, he cannot revoke the same, unless specific reasons for the same is established. Now the respondent has no case that he had signed in the settlement under any vitiating circumstances. Thus, it is discernible that the parties with due consent agreed on terms and in such a case, there is no reason to recall the mediation agreement, merely on the ground of a factual error and to put the petitioners, who are wife and minor child (now minor attained majority), in darkness in the matter of getting maintenance. In view of the above, the order impugned found to be unsustainable and accordingly, the same is liable to be set aside. In the result, this petition stands allowed and Ext.P7 order stands set aside. Therefore, it is held that Ext.P2 ``` 9 ``` ``` OP(CRL.) NO. 73 OF 2021 ``` mediation agreement shall have binding effect and the parties are bound to by the terms therein. Accordingly, MC No.239/2017 found to be disposed of, in terms of Ext.P2, and the petitioners are at liberty to execute the same, in accordance with law. **Sd/A. BADHARUDEEN JUDGE** nkr ``` OP(CRL.) NO. 73 OF 2021 ``` ``` 10 ``` ## **`APPENDIX OF OP(CRL.) 73/2021`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF PETITION DATED 3-3-2017 IN MC NO. 239/17 FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, KANNUR ``` ``` EXHIBIT P2TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED 16-1-2018 EXECUTED BETWEENT HE PETITIONERS AND RESPONDENT EXHIBIT P3TRUE COPY OF ORDER DATED 19-2-2018 IN MC NO. 239/2017 OF FAMILY COURT, KANNUR ``` ``` EXHIBIT P4TRUE COPY OF PETITION DATED NOVEMBER, 2019 FILED BY RESPONDENT IN CMP NO. 905/2019 IN MCNO.239/2017 ``` ``` EXHIBIT P5TRUE COPY OF PETITION DATED 9-10-2019 FILED BY RESPONDENT IN CMP NO. 903/2019 IN MC NO.239/2017 ``` ``` EXHIBIT P6TRUE COPY OF COUNTER STATEMENT FILED BY PETITIONERS IN CMP NO. 905/2019 IN MC NO. 239/2017 EXHIBIT P7TRUE COPY OF ORDER DATED 10-07-2020 IN CMP NOS 903/2019 AND 905/2019 IN MC NO. 239/2017 OF THE FAMILY COURT, KANNUR. ```