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2020 DIGILAW 849 (TS)

K. Jason Raj v. Stephen Swift

2020-12-11

G.SRI DEVI

body2020
ORDER : G. Sri Devi, J. 1. The present Civil Revision Petition is filed, under Article 227 of the Constitution of India, aggrieved by the order, dated 11.06.2019, passed in I.A. No. 331 of 2019 in O.P. No. 245 of 2018 on the file of the Judge, Family Court, Secunderabad, wherein and whereunder an application filed by the 1st respondent/husband under Section 151 of C.P.C. seeking a direction against the petitioners herein was allowed. 2. The facts in nutshell are as under: The 1st respondent herein is the husband of the 2nd respondent and the petitioners are the parents of the 2nd respondent. The 1st respondent herein filed O.P. No. 245 of 2018 against the 2nd respondent herein under Section 10 (1) (ix) (x) of the Divorce Act, for dissolution of marriage which took place on 28.12.2011 and also for a direction to the 2nd respondent to pay interest for Rs. 5,00,000/- from 18.04.2015 to 12.01.2018 @ 3% per month, totalling to a tune of Rs. 4,95,000/-. During pendency of the said O.P., the 1st respondent herein filed I.A. No. 331 of 2019 seeking a direction to the petitioners herein to deposit an amount of Rs. 6.00 lakhs along with interest @ 2% per month from 22.04.2015 to 12.12.2018, which was taken from him under the guise of mutual consent divorce agreement, dated 18.04.2015. The contents of the affidavit filed in support of the petition would show that the 2nd respondent herein is the wife of the 1st respondent and the petitioners are the parents of the 2nd respondent, who have collected Rs. 6.00 lakhs from the 1st respondent under the guise of compromise deed executed on 18.04.2015; that the 2nd respondent in her counter filed in O.P. denied the document executed on 18.04.2015 and that she has not received the amount mentioned in the said document; that in paragraph Nos. 15 to 19 of the counter, the 2nd respondent stated that her parents have collected the said amount of Rs. 5.00 lakhs on 22.04.2015 and Rs. 1.00 lakh on 25.04.2015 and that the 2nd respondent is not responsible for the said settlement. It was also stated that the petitioners made the 1st respondent and his family members to believe that they are going to settle the dispute by filing a mutual consent divorce petition and that they have taken Rs. 5.00 lakhs on 22.04.2015 and Rs. 1.00 lakh on 25.04.2015 and that the 2nd respondent is not responsible for the said settlement. It was also stated that the petitioners made the 1st respondent and his family members to believe that they are going to settle the dispute by filing a mutual consent divorce petition and that they have taken Rs. 6.00 lakhs towards permanent alimony for settling the dispute before elders and utilized the same without informing to the 2nd respondent; that the petitioners have cheated the 1st respondent and the 2nd respondent by collecting Rs. 6.00 lakhs towards permanent alimony to the 2nd respondent for filing mutual consent divorce. It was also stated that the 1st respondent has brought the money by taking a loan from third parties and he is struggling to pay the interest to them. It was further stated that the 2nd respondent in her counter stated that she is not responsible for the payment and only the petitioners are responsible to pay the amount and, therefore, he prayed the Court to direct the petitioners herein to pay the said amount of Rs. 6.00 lakhs along with interest. 3. The 2nd respondent/wife in the Counter contended that she has no knowledge of receipt of Rs. 6.00 lakhs by the petitioners and she has not signed the document dated 18.04.2015 as she has not consented to give mutual consent divorce. It was contended that the 1st respondent/husband spoiled her life and he wanted to compromise with her and in that direction he seems to have paid a sum of Rs. 6.00 lakhs and as such the agreement is against the public policy, which cannot be enforced. It was further contended that since the petitioners herein are not parties to the main O.P., the question of seeking a direction against them is impermissible and, therefore, prayed to dismiss the application. 4. After perusing the material available on record, the Court below allowed the said petition. Aggrieved by the same, the present Civil Revision Petition has been filed by the petitioners. 5. Heard Sri J. Sudheer, learned Counsel for the petitioners, Sri S. Surender Reddy, learned Counsel for the 1st respondent and perused the record. As per the cause title of the revision, the 2nd respondent is not the necessary party to the proceedings. 6. Aggrieved by the same, the present Civil Revision Petition has been filed by the petitioners. 5. Heard Sri J. Sudheer, learned Counsel for the petitioners, Sri S. Surender Reddy, learned Counsel for the 1st respondent and perused the record. As per the cause title of the revision, the 2nd respondent is not the necessary party to the proceedings. 6. The contentions in the grounds of revision in nutshell are as under: (i) The order of the Court below is contrary to law, weight of evidence and probabilities of the case; (ii) that the Court below gravely erred in expanding the scope of F.C.O.P. No. 245 of 2018; (iii) that the Court below failed to appreciate that F.C.O.P. No. 245 of 2018 was filed with a prayer by the 1st respondent herein against his wife for dissolution of marriage and, therefore, the scope of the case is only to that effect and it cannot be expanded beyond that; (iv) that the Court below ought not to have entertained, leave alone passing a favourable order in I.A. No. 331 of 2019 against the petitioners herein without they being parties to the main O.P.; (v) that the Court below gravely erred in passing order on 11.06.2019 without there being an implead application to implead the petitioners as respondent Nos. 2 and 3; (vi) that the Court below ought to have appreciated that the question of impleading even if an application is filed, the father and mother of the wife in a proceedings initiated under Section 10 (1) (ix) (x) of the Divorce Act would not arise; (vii) that the Court below failed to appreciate that in a matter of dissolution of marriage the parties are only husband and wife and, therefore, the question of filing an application for impleading the parents of the wife or entertaining the same would amount to going beyond the jurisdiction of the Court; (viii) that the Court below ought not to have expanded the scope of divorce case into a civil suit by ordering payment to the 1st respondent herein when the very main prayer has no such facet of it; (ix) that the Court below failed to appreciate that neither the amount in question is given by the 1st respondent herein to the petitioners nor was received by the daughter of the petitioners, in other words, there is no financial transaction between the husband and wife; (x) that the Court below ought to have appreciated that in the cross-examination the 1st respondent herein, has categorically admitted that he neither gave money nor he was there while the money was alleged to have been given to the petitioners herein and therefore, when he is not even a party to the agreement, the question of insisting for payment to him by the petitioners is unsustainable; (xi) that the Court below failed to appreciate that the Court never ordered notice to be served on the petitioners herein and did not ensure whether notices have been sent by the Court or by the party/Counsel officially and could not have assumed that notice served by the Counsel to the petitioners without authorisation on 20.03.2019 as notice to the petitioners; (xii) that the Court below failed to appreciate that without the petitioners being impleaded, without putting the petitioners on notice and without giving them an opportunity to engage a counsel and to oppose the application, unilaterally passing order in the manner stated above is impermissible and amounting to going beyond its jurisdiction; (xiii) that the Court below gravely erred in simply noting the contentions of the daughter of the petitioners and passing orders against the petitioners while dismissing the application against the originally party to the O.P. i.e., daughter of the petitioners; (xiv) that the Court below gravely erred in holding that the family Court can adopt its own procedure and therefore, application against the petitioners herein can be entertained by it; (xv) that the Court below gravely erred in stating that the daughter of the petitioners admitted receipt of Rs. 6.00 lakhs when the statement of the daughter of the petitioners before the Court below was that she has nothing to do with any transaction but that was construed as if it is an admission by the daughter of the petitioners that they have received the amount; (xvi) that the Court below gravely erred in holding that the petitioners have gone back on family settlement and therefore, they have to return back Rs. 6.00 lakhs with 2% interest per annum; (xvii) that the Court below gravely erred in presuming that the opportunity was provided to the petitioners in I.A. No. 330 of 2019 but they kept silent which would mean accepting the allegations made against them; (xviii) that the Court below obviously has not taken note of the alleged agreement/settlement inasmuch as neither the husband nor the wife are the parties to the settlement; (xix) that the Court below even on merits ought not to have ordered payment against the petitioners, in the teeth of the fact that as per the settlement both the parties must come forward for the mutual divorce, but no efforts were taken by the 1st respondent herein to file a divorce petition for about three years and there is no correspondence and communication to show that the 1st respondent herein was interested to take mutual divorce, but the petitioners and their daughter are avoiding and delaying to file such petition; (xx) that the Court below ought to have appreciated that notice has been sent allegedly for the first time after the settlement only on 17.01.2018 and thereafter O.P. was filed on the ground that the notices sent to the petitioners were not served and the O.P. was filed on 22.03.2018; (xxi) that the Court below ought to have appreciated that there is absolutely no delay on the part of the petitioners herein and delay if any, is caused by the 1st respondent and his family; (xxii) that the Court below also ought to have appreciated the conduct of the 1st respondent herein wherein he was not capable person to get married in physical terms but still got married to the daughter of the petitioners and could not consummate the marriage and got into unnecessary fights and litigation, leading the daughter of the petitioners to attempt suicide which is on record and thereafter petitioners tried the counselling which failed and though it was decided to settle the matter with mutual consent divorce, the 1st respondent did not show any interest for three years and he finally filed O.P. giving an impression as if the marriage was consummated. It is also necessitated to note that though the family Court directed both the boy and girl to go for medical test, the 1st respondent herein did not chose to attend the medical test to avoid the truth of his incapacity to come out and the medical examination conducted on the girl proves that marriage was not consummated, which has come on record. In this background an application to take back the money is unacceptable. All the things were not noted by the Family Court and failure to look into these chronological events and ordering on 11.06.2019 to pay back the money is nothing short of miscarriage of justice. 7. At the time of arguments, learned Counsel for the petitioners while reiterating the grounds mentioned in the revision, prayed to allow the Civil Revision Petition. He relied on the judgments of this Court in G. Pentamma and others v. G. Anjali and another (2010) 5 ALD 332 and in Poonam Agarwal v. Neeraj Agarwal and others (2014) 3 ALD 532 (DB). 8. Reiterating the contentions made before the Court below, learned Counsel for the 1st respondent/husband would submit that the Court below has rightly passed the impugned order as the petitioners have received an amount of Rs. 6.00 lakhs under the guise. of compromise and they did not inform the wife of the 1st respondent about the receipt of the amount and execution of the document, dated 18.04.2015 and that in the Counter the 2nd respondent has categorically admitted that her parents have received the amount and she is not responsible for it. 9. Admittedly, the 1st respondent and the 2nd respondent are husband and wife and the 1st respondent filed O.P. No. 245 of 2018 seeking dissolution of marriage between the parties. In the main O.P. itself, the 1st respondent stated that as per the Minutes of the meeting held on 18.04.2015, the 1st respondent has paid an amount of Rs. 5,00,000/- on 22.04.2015 and Rs. 1.00 lakh on 25.04.2015 to the 1st petitioner herein towards permanent alimony to his daughter (2nd respondent) and also agreed to process the mutual consent divorce petition and that the 1st petitioner has executed receipts to that effect, for which the mother (2nd petitioner) and brother of the 2nd respondent signed as witnesses. 5,00,000/- on 22.04.2015 and Rs. 1.00 lakh on 25.04.2015 to the 1st petitioner herein towards permanent alimony to his daughter (2nd respondent) and also agreed to process the mutual consent divorce petition and that the 1st petitioner has executed receipts to that effect, for which the mother (2nd petitioner) and brother of the 2nd respondent signed as witnesses. It was also stated that since May, 2015, the 1st respondent called the petitioners and their daughter several times over phone to file a petition for mutual consent divorce, but the 1st petitioner threatened the 1st respondent stating that "do whatever you want to do, we are not going to sign on mutual consent divorce and if you insist us we will file and implicate you and your family in criminal cases", and as such he filed divorce O.P. for dissolution of marriage. 10. A perusal of the counter filed by the 2nd respondent in F.C.O.P. No. 245 of 2018 would show that in paragraph No. 15, the 2nd respondent has categorically stated that on 18.04.2015 a counselling was held between both the families with the church members etc., in which the 1st respondent, his parents and the 2nd respondent were not present, however, the parents of the 2nd respondent were present. In paragraph No. 16 of the counter, the 2nd respondent further stated that as per the Minutes of such meeting, the 1st respondent has to pay Rs. 6.00 lakhs, out of which Rs. 5.00 lakhs would be paid on 22.04.2015 and the remaining Rs. 1.00 lakh would be paid on 25.04.2015 and the alleged settlement was without her consent and that her parents cannot settle her life for Rs. 6.00 lakhs without her consent. Further, in the counter filed by the 2nd respondent herein in the present application, she stated that her parents collected Rs. 6.00 lakhs from the 1st respondent herein, but she is not responsible for such settlement and she did not sign on such settlement and that the payment of Rs. 6.00 lakhs by the 1st respondent shows his sinister motive. Considering the contention of the 2nd respondent herein, the Court below held that the petitioners cannot force her to agree for the terms of the settlement. 6.00 lakhs by the 1st respondent shows his sinister motive. Considering the contention of the 2nd respondent herein, the Court below held that the petitioners cannot force her to agree for the terms of the settlement. Since the matter pertains to the life and liberty of the 2nd respondent, she should take a decision and give consent for the settlement and she has got every right to contest her case and disprove the allegations made against her. Admittedly, the petitioners are not parties to the aforesaid O.P. The record discloses that though an opportunity was provided to the petitioners herein to put forth their version by filing counter, they failed to do so. The receipt of Rs. 6,00,000/- from the 1st respondent has been established through the receipts dated 22.04.2015 and 25.04.2015 respectively passed by the 1st petitioner herein. As the 2nd respondent/wife has not accepted the terms of compromise and not agreed to file the mutual consent divorce petition, the 1st petitioner has to return back the said amount, which was received by him towards permanent alimony to the 2nd respondent and also for processing the mutual consent divorce application. Therefore, the Court below has rightly passed the impugned order directing the petitioners herein to return back Rs. 6.00 lakhs with interest at 6% p.a. from the date of payment to the 1st respondent within one week from the date of that order. 11. The facts in the present case and the facts in G. Pentamma and others v. G. Anjali and another (supra) and in Poonam Agarwal v. Neeraj Agarwal and others (supra) relied upon by the learned counsel for the petitioners are different. Hence, the same are not applicable to the facts and circumstances of the present case. 12. For the aforesaid reasons, having regard to the facts and circumstances of the case, I do not find any irregularity much less illegality in the order under revision, so as to warrant interference by this Court and as such the Civil Revision Petition is liable to be dismissed. 13. Accordingly, the Civil Revision Petition is dismissed, confirming the order, dated 11.06.2019 passed in I.A. No. 331 of 2019 in O.P. No. 245 of 2018 on the file of the Judge, Family Court, Secunderabad. There shall be no order as to costs. 14. As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed.