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2023 DIGILAW 1529 (MAD)

B. Venkatesh v. A. Karlina

2023-04-02

V.BHAVANI SUBBAROYAN

body2023
JUDGMENT (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 22.12.2020 in I.A.No.4 of 2019 in H.M.O.P.No.325 of 2019 passed by the Additional Family court, Chennai.) The present Civil Revision Petition has been filed to set aside the fair and decreetal order dated 22.12.2020 in I.A.No.4 of 2019 in H.M.O.P.No.325 of 2019 passed by the Additional Family court, Chennai. 2. The brief facts of the case are as follows:- The petitioner and the respondent, who are husband and wife have filed a petition in H.M.O.P.No.325 of 2019 to dissolve the marriage soleminised between them on 13.03.2000 on mutual consent. The said H.M.O.P.was allowed and the said marriage was dissolved by a decree of divorce on the ground of mutual consent. Subsequently, I.A.No.4 of 2019 was filed by the respondent / wife to direct the petitioner / husband to return sreedhana and household articles to her and a counter was filed by the respondent resisting the claim. The court below allowed the said petition. Aggrieved against the same, the petitioner / husband is before this Court. 3. The case of the petitioner / husband is that the arranged marriage between the petitioner and the respondent was soleminized on 13.03.2000 at Welcome Hotel No.241, Purasawalkam High Roard, Chennai - 7, as per Hindu Rites and Custom in the presence of relatives and elders of both the families. Since there was no cohabitation between the petitioner and the respondent and that they are living separately from 23.07.2004, earlier, the petitioner filed a divorce petition in O.P.No.2395 of 2004 and thereafter, the respondent filed a petition for maintenance in M.C.NO.529 of 2007 and an interim petition in M.P.No.662 of 2018 on the file of the V Additional Family Court, Chennai. When the said cases are pending, at the intervention of both the families, the petitioner and the respondent agreed to separate themselves by mutual consent. Accordingly, the petitioner and the respondent withdrawn their respective cases on 21.01.2019 and filed a petition for divorce by mutual consent in O.P.No.325 of 2019. Thereafter, the said petition was allowed and the marriage was dissolved. Suddenly, the respondent filed an application in I.A.No.4 of 2019 seeking return of sreedhana and household articles, the same is abuse of process of court, however, the said petition was allowed by the court below, hence this petition. 4. Thereafter, the said petition was allowed and the marriage was dissolved. Suddenly, the respondent filed an application in I.A.No.4 of 2019 seeking return of sreedhana and household articles, the same is abuse of process of court, however, the said petition was allowed by the court below, hence this petition. 4. The learned counsel for the petitioner would submit that upon receiving the summons in the above said I.A., the petitioner filed his counter denying the claim of the respondent, however, without considering the averments contained in the counter, the court below had allowed the said I.A., which is contrary to law . 5. The learned counsel for the petitioner represents that the court below failed to consider that the claim made by the respondent in the said I.A., for return of her sreedhana and house hold articles listed in the petition is not at all maintainable, that too after obtaining mutual consent. Further, in paragraph no.8 of the H.M.O.P.No.325 of 2019, it is clearly stated that the respondent was in receipt of sum of Rs.3,00,000/- in cash towards her permanent alimony and in paragraph nos.9 and 10, it has been clearly stated that except the above amount, at the time of desertion they have already exchanged their respective articles from each other and the respondent has taken all her sreedhana articles, dress materials etc., Though the court below clearly extracted the averments in the petition, however, has allowed the petition, which is baseless and liable to be set aside. 6. Though notice to the respondent through Court and privately was ordered as early as on 12.07.2021 and again, fresh notice was ordered to the respondent on 23.07.2021, the court notice had been returned -as no such person- and again notice was ordered to the respondent on 04.11.2022 and the name of the respondent has been printed in the cause list, there is no appearance on behalf of the respondent, either through learned counsel or in-person. 7. Heard the learned counsel for the petitioner and perused the documents placed on record. 8. While allowing the petition in I.A.No.4 of 2019, the court below has observed that after passing of the decree of divorce within a period of 12 days, the respondent has filed the petition for return of articles, that too house hold articles and small quantity of gold articles. 8. While allowing the petition in I.A.No.4 of 2019, the court below has observed that after passing of the decree of divorce within a period of 12 days, the respondent has filed the petition for return of articles, that too house hold articles and small quantity of gold articles. Further, the respondent before the court below had stated that the petitioner promised and assured her that he would return the sreedhana and household articles at the time of filing proof affidavit, however, the petitioner has failed to do so. Also, the petitioner has not denied the said pleading in the counter. By stating Order VIII Rule 5 of CPC and the some citations had proceeded to allow the petition on the ground that a divorced wife can claim maintenance and also her belongings. 9. On going through the averments in the petition in H.M.O.P.No.325 of 2019, it could be seen at Paragraph Nos.8 and 9, that the petitioner / husband agreed to pay a sum of Rs.3,00,000/- towards permanent alimony to the respondent / wife and she has also accepted the same. Further the petitioner as well as the respondent stated that except the above amount, at the time of desertion, they have already exchanged their respective articles from each other and the respondent had taken all her sreedhana articles, dress materials, etc, by stating so, they have signed the documents and now the respondent cannot turn around and state that the petitioner had not handed over the articles and kept in the petitioner-s house. 10. 10. It is relevant to point out that on 05.09.2019, the petitioner has filed a proof affidavit, wherein at paragraph No.8 among other things he has stated that “I have agreed to pay a sum of Rs.3,00,000/- towards permanent alimony to the respondent / wife and the respondent / wife has also accepted the same and both the parties agreed that the amount will be paid by the petitioner to the respondent at the time of enquiry by cash and as such, now I paid a sum of Rs.3 Lakhs to the respondent at the time of signing this proof affidavit.- and at paragraph no.9, it is stated that - at the time of desertion, we have already exchanged our respective articles from each other and the respondent had taken all her sreedhana articles, dress materials etc., and that she has no claim against the petitioner, such as maintenance, interim maintenance, alimony, etc., in the past, present and further, either in movable or immovable properties”. 11. Likewise, on going through the proof affidavit dated 05.09.2019 filed by the respondent / wife, wherein at paragraph No.8 among other things he has stated that “1st petitioner agreed to pay a sum of Rs.3,00,000/- towards permanent alimony to me and I have also accepted the same and both the parties agreed that the amount will be paid by the 1st petitioner to me at the time of enquiry by cash and as agreed by him, now, he has paid the said sum of Rs.3 Lakhs to me at the time of signing this proof affidavit and at paragraph no.9, it is stated that -at the time of desertion, we have already exchanged our respective articles from each other and I had already taken my all sreedhana articles, dress materials etc., and that she has no claim against the petitioner, such as maintenance, interim maintenance, alimony, etc., in the past, present and further, either in movable or immovable properties” 12. From the above proof affidavits it is crystal clear that the petitioner has paid a sum of Rs.3,00,000/ - and the wife has also received the same and with regard to sreedhana articles, both of the parties have exchanged their items at the time of desertion itself. 13. At this juncture, it is relevant to point out the Judgment passed by the Hon’ble Apex Court in Ruchi Agarwal Vs. 13. At this juncture, it is relevant to point out the Judgment passed by the Hon’ble Apex Court in Ruchi Agarwal Vs. Amit Kumar Agarwal in SLP (Crl.) No.3769 of 2003, wherein while dealing with the situation, where the petitioner therein filed a compromise petition before the Family Court admitting receipt of sreedhana and maintenance in lump sum and that she will not claim any maintenance in future. She also undertook to withdraw all proceedings, civil and criminal, filed by her against the respondents within one month of the compromise deed. In the said compromise, the husband agreed to withdraw his petition filed under Section 9 of the Hindu Marriage Act and also agreed to give a consent divorce as sought for by the petitioner therein. Based on the said compromise, the petitioner therein, i.e., Ruchi Agarwal obtained the divorce as desired by her and in partial compliance, she withdrew the criminal case filed under Section 125 Cr.P.C.,, In those circumstances, a quash petition was filed before the High Court, which was partly allowed on the ground of territorial jurisdiction against which the matter was carried to the Supreme Court. The main plea taken before the Supreme Court was that the compromise deed was obtained under threat and coercion and that she did not receive lumpsum amount as maintenance and also sreedhana properties. Taking into consideration of the events, which took place after compromise deed, the Hon’ble Apex Court held that the criminal complaint was filed only with a view to harass the accused and held that it would be an abuse of process of court, if the criminal proceedings are allowed to continue. 14. From the above narrated facts as well as the principles laid down in Judgment of the Hon’ble Supreme Court mentioned supra, it is clear that in the petition seeking divorce on mutual consent filed before the Family Court, the respondent admitted that she has received sreedhana articles, dress materials etc., and maintenance in lumpsum and that she has no claim against the petitioner such as maintenance, interim maintenance, alimony etc., in past, present and future either in movable or immovable properties. It is based on the said consent, the respondent obtained divorce as desired by her, but for the reasons better known to her, she has come forward with the petition seeking sreedhana articles before the court below. It is based on the said consent, the respondent obtained divorce as desired by her, but for the reasons better known to her, she has come forward with the petition seeking sreedhana articles before the court below. However, this Court finds it extremely difficult to accept the averments in the application, viz., “that the petitioner has promised and assured that he will handover all the sreedhana and household articles, which were given to her at the time of marriage in the presence of both side family elders and that believing his words, she has signed in the proof affidavit and after completing the court process to dissolve the marriage, the petitioner did not comply his promise and he has not handed over the articles-, that too when the respondent had earlier in her proof affidavit as well as the petition/affidavit stated that the entire sreedhana articles were taken by her at the time of desertion and that she has no claim against the petitioner such as maintenance, interim maintenance alimony etc., in the past, present and future, either movable or immovable properties. Therefore, this Court is of the view that the respondent having received the relief she wanted without contest on the basis of the terms of the compromise, cannot now come with a new version, hence the order passed by the court below in I.A.No.4 of 2019 deserves to be dismissed. In view of the above and taking note of the conduct of the respondent, it would be an abuse of process of the court, if the proceedings are allowed to continue. Accordingly, the present Civil Revision Petition is allowed and the order passed by the court below in I.A.No.4 of 2019 dated 22.12.2020 is dismissed. No costs.