Settlement
Querist :
Anonymous
(Querist) 11 December 2011
This query is : Resolved
Dear Sir/Madam,
I was married in 26th Jan'2008 no dowry exchanged.Wife suffering from Bipolar Deficiency.
Gone to her house in aligarh from Lucknow in aug'2008.Had two meeting with my Inlaws in year Dec 2008 and Jan'2010. After no answer sent a legal notice thru my advocate .They filed False 498a,406 and Crpc 125 at Aligarh.Case was transferred to mediation cell. Settlement was reached in aug'2010 .According to settlement divorce could be taken .But till date they are not ready to give divorce.
I filled for exparte divorce on 31st Oct'2011.The dates were 2nd Dec for Ws and 9th for me to appear .But on 9th other side
had taken date of 3rd jan'2012.
Kindly let me know what should be my next step and can i file breach of contract.iF yes then help in drafting the petition of the same.
Rgds
Raj Kumar Makkad
(Expert) 11 December 2011
You cannot file against alleged breach of contract. Settlement reached between the parties out of court has not legal sanctity so no action can be initiated thereupon.
So far litigation is concerned, you are on right track. Defend all cases filed against you and persue your case effectively. I hope a stage of compromise may arrive during performing duty by both parties.
Querist :
Anonymous
(Querist) 11 December 2011
Thanks for the advice Mr.Makkad.
My settlement was made by Aligarh Mediation Cell at Aligarh District Court .It was duly signed by parties ,there lawyers and Mediators
Devajyoti Barman
(Expert) 11 December 2011
A part can always retract from the agreement in mediation centre.
Insistence of such agreement would not help you.
Rather concentrate in your case.
Sanjeev
(Expert) 11 December 2011
No party can back out from the mediation agreement as this was not a normal settlement but was referred to mediation by HC persuant to filing of writ for quashing of FIR article 226. when the agreement for settlement was arrived the HC quashed the case. You should file modification in the HC and on listing present the facts of non compliance by wife of the condition of filing MC divorce.
The court would summon the complainant (ur wife) and the case would be decided and probably would issue directions to her to file MC divorce by a specificc date. In case she still not cooperates then a defamation can be filed.
I am giving the statute under which Allahabad HC Mediation centre is created:
Commencement, Scope
1. This Scheme has been framed under section 89 of the Code of Civil Procedure,
1908 and the relevant provisions of the Arbitration and Conciliation Act, 1996 in
order to facilitate the mediation and conciliation of disputes pending and being
filed in the Allahabad High Court Mediation and Conciliation Center.
2. This Scheme shall be called the ‘Allahabad High Court Mediation and
Conciliation Scheme.’
3. This Scheme shall operate from 16th October, 2006.
4. For the purpose of this Scheme the term “Mediation shall mean and include
“Conciliation.”
I. Cases Suitable for referral to Mediation/Conciliation
Cases suitable for referral to mediation/conciliation include commercial and
Devajyoti Barman
(Expert) 11 December 2011
I would be thankful if Mr Sanjeev gives the relevant clause showing the compelling force of any settlement made before the meadiation centre like the one made before the Lok Adalat.
prabhakar singh
(Expert) 11 December 2011
A mediation is mediation and not a decree of divorce,unless some custom is proved no divorce can take place without a decree of court.Even a consent decree is regulated by law and not by parties is every body knowledge.
You can not file breach of contract.I expect that they are planning your petition to take to Aligarh.
Sanjeev
(Expert) 11 December 2011
This is a sample order which would have been passed in this case. Study this and share your views if after paying the alimony wouldnt backing from the Mutual consent attract Defamation. The order which the author is talking about is a order as below which is passed by court basis mediation settlement. This is a court order :
Court No. - 42
Case :- CRIMINAL MISC. WRIT PETITION No. - 21350 of 2010
Petitioner :- XXXX And Othes
Respondent :- State Of U.P. And Others
Petitioner Counsel :- S.C. Pandey,J.B.Singh
Respondent Counsel :- Govt. Advocate,Akhilesh Srivastava
Hon'ble Sheo Kumar Singh,J.
Hon'ble Surendra Singh,J.
Heard learned counsel for the parties.
By means of present petition, the petitioners have challenged the FIR dated
17.10.2010 in case crime no. 12 of 2010, under sections 498A, 323 IPC and
3/4 of D.P. Act, Police Station Mahila Thana, District Aligarh. By order
dated 24.11.2010 passed by this Court, the matter was referred to Allahabad
High Court Mediation & Conciliation Centre. The report of mediator dated
29.05.2011 mentions in para 6 of it as below:
"6. The following settlement has been arrived at between the parties hereto:
(a) That Sri XXX (petitioner no.1-Husband) and Smt. XXX Saini
(Respondent No.4-wife) were married on 09.02.2010. After some time of the
marriage, their relation became strained and hence they are living separately
for the last about ten months. They are issueless.
(b) That now both the parties have decided to separate/take Mutual Divorce
on the condition of a permanent alimony amount of Rs. 3,50,000/- (Rs. Three
Lakhs fifty thousand only) payable through the bank draft in the name of Smt.
XXX.
(c ) That today Sri XXX /husband has paid Rs. 3,00,000/- (Three
lakhs) to his wife through bank draft no. 015593 dated 26.05.2011 in the
name of Smt. XXX and she has received the same today before the
mediator. Sri XXX has agreed to pay the remaining permanent
alimony amount of Rs. 50,000/- on the date of filing of joint divorce petition
by mutual consent.
(d) That as soon as the bank draft of the said remaining permanent almony
amount is submitted by Sri XXX before the court concerned, this
compromise will become effective and operative and Smt. XXX will
receive the same before the court itself. It is made clear between the parties
that after receiving the entire amount of Rs. 3.50 lacs, Smt. XXX /wife
shall not be entitled to received any kind of maintenance etc. from her
husband or his family members.
(e) That both the parties agree that this compromise shall be treated as their
consent for mutual divorce and they shall be entitled to take formal decree of
divorce from the court of their choice.
(f) That That in the view of above noted agreement between the parties, both
the parties agree that all civil and criminal cases filed by them against each
other which including the above noted ones, shall be treated to be withdrawn
and the decree of divorce to be passed for all practical purposes from the day
when the bank draft of agreed remaining permanent alimony amount of Rs. 50,000/- is submitted by Sri XXX before the court concerned."
From the above, it is clear that Sri XXX (petitioner no.1-Husband)
and Smt. XXX (Respondent No.4-wife) have amicably settled their
dispute and they have decided to live separately. Respondent no.4 is no more
interested in prosecuting the petitioners in the present case arising out of case
crime no. 12 of 2010, under sections 498A, 323 IPC and 3/4 of D.P. Act,
Police Station Mahila Thana, District Aligarh.
In this view of the matter, the writ petition is allowed and the FIR of case
crime no. 12 of 2010, under sections 498A, 323 IPC and 3/4 of D.P. Act,
Police Station Mahila Thana, District Aligarh as well as consequential
proceedings, if any, shall stand quashed.
Order Date :- 25.7.2011
Imroz
Sanjeev
(Expert) 11 December 2011
@Devajyoti- Do you mean any one party can walk away with the compensation amount and then withdraw from the settlement than whats the validity of courts orders.
Raj Kumar Makkad
(Expert) 11 December 2011
Sanjeev has devoted his full efforts in resolving your query.
Shonee Kapoor
(Expert) 11 December 2011
Good effort.
Delhi HC has routinely quashed cases in such scenerios, however practise at Allahabad HC might be different.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Devajyoti Barman
(Expert) 12 December 2011
Oh..this is quite well established principle pf law as the wife has accepted the benefit ot of compromise and then backs out.
Even I have quashed one case from hig court on this point alone.
What I was trying to say was even if the [parties come to an settlement on principle before the mediation center , any of them can retract later on , of course nothing is done in pursuance of that compromise.
If the wife has received the money out of settlement then certainly it can not be said that the compromise is not made.
Querist :
Anonymous
(Querist) 12 December 2011
What would be my next step in this regards
Querist :
Anonymous
(Querist) 12 December 2011
My terms of settlement were
1) quash of all the cases
2) Both can live separately , can marry and other party would have no objection and after mutual consent take divorce.
Kindly let me know what should be my next course of action.
I have moved divorce petition on 31st Oct'2011. On 9th Dec'2011 waqalat nama has been submmited by other side lawyer for 3rd jan'2012 date
Sanjeev
(Expert) 13 December 2011
was there any compensation that you paid vide this settlement and is that documented in the court quashing order?
Querist :
Anonymous
(Querist) 13 December 2011
Yes compensation was made at the time of settlement and the same was used to quash the order
Querist :
Anonymous
(Querist) 16 February 2012
I filed for divorce on 31st Oct'2011.The dates were 2nd Dec for Ws and 9th for me to appear .But on 9th other side had taken date of 3rd jan'2012.On 3rd Feb'2012 my wife submitted the WS.My lawyer is saying that issue has to be made and then statement of my wife would be recorded .want to know what is this issue and who prepares it
