Mutual divorce & further claims
Rahul
(Querist) 08 July 2014
This query is : Resolved
Does the below set of points puts the husband on the safeside or what else can be written in the Mutual consent divorce so that after full & final settlement in Mutual Consent Divorce wife & child can not claim any thing from husband?
Pattern followed by parties , family court counselors , family courts in Mutual Consent Divorce u/s HMA 13 b(1) in which parties are signing the Mutual Consent divorce with below points :-
1. Petitioner No. 1 (husband) will pay x amount to the Petitioner No.2 and to the child as a full & Final settlement
against istridhan, dowry , maintenance (past, present, future) of petitioner No. 2(wife) and minor child and
permanent alimony of petitioner No. 2 (wife) and nothing remains due qua this marriage after the total payment
of x amount.
2. Both Petitioner No. 1 (husband) & Petitioner No. 2 (wife) will withdraw their cases like
Wife will withdraw 125CrPC & its related executions & cooperates well in Second motion of Divorce & in FIR Quashing.
Husband will withdraw Guardianship & Divorce Case on the date of First Motion.
3. The Petitioner No. 2 (wife) and the minor child are withdrawing , leaving their all rights for maintenance under present or
future laws whatsoever.
4. The petitioner No. 2 (wife) categorically undertakes to assume all legal liabilities on herself like accommodation
,schooling, education, medication, marriage or any other expenses whatsoever for maintenance of self & child, in future.
5. Petitioner No. 2 & child will not claim or demand any rights, titles or interest in the movable or imovable
assets/ancestral property of petitioner No.1 and his parents, whatsoever.
6. Both the pareties have no remaining disputes with each other.
7. Child custody will be there with petitioner No. 2 (wife).
The above said terms were drafted by one of the case known to me.
Is there any more points to be written to safeguard husbands from the claims like happened in the supreme court citation posted next to this message???????
Rahul
(Querist) 08 July 2014
Supreme court- Compromise is not a bar to file further cases for
maintenance* *to Abla nari: *
Supreme Court of India
Nagendrappa Natikar vs Neelamma on 15 March, 2013
Bench: K.S. Radhakrishnan, Dipak Misra
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 11800 OF 2013 [Arising out of C.C. No.
1297 of 2012]
Nagendrappa Natikar .. Petitioner Versus
Neelamma .. Respondent J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Delay condoned.
2. The question that is raised for consideration in this case is whether a
compromise entered into by husband and wife under Order XXIII Rule 3 of the
Code of Civil Procedure (CPC), agreeing for a consolidated amount towards
permanent alimony, thereby giving up any future claim for maintenance,
accepted by the Court in a proceeding under Section 125 of the Code of
Criminal Procedure (CrPC), would preclude the wife from claiming
maintenance in a suit filed under Section 18 of the Hindu Adoption and
Maintenance Act, 1956 (for short “the Act’).
3. The marriage between the petitioner (husband) and respondent (wife) took
place on 24.5.1987. Alleging that the petitioner is not maintaining his
wife, respondent filed an application under Section 125 CrPC for grant of
maintenance before the 1st Additional JMFC at Gulbarga, being Misc. Case
No. 234 of 1992. While the matter was pending, an application was preferred
by the parties under Order XXIII Rule 3 CPC on 3.9.1994 stating that the
parties had arrived at a compromise, by which the respondent had agreed to
receive an amount of Rs.8,000/- towards permanent alimony and that she
would not make any claim for maintenance in future or enhancement of
maintenance. Consent letter dated 30.3.1990, which is in Kannada, the
English translation of the same reads as follow: “Consent letter:
I, Neelamma W/o Nagendra Natikar, Age 23 years, R/o Old Shahabad, do hereby
execute this consent letter in favour of my husband Nagendra Natikar with
free will and consent without coercion and misrepresentation. After my
marriage with Nagendra Natikar, I could not lead marital life happy with my
husband due to my ill health as prior to my marriage I was suffering from
backache, Paralysis stroke to my left hand and left leg and was also
suffering from epilepsy (Fits disease) and therefore I have myself decided
to withdraw from marital life. I have given my consent for mutual divorce.
I have no objection if my husband would contract second marriage with
someone. Prior to my marriage I was suffering from chronic disease. I had
asked my father not to celebrate her marriage with anyone. My father
forcibly got marriage with Nagendrappa Natikar. *Henceforth I will not make
any further claims and also forfeit my rights in future and I will not
claim compensation or maintenance or alimony. I am satisfied with the
payment of Rs.8000/- and I will not make any further claims against my
husband.*
I have executed this consent letter in favoaur of my husband without any
force of anybody and free from misrepresentation or coercion. My
father-mother or nay other family members have no objection for executing
this consent letter.
Signature of Executant
Neelamma
(Signed in Kannada))
Signature of witnesses:
1. Tippanna (signed in Kannada)
2. Devindrappa (signed in Kannada)
3. Syed Zabiullah Sahab (signed scribe)�
The Court, on the same day, passed the following order: “Parties both
present. Both parties and advocates files compromise petition. The contents
of the compromise petition is read over and explained to them. They admit
the execution of the same before court. Respondent paid Rs.8000/- (eight
thousand) before court towards full satisfaction of the maintenance as per
compromise recorded. In view of the compromise, petition dismissed.�
4. Respondent wife then filed a Misc. Application no. 34 of 2003 under
Section 127 Cr.P.C. before the Family Court, Gulbarga for cancellation of
the earlier order and also for awarding future maintenance, which was
resisted by the petitioner stating that the parties had already reached a
compromise with regard to the claim for maintenance on 3.9.1994 and hence
the application for cancellation of the earlier order is not maintainable.
The Court accepted the plea of the husband and took the view that since
such an order was still in force and not set aside by a competent Court, it
would not be possible to entertain an application under Section 127 Cr.P.C.
The application was, therefore, dismissed on 31.7.2006.
5. We notice, while the application under Section 127 Cr.P.C. was pending,
respondent wife filed O.S. No. 10 of 2005 before the Family Court, Gulbarga
under Section 18 of the Act claiming maintenance at the rate of Rs.2,000/-
per month. The claim was resisted by the petitioner husband contending
that, in view of the compromise reached between the parties in Misc. Case
No. 234 of 1992 filed under Section 125 CrPC, respondent could not claim
any monthly maintenance and hence the suit filed under Section 18 of the
Act was not maintainable. The question of maintainability was raised as a
preliminary issue. The Family Court held by its order dated 15.9.2009 that
the compromise entered into between the parties in a proceeding under *Section
125 Cr.P.C. would not be bar in entertaining a suit under Section 18 of the
Act.*
6. The suit was then finally heard on 30.9.2010 and the Family Court
decreed the suit holding that the respondent is entitled to monthly
maintenance of Rs.2,000/- per month from the defendant husband from the
date of the filing of the suit.
7. Aggrieved by the said order, petitioner took up the matter before the
High Court by filing an appeal, being M.F.A. No. 31979 of 2010, which was
dismissed by the High Court by its judgment dated 28.3.2011, against which
this SLP has been preferred.
8. Shri Raja Venkatappa Naik, learned counsel appearing for the petitioner,
husband, submitted that suit filed under Section 18 of the Act is not
maintainable, in view of the order dated 3.9.1994, accepting the consent
terms and ordering a consolidated amount towards maintenance under Section
125 Cr.P.C.
9. We are in complete agreement with the reasoning of the Family Court and
confirmed by the High Court that the suit under Section 18 of the Act is
perfectly maintainable, in spite of the compromise reached between the
parties under Order XXIII Rule 3 C.P.C. and accepted by the Court in its
order dated 3.9.1994.
10. Section 125 Cr.P.C. is a piece of social legislation which provides for
a summary and speedy relief by way of maintenance to a wife who is unable
to maintain herself and her children. Section 125 is not intended to
provide for a full and final determination of the status and personal
rights of parties, which is in the nature of a civil proceeding, though are
governed by the provisions of the Cr.P.C. and the order made under Section
125 Cr.P.C. is tentative and is subject to final determination of the
rights in a civil court.
11. Section 25 of the Contract Act provides that any agreement which is
opposed to public policy is not enforceable in a Court of Law and such an
agreement is void, since the object is unlawful. Proceeding under Section
125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to
the wife and any order passed under Section 125 Cr.P.C. by compromise or
otherwise cannot foreclose the remedy available to a wife under Section
18(2) of the Act.
12. The above being the legal position, we find no error in the view taken
by the Family Court, which has been affirmed by the High Court. The
Petition is, therefore, dismissed in limine.
…………………………………J.
(K. S. RADHAKRISHNAN)
…………………………………J.
(DIPAK MISRA)
New Delhi,
March 15, 2013
Nadeem Qureshi
(Expert) 08 July 2014
Dear Rahul
contact a lawyer personally it will be better
Rahul
(Querist) 08 July 2014
Hello devajyoti. The query is, in the supreme court verdict to give maintenance to the wife under hama act, even after full an final compromise in 125 case caused pain to the husband.
On the other hand family courts are settling mutual divorce cases under HMA 13 b (1) on the terms mentioned in the initial posted message. So the points as terms signed by the parties ensures the husband protection from any future claims by wife or child or not?????
ajay sethi
(Expert) 09 July 2014
in case of change in circumstances court will allow further maintenance to wife
T. Kalaiselvan, Advocate
(Expert) 09 July 2014
Despite a clearly drafted agreement and the wife or both the parties have fully agreed to have no more claims against each other any time in the future, the wife, if she remains unmarried after such divorce, if desires to claim maintenance u/s 125 Cr.P.C quoting the changed circumstances and inability to maintain herself owing to the paucity of sources of income, the court may very well grant maintenance by an order, that is what has been emphasized by the honorable Supreme court too.
Raj Kumar Makkad
(Expert) 09 July 2014
I do agree with the advice of Kalaiselvan.
Rahul
(Querist) 10 July 2014
Thanks Kalaiselvan for your reply.
What is the way out to be on the safer side like making any sort of clause/term in the Consent Petition ???
Also how it works in the Permanent Alimony case that is section 25 CPC. What terms are being mentioned over there to be on saferside from any future claims despite of any change in circumstances????
What is way to Draft agreement/
contract act in such a way so that it is not opposed to public policy as sc said under any CPC or CrPC acts???
Raj Kumar Makkad
(Expert) 10 July 2014
Your subsequent query is totally academic which requires to be posted in form secion of this site.
Biswanath Roy
(Expert) 12 July 2014
Nicely viewed by Learned Expert Mr.Kalaiselvan, I AGREE WITH HIM.
