sec 498, 498 A , 406 and mediation
Gaurav Nanda
(Querist) 17 January 2009
This query is : Resolved
Sir, I am writing you this post on behalf of my brother who is 57 years old and is a 2nd engineer in merchant navy. His wife is 51 years old and they have 2 sons 23 and 18 years old at present.
To begin with about 8 or 9 years back my brother had a fight with his wife on which she left home taking the 2 minor boys with her. Then later she went to the police and registered a false case of dowry,cruelty,istridhan under sections 498,498A & 406. As a result my brother also approached court for anticipatory bail. There his wife laid a condition that she will not oppose the bail if she is given a residence for her and her sons living. My brother also agreed & he bought a 3 room flat in Delhi and gave the same to her just for the purpose of living only, after that he himself never went in the flat and stayed at Shimla in his mother's house. THEREAFTER she filed a case of maintenance restitution of conjugal rights and her temporary maintenance was fixed at 18000 per month.
Being in merchant navy my brother has to go to abroad and on high seas, here his wife always saw and continues to see golden opportunity to extract money and get her demands fulfilled. In these 9 years she many times threatened and sometimes also filed bail cancellation application in his absence, on false grounds if ever her demands were not fulfilled. Just because of his job my brother always agreed to her demands like flat, maintenance, etc without contesting the case. When their elder son turned 17 he decided to live with his father and is living with his father at present.
PRESENT SITUATION-: over these 9 years the criminal case went on a very very slow pace and except long dates nothing happened in the case. But few months back the stage of charge that is whether to be charge or not came. On seeing this a family matter the magistrate of Tis Hazari,Delhi asked both the parties if they want to go for mediation and both parties also agreed. Then this case was transferred to the mediation cell. Here his wife presented her demands like increase in maintenance,cash money,car,property,etc. and after some dates my friend also agreed to them. Then both the parties in present of their lawyers and judge signed the agreement in medition cell.Now as per the legal procedure the case in the mediation cell was over and again went back to magistrate court of Tis Hazari from where it was suppose to go to high court for questioning and final closer. But later greed came in her mind, she thinks that even more money can be extracted by further amending the agreement and so she retracted from the agreement of medition cell in the magistrate court & magistrate gave another date.His wife is asking the agreement to be rewritten or amended on which my brother is not agreeing. Is retracting from signed agreement legal? Does it not come under some crime like perjury or contempt? Is this also not some violation of any contract or civil law? ANY OTHER ADVICE IS THIS MATTER IS MOST WELCOMED.
A. A. JOSE
(Expert) 17 January 2009
Dear Mr.Nand,
First of all, please note that Mediation is after all a bi-lateral process to arrive at a settlement of disputes through the medium of an independent neutral third person and as such unless both the parties to the dispute have consented to such an agreement, there is little scope for any one of the parties to agitate over the issue for bringing the other side to agree to a settlement. Even if an agreement has been signed by both the parties there is scope for retracting and/or challenging the same if the party can prove that he/she was under some incapacity when the agreement was signed or such an agreement was arrived at under some coercion or fraud,etc. reasons. Of course, your brother or friend (it is not clear as to whether it is your brother or friend as at one place you have referred him as your friend ! ) can take the plea that once after the settlement is signed by both the parties, it is not open to any party to retract from the same and that the party is estopped from retracting from what has been agreed to by the parties. However, there appears to be no case for prejury or contempt against your sister in law .
