SETHUMADHAVAN M. Vs. SAVITHA V.C.

JUDGEMENT

(1.) This Mat.Appeal has been filed by the appellant, challenging the decree and judgment passed in OP 199/14 of the family court, Kannur. The appellant and respondent are husband and wife respectively. The respondent herein filed the aforesaid original petition against the appellant herein seeking a decree directing the appellant to pay Rs.11,25,000.00 with interest as the amount fixed as per mediation agreement entered into between the appellant and the respondent in OP 730/2012 and MC 340/12 and Rs.5,00,000.00 as compensation for the damages caused to the respondent by the appellant due to the non-performance of the mediation agreement. The averments in the original petition, which are required for consideration of this appeal, in brief, are as follows:

(2.) The marriage between the appellant and the respondent was solemnized on 15/9/2003 and they lived together in matrimony as husband and wife till 11/11/2011. During the aforesaid period of cohabitation, the appellant treated the respondent with cruelty and brutally attacked her frequently and eventually ousted her from the matrimonial home. Against the act of cruelty, she had preferred a criminal case against the appellant under Sec. 406 and 498-A IPC. The police registered Crime No.1659/2012 against him. At the time of marriage, she was given 106 sovereigns of gold ornaments by her mother and relatives. The appellant had obtained all those gold ornaments and appropriated the value of the gold for his business purpose. In addition to that, he had obtained Rs.7,00,000.00 from the respondent on various occasions. When the relationship got strained, she made a request to return the gold ornaments and money to her. But, the appellant did not return the same. Consequently, she filed OP 729/2012 and MC 240/2012 for getting past and future maintenance. She further filed OP 730/2012 for return of gold ornaments and money obtained by the appellant. All the above original petitions and MC were ordered to be tried jointly. When the case was posted for cross-examination of the respondent, all the cases were referred for mediation on the request of the appellant. After conducting various sittings during the mediation process, all the matters in dispute were settled finally and a mediation agreement had been drawn and signed by both parties. As per the terms of the compromise, the appellant had agreed to pay altogether Rs.11,25,000.00 to the respondent. Out of the above amount, Rs.2,25,000.00 had to be paid by the appellant to the respondent on 10/2/2014 after signing the joint petition for divorce. Out of the balance amount, the appellant had to pay Rs.1,00,000.00 on 10/4/2014 and the remaining amount of Rs.8,00,000.00 on the date of evidence in the joint petition for divorce. In accordance with the terms of the compromise agreement, on 10/2/2014 the respondent came to the family court at 10 a.m. for receiving the money and for signing the joint petition for divorce and waited till 5 p.m. But, unfortunately, the appellant did not turn up. On inquiry, the respondent came to know that the appellant absconded with an intention to avoid payment to the respondent. In the light of the above circumstance, the respondent was compelled to file a petition for divorce as OP 168/2014 under sec. 13(1)(a) and (b) of the Hindu Marriage Act. From the attitude of the appellant it was clear that he entered into the agreement with an intention to get all the cases closed pending against him only. The appellant violated the conditions of contract and caused damages to the respondent. In anticipation of promise, she entrusted Rs.1,00,000.00 to a person for obtaining visa to go to Dubai. But, she could not go and lost Rs.1,00,000.00 that has been paid for visa. She suffered great mental pain and agony due to the breach of contract. Hence, she is entitled to get Rs.5,00,000.00 as damages from the appellant. Thus, the aforesaid original petition was filed claiming a total sum of Rs.16,25,000.00 (11,25,000 + 5,00,000).

(3.) The appellant filed a counter statement denying the averments in the original petition; but he admitted that the cases were referred for mediation and a settlement was arrived at. According to him, as per the mediation agreement, the respondent had agreed to withdraw the criminal case, which she initiated against the appellant under Sec. 406 and 498-A IPC. But, she did not withdraw the criminal case in order to get more financial gain from the appellant. After the mediation agreement, when the appellant approached the respondent, she asked for an amount, which was more than the amount that was agreed in the mediation. She said that she will not go to the family court on 10/2/2014 unless the full amount is paid. Later on, the respondent had tried to make an impression that the appellant was absconding with an intention to avoid payment to the respondent. Actually, the breach of contract was committed by the respondent. Subsequently, she had filed OP 168/2014 for divorce and obtained an ex-parte decree. Besides, she filed MC 151/2014 under sec. 125 Cr.P.C. for maintenance before the family court and obtained an order directing the appellant to pay Rs.10,000.00 per month. He denied the allegation that the respondent was given 106 sovereigns of gold ornaments at the time of marriage and he had obtained Rs.7,00,000.00 from the respondent. Actually, she was given 60 sovereigns of gold ornaments and she herself had pledged the same in bank and later redeemed the same from the bank by utilizing the money sent by him from gulf. According to him, when the mediation agreement became unenforceable, the respondent ought to have taken steps to revive the case. That apart, mediation agreement cannot be enforced partially which is beneficial for the respondent and leaving the rest of the part which is favourable to the appellant. With the aforesaid averments, he prayed for dismissal of the original petition.