Thursday, 26 May 2016

Whether Husband and wife can be permitted to resile from compromise which was acted upon?

During pendency of this MATA, it appears that both
the parties have settled the matter. In fact, pursuant to our
direction dated 14.1.2016, both the appellant and respondent
appeared in person on 18.1.2016. Though, the respondent stated
that by way of compromise, he has paid Rs.7,00,000/- to the
appellant, the appellant disputed the same. However, on being
questioned in open Court in presence of her father and her
counsel, the appellant stated unequivocally that she had accepted
Rs.3,00,000/- by way of compromise of the lis. In such
background, according to our considered opinion, nothing
remains to be adjudicated in the present appeal as the
compromise entered into between both the spouses is complete
and acted upon and hence they are bound by the compromise and
they cannot resile from the same.
ORISSA HIGH COURT, CUTTACK
MATA NO.128 of 2015

Stm. Monisha Sharma 
 -versusSri
Ashis Sharma 
Date of Order: 22.01.2016

P R E S E N T:
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY
Citation: AIR 2016(NOC) Orissa

Biswajit Mohanty, J. The appellant has filed the present MATA with a
prayer to set aside the judgment and order dated 6.7.2015 passed
by the learned Judge, Family Court, Cuttack in C.P. No.171 of
2014 by which the learned Judge, Family Court decreed the above 
Civil Proceeding on contest against the appellant (present
respondent) and declared that the marriage solemnized between
the appellant and respondent on 10.12.2013 stood dissolved by
decree of divorce. Learned Judge, Family Court further directed
the respondent to pay permanent alimony of Rs.3,00,000/- to the
appellant within a period of one month.
2. The short facts of this case are that the marriage
between the appellant and respondent was solemnized at Cuttack
on 10.12.2013 as per Hindu rites and customs whereafter both of
them lived together in the house of the respondent. According to
the respondent, who moved the learned Judge, Family Court,
Cuttack in C.P. No.171 of 2014 against the appellant for
dissolution of their marriage by a decree of divorce took the stand
that from the very beginning of their marital life, the appellant told
before the respondent that she had been forced by her parents to
marry respondent against her will and consent as she was having
intimacy with another person and they had already decided to
marry. Accordingly, the appellant distanced herself from the
respondent and did not allow him to have cohabitation with the
respondent. This greatly shocked the respondent. It is the case of
the respondent that the appellant continued to be in touch with
the other person through her mobile phone and when the
respondent protested, she became furious and started scolding 
him in filthy language. She also behaved with the respondent in
an arrogant and abnormal manner. All these things were brought
to the notice of the parents of the appellant. Thereafter, on being
advised by them, the respondent took the appellant to Puri on a
pleasure trip on the eve of New Year’s Day and stayed there in a
hotel on 31.12.2013 and on 1.1.2014. During their stay, they
attended the New Year’s party held in that hotel and to his utter
surprise, the respondent found the appellant smoking cigarettes
and taking wine while compelling the respondent to join her. On
refusal, the appellant misbehaved with him before others. Being
unable to tolerate the same, the respondent took the appellant
inside the room where the appellant slept separately and refused
to have physical relationship with the respondent. Subsequently,
on 10.2.2014 the appellant went to her parental house with her
brother. During her stay there on 12.2.2014 at about 8.30 P.M.,
the respondent was informed by his father-in-law that the
appellant had been to parlour along with her cousin sister but fled
away therefrom. So, her father lodged a missing report at Lalbag
Police Station on 13.2.2014. On 14.2.2014, the appellant returned
back to her father’s house. From the police enquiry, it revealed
that the appellant with the assistance of one Utkal Tiwari had
been to Kolkata with an intention to proceed therefrom to Delhi to
join with the other person with whom she had intimacy. But when 
the plan of the appellant could not fructify, she returned back. All
these acts and conduct of the appellant caused much mental
agony to the respondent. However, to resolve the dispute, family
members of both parties held a Panch meeting in the house of the
mediator - Brij Kishore Sharma on 19.2.2014. In the said meeting,
it was decided that to keep the prestige and dignity of both the
families both parties should go for divorce on mutual consent. But
thereafter, the appellant and her parents did not come forward for
divorce on mutual consent. However, being physically and
mentally tortured by the appellant in the aforesaid manner and on
account of non-consummation of their marriage and being unable
to live with the appellant under one roof any further, the
respondent filed C.P. No.171 of 2014 before the learned Judge,
Family Court, Cuttack.
3. The appellant filed written statement challenging the
maintainability of the divorce petition while denying the
allegations of the respondent. Before the learned Judge, Family
Court, Cuttack, the appellant took the plea that from the
beginning that the respondent not only misbehaved with her but
also tortured the appellant physically and mentally for no fault of
her while casting doubt on her character without any basis. The
appellant was confined in a room by the respondent and his
parents and was not allowed to take food nor to talk with her 
family members over mobile phone. Further, the appellant took
the stand that with the apprehension that she might take any
legal action against the respondent and his parents, the
respondent filed divorce petition making all sorts of false
allegations against her.
4. Upon appreciation of evidence on record, vide
impugned judgment dated 6.7.2015, the learned Judge, Family
Court, Cuttack has inter alia returned a finding that the
appellant has refused to keep sexual relationship with the
respondent from the beginning of their marital life till her
departure from her matrimonial home which thus led to nonconsummation
of their marriage followed by their separation and
irretrievable breakdown of their marriage. Further, the learned
Judge, Family Court came to a conclusion that thus the
respondent was subjected to mental cruelty by the conduct and
behaviour of the appellant and the respondent was deprived of
getting marital bliss for which the appellant was squarely
responsible. As such both parties cannot reasonably be expected
to live together. For all these reasons, probably in order to settle
the matter on 19.2.2014, the appellant and her parents disclosed
their decision for divorce on mutual consent of both parties.
However, for reasons best to known to them, instead of proceeding
in that direction, they retreated whereby the respondent was 6
compelled to approach the learned Judge, Family Court. As
indicated, learned Judge, Family early decreed the civil proceeding
on contest and declared the marriage solemnized between the
appellant and respondent stood dissolved by a decree of divorce.
Further, the learned Judge, Family Court awarded a permanent
alimony of Rs.3,00,000/- to the appellant. Challenging the said
impugned judgment dated 6.7.2015, the appellant filed the
present Matrimonial Appeal.
5. During pendency of this MATA, it appears that both
the parties have settled the matter. In fact, pursuant to our
direction dated 14.1.2016, both the appellant and respondent
appeared in person on 18.1.2016. Though, the respondent stated
that by way of compromise, he has paid Rs.7,00,000/- to the
appellant, the appellant disputed the same. However, on being
questioned in open Court in presence of her father and her
counsel, the appellant stated unequivocally that she had accepted
Rs.3,00,000/- by way of compromise of the lis. In such
background, according to our considered opinion, nothing
remains to be adjudicated in the present appeal as the
compromise entered into between both the spouses is complete
and acted upon and hence they are bound by the compromise and
they cannot resile from the same.
6. However, since the parties have given a quietus to the
matter, it is directed that all the allegations and counterallegations
made by the parties against each other and the finding
of the learned court below as to character of appellant should be
ignored and would have no effect so that both the parties, who are
very young, can start their lives afresh without in any way being
burdened by such allegations and counter-allegations and
findings of the learned court below.
Accordingly, the MATA is disposed of.

 …..…………………………
 Biswajit Mohanty, J.
Vinod Prasad, J. I agree.
 …..……………………….
 Vinod Prasad, J.
High Court of Orissa, Cuttack
Dated 22nd January, 2016/amit
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