Saturday, January 31, 2015

MoU that hubby pay 8lakh 2 wife on wife getng dvorce frm court is against public policy not enforcble

Wife who is settled in USA and who left to USA on the day after marriage (meaning no joint living in India), divorces hubby in USA, returns to India and files DV cases In India to get Rs 5 lakhs compensation and Rs 20000 per month as maintenance !!!


* court throws out and MOU entered into between the parents of husband and wife on an MOU for Rs. 8 lakhs
* however NRI / US based wife gets 5 lakhs compensation and rs 20000 p.m. as maintenance !!
* wife HAS already obtained a divorce in USA !! still comes back to India to file DV !!
* wife's dad is a lawyer and argues her case


excerpts
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.......... The MoU was executed after the wife obtained divorce. Clause (2) of MoU reads that the money of Rs.8 lakhs should be paid to the wife after the wife obtains valid divorce. Admittedly, by the date of MoU, divorce has already been obtained. Neither the father of the wife nor the father of the husband can claim that they were not aware about the wife obtaining divorce. Even otherwise, the agreement entered into with a condition that a particular event may be performed in future becomes redundant if the said event had already been performed. The MoU envisages that the husband should pay Rs.8 lakhs to the wife if the wife obtains divorce. By the date of signing of MoU, the wife had already obtained divorce. I, therefore, consider that the MoU was redundant and was of no force. Even otherwise, I consider that an MoU that the husband should pay some consideration to the wife on the condition that the wife should obtain divorce from the appropriate Court is a contract which is against public policy and cannot be implemented. I, therefore, do not consider that the wife can seek for payment of Rs.8 lakhs from the husband on the basis of MoU.

27. Both the trial Court and the appellate Court did not consider about the validity of the MoU and about the redundancy of the MoU, as the MoU was entered into subsequent to grant of divorce by a competent Foreign Court in favour of the wife. When these factors are taken into consideration together with the question of public policy, I have no hesitation to hold that Ex.P.8-MoU is unenforceable both as redundant as well as opposed to public policy. The wife cannot seek for enforcement of the same. Consequently, the order of the trial Court as confirmed by the appellate Court directing the payment of Rs.8 lakhs in terms of MoU dated 11.05.2007 is bad and is liable to be set aside. As already pointed out, the order of granting compensation at Rs.5 lakhs and the order of granting legal expenses at Rs.20,000/- is perfectly justified and deserves to be confirmed.

However, also please note the Hon. court saying
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".....22. The learned senior counsel for the husband attacked the petition on the ground of absence of territorial jurisdiction. Admittedly, the Act is applicable in India and does not have extra territorial application. It is the contention of the learned senior counsel for the husband that the domestic relationship between the husband and the wife was never in India and that this petition seeking for reliefs under the provisions of DV Act is not maintainable in India. The wife laid DVC No.4 of 2009 on the ground of domestic violence. Domestic Violence has been elaborately defined in Section 3 of DV Act. There was no reference u/s.3 that the conduct of the husband or other relatives would be considered to be domestic violence within the meaning of Section 3 of the Act subject to the condition that the alleged conduct occurred within India only. In the absence of specific provision u/s.3 of the Act that the domestic violence ought to have been committed within India, I consider that any act of domestic violence, whether committed within the territorial jurisdiction of India or outside would nevertheless be a domestic violence within the meaning of Section 3 of DV Act....."




*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Andhra High Court

A.Ashok Vardhan Reddy  Petitioner  

Smt.P. Saritha,and 2 others. Respondents 

Counsel for the petitioner:  Sri Vedula Venkataramana,
                              Senior counsel for petitioner

Counsel for the Respondents: Sri P. Krishna Reddy,
                              Counsel for R-1
                                                                               
Cases referred:
1.2012 CRI.L.J. 309
2.2010 LawSuit (Del) 3145
3.2012 CRI.L.J. 3462
4.2013 CRI.L.J. 3909

HONBLE Dr. JUSTICE K.G. SHANKAR      

Crl.R.C.No.15 of 2014

Date:   15.04.2014


ORDER: 

The revision is laid by the husband of the first respondent challenging the judgment in Criminal Appeal No.151 of 2013 on the file of the Additional Metropolitan Sessions Jude, Cyberabad. The first respondent, who shall be referred to hereinafter as the wife, filed Domestic Violence Case (DVC) No.4 of 2009 before the Judicial Magistrate of First Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad against the petitioner herein (the husband, for short) and the parents of the husband. The wife laid the case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act, for short) read with Rule 6 (1) of the Rules seeking for a protection order and compensation. The trial Judge partly allowed the DVC No.4 of 2009. The husband and the father of the husband, who is the second respondent herein, were directed to pay Rs.8 lakhs to the first respondent herein (wife) along with interest at 12% per annum from 11.05.2007. Compensation at Rs.5 lakhs was awarded, which is payable by the husband within two months from the date of the order.

2. The husband preferred Criminal Appeal No.151 of 2013 before the Additional Metropolitan Sessions Judge, Cyberabad questioning the orders in DVC No.4 of 2009. The parents of the husband in their turn filed Criminal Appeal No.143 of 2013. A common judgment was pronounced by the learned Additional Metropolitan Sessions Judge, Cyberabad dismissing both the criminal appeals. The orders in DVC No.4 of 2009 stood confirmed. Aggrieved by the same, the husband preferred the present revision. Be it noted that the parents of the husband did not prefer any revision.

3. The marriage between the main parties was solemnized on 27.08.2005. On the date of marriage itself, the wife had to leave for United States of America (USA) where she was working and the visa and Green Card regulations required her presence in USA. The husband subsequently joined the wife at USA. The wife and husband had serious differences and failed to see eye-to-eye with each other. The wife complained that the husband was harassing her demanding additional dowry to a tune of Rs.25 lakhs to Rs.30 lakhs. It is also alleged that the wife was physically harassed by the husband in USA such as keeping her inside the house and bolting the door from outside. The wife claimed that she reported the matter to the Department of Public Safety in West Virginia University. The father of the wife also lodged a complaint in Saroornagar Police Station, Hyderabad, India on behalf of his daughter, which was registered as Crime No.1098 of 2006.

4. It is the case of the wife that the wife had no alternative but to seek for divorce. The wife filed a petition on 08.07.2006 in the Family Court, Monongalia County West Virginia University and obtained orders for divorce on 12.03.2007. Inter alia, the wife contends that she reserved her right to claim maintenance and distribution of assets. It is also the claim of the wife that the father of the husband later entered into a Memorandum of Understanding (MoU, for short) with the father of the wife on 11.05.2007 agreeing to pay Rs.8 lakhs, in case the wife consents for divorce and that the amount of Rs.8 lakhs was already deposited before the mediators. The wife complained that the husband and the father of the husband failed to honour their commitment in terms of MoU. Other allegations were also made which are not germane for the purpose of the present case.

5. The husband denied all the allegations of the wife including demanding for additional dowry at Rs.30 lakhs and receipt of Rs.5,25,000/- from the wife and his in-laws.
The parents of the husband contended that the father of the wife forced the father of the husband to enter into an MoU, albeit the wife had already obtained divorce even by the date of MoU. They claimed that they never made any demands for dowry and contended that MoU is unenforceable.

6. The wife examined herself as PW.1 and examined her mother as PW.2. She also examined one of her cousins as PW.3. As against the evidence, the husband examined himself as RW.1. The father of the husband was examined as RW.2. After considering the case, the learned trial Judge ordered the husband to pay compensation of Rs.5 lakhs to the wife and also to pay Rs.20,000/- as legal expenses. It further directed the husband and the father of the husband to pay Rs.8 lakhs covered by MoU to the wife together with interest.

7. As already pointed out, questioning the same, the husband filed an appeal, whereas the parents of the husband filed another appeal. However, both the appeals were dismissed on 06.11.2013.

8. Sri P. Krishna Reddy is said to be the father of the wife. He is an advocate. He laid vakalat on behalf of the wife and conducted the case on behalf of his daughter who is the wife herein.

9. Sri Vedula Venkataramana, learned senior counsel for the petitioner-husband pointed out that Ex.P.8-MoU was entered into between RW.2 and the learned counsel for the wife (as the father of the wife) on 11.05.2007. The MoU contemplates that the husband should pay Rs.8 lakhs to the wife in the event the wife obtained divorce. However, Ex.P.4 copy of the decree of divorce shows that the wife obtained divorce on 12.03.2007 itself, whereas the MoU under Ex.P.8 was after the divorce. One of the terms of MoU is that the wife should obtain divorce as a condition precedent for payment of Rs.8 lakhs by RW.2.

10. The learned senior counsel inter alia submitted that once the matrimonial relationship between the wife and the husband was cut off through divorce, DVC case would not be maintainable. He also contended that there was no domestic relationship between the wife and the husband at any point of time in India, so much so, DV Act, which is applicable to the Indian territories only, is not applicable to the controversy in the present case. He also submitted that the husband and his parents did not commit any domestic violence and that as there was no domestic violence, the wife was not entitled to receive Rs.8 lakhs. Finally, the learned senior counsel for the husband submitted that DV Act did not provide for any compensation, since the very objective of the Act was to sustain domestic relationship.

11. In Inderjit Singh Grewal v. State of Punjab , the wife sought for compensation u/s.12 of DV Act. The wife sought for the custody of minor son, right of residence and restoration of domestic articles. The marriage stood dissolved by the date of the petition. The Supreme Court considered that Section 12 of DV Act would not apply unless the decree for divorce was set aside. In Vijay Verma v. State NCT of Delhi , a learned single Judge of Delhi High Court observed:

6. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase at any point of time, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. ..

On the basis of these two decisions, it is urged by the learned counsel for the husband that the very claim is not maintainable.

12. Sri P. Krishna Reddy, learned counsel for the wife placed reliance upon A. Ashok Vardhan Reddy v. Smt. P. Savitha . When the wife herein filed C.C.No.48 of 2008 on the file of the II Metropolitan Magistrate, Cyberabad at L.B. Nagar against the husband and the parents of the husband, a petition was filed by the husband and his parents seeking for quashment of C.C.No.48 of 2008. After an elaborate judgment, the Criminal Petition was dismissed. As the case was between the same parties, the learned counsel for the wife is placing heavy reliance upon this decision. He pointed out that the Court concluded that the divorced wife is entitled to maintenance under the provisions of DV Act so long as she did not contact another marriage. It was noted that the existence of any jural relationship of man and his wife between the petitioner-husband and the respondent-wife is not a sine qua non for maintaining a domestic violence case. Referring to grant of divorce by a Foreign Court, the Court observed that the cases under the provisions of DV Act would still operate if allegations are made out or otherwise proved.

13. The learned senior counsel for the husband contended that the allegations made by PWs.1 to 3 are bald, sweeping and general. He contended that there was no incidence of physical or mental cruelty.

14. Where divorce was already granted by a Foreign Court and where this revision is not for grant of maintenance as such, I consider that the Court need not go into the question of the merits of this revision. The trial Court and the appellate Court held that the domestic violence is made out. I go by the assumption that the DV Act has been made out. What should be the relief in such an event is the only question.

15. So far as granting of Rs.5 lakhs as compensation is concerned, there is no counter attack from the husband. Similarly, the award of Rs.20,000/- towards legal expenses is also not attacked by the husband. This revision deserves to be dismissed straightaway so far as legal expenses and so far as compensation are concerned.

16. Regarding the amount covered by MoU, the question is whether the wife can seek for an order to direct the husband to abide by terms of the MoU. The MoU was executed by the father of the husband as well as by the father of the wife. Neither the wife nor her husband is a party to the MoU. MoU between the parties with an understanding that the husband should pay some money to the wife and the wife should accept for divorce, I am afraid, is against the public policy. However, the MoU reads as if the husband agreed to pay Rs.8 lakhs to the wife towards the amount paid by the wife to the husband and the amounts spent by the wife towards the husband after their marriage. Such an MoU is sought to be implemented and was ordered to be implemented by the trial Court and confirmed by the appellate Court. The wife or the father of the wife is a party to the MoU perhaps would be entitled to file a suit seeking for specific performance of the MoU. I do not consider that the wife can seek for enforcement of MoU merely on the ground that the MoU was executed.

17. Ex.P.8-MoU recites that Rs.8 lakhs constitutes money paid to the husband by the wife. Regarding the question whether such money can be paid to the wife or not, the learned senior counsel for the wife submitted that the wife cannot seek for recovery of money through DV Act. However, Section 20 of DV Act is wide enough to engulf payment of money covered by the MoU.

18. The learned counsel for the wife tried to show that various provisions of DV Act empower the wife to seek the reliefs. So far as compensation of Rs.5 lakhs is concerned, the wife certainly is entitled to the same. Added to it, the learned counsel for the wife contended that a divorced wife is entitled to seek for reliefs under DV Act. In Ritesh Ratilal Jain v. Sandhya, w/o. Ritesh Jain , the Bombay High Court referred to Section 3 of DV Act in detail and observed that where prima facie case is made out, the petition cannot be questioned. However, the present petition is not for quashment, but for the implementation of MoU under Ex.P.8.

19. So far as MoU is concerned, ordinarily, it should have been a civil case. However, in view of Section 12 read with Section 20 of DV Act, a wife can seek for payment of the amount covered by MoU. The husband was not a party to the MoU. It may be noticed that the MoU was entered into between the father of the husband and the father of the wife on behalf of their respective children. I, therefore, assume that the MoU is unenforceable.

20. The learned senior counsel for the husband referred to domestic relationship within the meaning of DV Act. Section 2 (f) of DV Act defines domestic relationship as a relationship between two persons who have been living or have lived in a shared household, inter alia, through a relationship in the nature of marriage at any point of time. Section 2 (f) reads: domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

21. From the very fact that the relationship between the parties being at any point of time u/s.2 (f) of DV Act, it would appear that the domestic relationship need not be enforced at the time of filing of the petition. The trial Court as well as the appellate Court are consequently justified in entertaining the application, albeit there was a valid divorce between the wife and the husband, having been granted by a Foreign Court on 12.03.2007. The contention of the learned senior counsel for the husband that the jural relationship of man and his wife must be in existence by the date of the petition and by the date of the order therefore is not justified. I have no reason to disagree with the view of the trial Court and the appellate Court that albeit the jural relationship was snapped between the wife and husband, the wife is entitled to file petition seeking for relief under the provisions of the Act.

22. The learned senior counsel for the husband attacked the petition on the ground of absence of territorial jurisdiction
. Admittedly, the Act is applicable in India and does not have extra territorial application. It is the contention of the learned senior counsel for the husband that the domestic relationship between the husband and the wife was never in India and that this petition seeking for reliefs under the provisions of DV Act is not maintainable in India. The wife laid DVC No.4 of 2009 on the ground of domestic violence. Domestic Violence has been elaborately defined in Section 3 of DV Act. There was no reference u/s.3 that the conduct of the husband or other relatives would be considered to be domestic violence within the meaning of Section 3 of the Act subject to the condition that the alleged conduct occurred within India only. In the absence of specific provision u/s.3 of the Act that the domestic violence ought to have been committed within India, I consider that any act of domestic violence, whether committed within the territorial jurisdiction of India or outside would nevertheless be a domestic violence within the meaning of Section 3 of DV Act.

23. In the present case, the wife claimed that she had been harassed and was subjected to domestic violence which was supported by her mother and cousin. The learned counsel for the husband primarily considered that where the domestic violence alleged did not occur in India, the Act has no force. I am afraid that such a contention cannot be accepted. In the absence of contrary evidence and in view of the finding of the trial Court which was confirmed by the appellate Court that the wife was subjected to domestic violence, I am afraid that the finding cannot be interfered with in this revision, as the finding does not appear to suffer from perversion or any infirmity.

24. Be that as it may, the concrete question in this revision is whether an order can be passed for payment of Rs.8 lakhs covered by MoU. The learned senior counsel for the husband did not deal with the order of payment of compensation at Rs.5 lakhs and legal expenses at Rs.20,000/-, but emphatically questioned the direction of payment of Rs.8 lakhs covered by MoU.

25. There is no proof from the evidence of PWs.1 to 3 that they have spent Rs.8 lakhs over the husband which is liable to be returned by the husband. The Rs.8 lakhs referred to is only on the basis of MoU. The learned counsel for the wife also insisted upon the payment of Rs.8 lakhs which is covered by MoU.

26. The MoU was executed after the wife obtained divorce. Clause (2) of MoU reads that the money of Rs.8 lakhs should be paid to the wife after the wife obtains valid divorce. Admittedly, by the date of MoU, divorce has already been obtained. Neither the father of the wife nor the father of the husband can claim that they were not aware about the wife obtaining divorce. Even otherwise, the agreement entered into with a condition that a particular event may be performed in future becomes redundant if the said event had already been performed. The MoU envisages that the husband should pay Rs.8 lakhs to the wife if the wife obtains divorce. By the date of signing of MoU, the wife had already obtained divorce. I, therefore, consider that the MoU was redundant and was of no force. Even otherwise, I consider that an MoU that the husband should pay some consideration to the wife on the condition that the wife should obtain divorce from the appropriate Court is a contract which is against public policy and cannot be implemented. I, therefore, do not consider that the wife can seek for payment of Rs.8 lakhs from the husband on the basis of MoU.

27. Both the trial Court and the appellate Court did not consider about the validity of the MoU and about the redundancy of the MoU, as the MoU was entered into subsequent to grant of divorce by a competent Foreign Court in favour of the wife. When these factors are taken into consideration together with the question of public policy, I have no hesitation to hold that Ex.P.8-MoU is unenforceable both as redundant as well as opposed to public policy. The wife cannot seek for enforcement of the same. Consequently, the order of the trial Court as confirmed by the appellate Court directing the payment of Rs.8 lakhs in terms of MoU dated 11.05.2007 is bad and is liable to be set aside. As already pointed out, the order of granting compensation at Rs.5 lakhs and the order of granting legal expenses at Rs.20,000/- is perfectly justified and deserves to be confirmed.


28. Accordingly, the Criminal Revision Case is allowed in part. The order of the trial Court as confirmed by the appellate Court regarding payment of compensation at Rs.5 lakhs and legal expenses at Rs.20,000/- are confirmed. The order of the trial Court as confirmed by the appellate Court for payment of Rs.8 lakhs by the husband to the wife is set aside, as the MoU is found to be redundant and against public policy. Miscellaneous Petitions, if any pending in this revision shall stand closed.


K.G. SHANKAR, J

Date: 15.04.2013





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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist