31 January 2013
In a petition u/s 9 of HMA 1955 filed by husband, the respondent wife on the very 1st date of her appearance compromised with her husband, and filed a written compromise Exhibit c-1, in the court as well as got recorded her statement to the effect that she is ready and willing to join the company of petitioner husband...in these circumstances on the basis of compromise petitioner withdrew his petition. But since the day of compromise she never turn up to join the company of her husband.. Now my query is::--1. Whether a compromise between the parties (when the petition has been dismissed as withdrawn) is executable as a decree or otherwise by the help of the court.. If yes please refer any judgment in this regard........2. Or in alternative should petitioner again file a similar petition...
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.
Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 1984 Equivalent citations: 1984 AIR 1562, 1985 SCR (1) 303 Bench: Mukharji, Sabyasachi
02 February 2013
I do not understand what was wrong with you. If you make mistakes inspite of having an up-to-date counsel working for you it is presumed that you neglected counsel's advice,and did whatever you were able to think at best. I do not know in such cases any litigant can have better position. Yet it is not a electric switch off/on process. It is a suit wherein significant issues of life - even whole life involved how such ridiculous act was done. However though I do not need saying above words for specific answer to your question yet I think this dictum is part of opinion and solution to be more effective, what you can do? Do as per law, but do as per advice of advocate, do not decide yourself. Now-- what you had for option you lost-- but if you wish you can follow - if the compromise was given a shape of mutual agreement? That you relied your wife's terms passed before the court with permission and adjudication by it and your wife did not keep promise she did before court and you withdrew petition as consideration, you can file for damages for willfully and intentionally caused injury by your wife, and also she abused the process of law to play fraud upon a litigant; law cannot be used to cheat in law as granted. Such acts also attracts Contempt Jurisdiction; you may approach High Court. Was the petition filed? If so there should be case record in which it was filed. A case withdrawn leads all ineffective and null;an independent agreement not effected by condition of suit could help you.Generally when no judgement is passed on merit further suit can be instituted. In your case there is nothing recorded as judgement or case was not decided. Fresh suit not barred; but you better take Mutual Divorce- contest will be a lengthy process. Is your wife earning? circumstances can be shaped so as to make your wife choose mutual divorce rather than paying to you.You proceeded in a way completely wrong procedure. to tell a bit more I refer issue of execution, attachment of movable and bank deposit also can compensate the execution; civil prison is another option if former is defaulted or not possible (O21 r32 of CPC.)
03 February 2013
once the compromise is violated then your petition may need to be reopen for the relief-either for divorce or judicial separation. but shall not for the restitution of conjugal rights....