Tuesday, May 23, 2023

EFFECT OF TERMS OF SETTLEMENT IN MATRIMONIAL DISPUTES

 


EFFECT OF TERMS OF SETTLEMENT IN MATRIMONIAL DISPUTES

This is a common knowledge that matrimonial disputes substantially filled up the court’s dockets. However, it is also true that a large number of cases or complaints are settled in the course of court proceedings. The matrimonial cases are emanating from Hindu Marriage Act 1955 (HMA), Hindu Adoption and Maintenance Act, 1956 (HAMA) Guardian & Wards Act, 1890 (GAWA), Family Courts Act, 1984, Section 125 of Cr.P.C, Section 498-A of Indian Penal Code, Domestic Violence Act 2005 etc. Thus, when the cases are settled in the course of proceedings and also in mediation, it is imperative to calibrate the dispute and specify the particulars adequately, such as ,number of complaints/cases pending and the parties in each of the case or complaint and exact terms qua each of them in settlement. The inadequate wording of Terms of settlement continues to relegate the parties to suffer the peril.

The hon’ble Delhi High Court has dealt with the cascading effect of inadvertent omission or inadequate drafting of terms of settlement in mediation in matrimonial disputes and hence, the hon’ble Delhi High Court has laid down certain guidelines to set right the anomaly and consequent hardship on such parties to the lis.  It is also observed that after settlement the cases and cross cases are withdrawn between the parties or even after the F.I.Rs are also quashed, the cases or complaints does not culminate contrary to the intention of parties. This is attributed to inadequate and incomplete depiction of facts and incomplete reflection of issues resolved between the parties. The terms of settlement has pivotal role and inadvertent omission in the terms of settlement may have far reaching impact which is beyond the anticipation of a party or parties. Faced with such a peculiar situation, in the context of above, the Delhi high Court has laid down guideline for drafting of terms of settlement in matrimonial disputes, more particularly, in mediation proceedings while adjudicating the matter captioned as CHHATTER PAL & ORS versus STATE & ANR[1] while adjudicating the matter captioned as above.



FACTUAL MATRIX OF CHHATTER PAL CASE

The  hon’ble Delhi High had found upon a close perusal and scrutiny of the records of above case that the matter had been referred for mediation at the time of hearing of anticipatory bail application of the husband of the complainant, when rest of the accused persons were not even present before the Court concerned and the accused/husband had appeared on behalf of other respondents also before the Mediator, as they were his close family members and were primarily facing criminal action due to his matrimonial discord with the complainant. In view of the settlement arrived at between the parties, the husband was admitted to anticipatory bail. Having compromised the matter with his wife, the husband had also filed the petition for quashing of FIR and by that point of time, charge sheet had not been filed by the prosecution. Thereafter, because the matter had been compromised between the parties, the relatives of the husband were kept in column no. 11 in the charge sheet i.e. they were charge sheeted without arrest.

Since the matter had already been settled, the learned Magistrate, pursuant to filing of the charge sheet, had taken cognizance of the offence only against the husband, and had neither taken cognizance nor had issued summons to rest of the family members. It was also mentioned that cognizance qua other accused persons would be taken only if the accused husband fails to take any steps with regard to filing of quashing petition.

Thus, the husband alone had been summoned to appear before the Court, only the husband would have deemed it appropriate to file the quashing petition since the impression was that the FIR was filed solely against him. Subsequently, when the FIR was quashed specifically in relation to him by the high court, the learned Magistrate was pleased to issue court notice to other accused persons. It was only after the rest of the accused persons were summoned by the learned Magistrate that they realized the need to file a petition for quashing of the FIR. It is quite plausible that the other accused persons might have assumed that they did not have to file a quashing petition since they had not been earlier summoned by the learned Magistrate.

In order to appreciate the timeline of the case, it may be noted that at the time of hearing of anticipatory bail application filed by the husband pursuant to registration of present FIR, the case had been referred for mediation by the Court concerned and thereafter, the matter had been settled. Thus, after the FIR was quashed in relation to the husband as cognizance had only been taken against him by the learned Magistrate, the other family members may have been oblivious to the fact that they could have been summoned by the Court and the matter, which had been resolved amicably long back may be prolonged for another 10 years.

The complainant sought to reap advantage of the situation and when quashing petition was preferred by other accused persons, the complainant appeared before the high court and stated that the Mediated Settlement Agreement was only between her and her husband. She also stated that the monetary settlement arrived at between the parties was also qua the husband only and matter may again be sent for mediation if the present petitioners also wanted the FIR to be quashed against them.

The high court while deprecating the approach of the complainant had observed that it is neither correct nor acceptable, as she has already received the entire amount as per the settlement agreement towards settlement of all her claims and matrimonial disputes as well as for quashing of present FIR and if it is held that the settlement was arrived solely between the wife/complainant and the husband, it would undermine the fundamental objective of the process of mediation in this case. It is further observed by the high court that suffice it to say, the very purpose of mediation in this case has already been defeated as legal proceedings have been prolonged and dragged on for 10 long years despite a successful mediation between the parties.

The high court relied upon the observations of the Hon’ble Apex Court in case of Ruchi Agarwal v. Amit Kumar Agrawal [2]wherein the Apex Court while quashing the criminal proceedings against the accused husband on the basis of compromise even though the complainant had refused to give her consent, had observed as under:

“6. From the above narrated facts, it is clear that in the compromise petition filed before the Family Court, the appellant admitted that she has received Stridhan and maintenance in lump sum and that she will not be entitled to maintenance of any kind in future. She also undertook to withdraw all proceedings civil and criminal filed and initiated by her against the respondents within one month of the compromise deed which included the complaint under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of Dowry Prohibition Act from which complaint this appeal arises. In the said compromise, the respondent- husband agreed to withdraw his petition filed under Section 9 of the Hindu Marriage Act pending before the Senior Judge, Civil Division, Rampur and also agreed to give a consent divorce as sought for by the appellant.

7. It is based on the said compromise the appellant obtained a divorce as desired by her under Section 13(B) of the Hindu Marriage Act and in partial compliance of the terms of the compromise she withdrew the criminal case filed under Section 125 of the Criminal Procedure Code but for reasons better known to her she did not withdraw that complaint from which this appeal arises. That apart after the order of the High Court quashing the said complaint on the ground of territorial jurisdiction, she has chosen to file this appeal. It is in this background; we will have to appreciate the merits of this appeal.

8. .... Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.

9. In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue. Therefore, we are of the considered opinion to do complete justice, we should while dismissing this appeal also quash proceedings arising from the Criminal Case No.Cr.No.224/2003 registered in Police Station, Bilaspur, (Distt.Rampur) filed under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein...”

 

It is also noted by the hon’ble Delhi High Court that in another matter, reported as Purshotam Gupta v. State[3], while dealing with a situation wherein the complainant wife had refused to appear before the Court for quashing of FIR after having received all the settlement amount and after divorce proceedings had been concluded, the Delhi High Court had also quashed the FIR against the accused husband with the following observations:

“13. This court cannot but accept the statements made on oath by Respondent No. 2 accepting the terms of the compromise and recorded by and forming part of the record of the Punjab and Haryana High Court. She has also accepted the sum of Rs. 4 lakhs in terms of the compromise. The divorce has been granted and the criminal case for maintenance stands withdrawn. Only the last bit regarding the quashing of the criminal proceedings under Sections 498A, 406/34 IPC remains. With the Respondent No. 2 not appearing in these proceedings to contest the petition, the assertions of the petitioners as noted hereinabove remain uncontroverted.

14. This Court is therefore inclined to follow the aforementioned two decisions of the Supreme Court in Ruchi Agarwal and Mohd. Shamim and quash the pending criminal proceedings against the petitioners. It may be mentioned that the learned APP for the State also does not dispute the facts stated in the petition or the law as settled by the Supreme Court. He expresses no objection the quashing of the FIR in view of the aforesaid developments.

15. Consequently the FIR No. 575 of 2002 registered in Police Station Rajouri Garden, New Delhi on 26th July 2002 under Sections 498A, 406/34 IPC and all proceedings consequent thereto hereby stand quashed. The petition is allowed but with no order as to costs.”

 

A similar view was also taken by the Delhi High Court in Dalbir Singh v. State[4].

In Chhatter Pal (Supra) the High court has noted that in cases relating to matrimonial offences, at times, there are distant relatives, old parents, married sisters, etc. who are also involved and arraigned as accused, but they may not attend the mediation proceedings as the same generally will take place between the two key players i.e. the husband and wife. In such cases, the disputes are often settled on behalf of the entire family by the husband. The mediator while drafting an agreement must remember that the parties have come to an understanding and have reached a mediated settlement with willingness to resolve the disputes due to the skills of the mediator and help of family, friends, counsels etc., however, their own needs and protection of their interests remains paramount”.

As the primary objective of mediation in matrimonial cases is to facilitate early resolution of disputes outside the Courts. In India, matrimonial disputes often include criminal proceedings. In case of comprehensive settlement agreements between the parties, especially when law mandates mediation in cases of family and matrimonial disputes, a number of issues should be considered and the settlement agreements arrived at from successful mediation must be drafted with due care and caution, so that the very purpose of mediation is not defeated.



OBLIGATION OF MEDIATOR

The High Court has observed in Chatter Pal (Supra) that Mediator is obligated to specifically mention in the settlement that the FIR as well as all proceedings emanating there from were to be quashed qua all the accused persons, along with their names, in that case, even if the learned Magistrate was to decide on issuance of summons to the accused persons, the said Agreement drafted by the Mediator would have come to the rescue of the present petitioners. In such a situation, the complainant would have been bound to co-operate even in those proceedings which emanated from the same FIR. In other words, the Mediated Settlement Agreement in the present case should have been more explicit, particularly in terms of clearly identifying and specifying the names of all the respondents referred to in the agreement.

The Mediator should have ensured that all the persons against whom allegations had been levelled and were named in the FIR, quashing of which was agreed between the parties, their names and identities were clearly spelt out in the Settlement Agreement, rather than using the general term ‘respondents’.

The Guideline laid down in Chatter Pal Case (Supra), in the above backdrop and as per the following:

CONCERN AND DUTY OF THE COURT

 

The High Court had noted that the dispute in question has arisen primarily due to an inadequately worded and ambiguous Mediated Settlement Agreement. In the process of mediation, the task of drafting an agreement at the culmination of long, arduous and challenging mediation proceedings carries significant responsibility. Each word included in the agreement holds importance for the parties involved. This is particularly crucial in cases involving criminal matters, as omission of even a single word can lead to severe legal ramifications and the interested parties can exploit such loopholes to their advantage, causing disadvantages to the opposing party.

The Delhi High Court has thus observed in para 37 of Chhatter Pal (Supra)

“Therefore, as gathered by this Court after going through entire records, lack of incorporation of specific names of the respondents, or persons named in the FIR, in the Settlement Agreement has put the parties concerned at disadvantage and has resulted in unwanted prolonging of criminal proceedings, which were already settled between them long back. The very purpose of resolving the dispute at the earliest has been successfully defeated in the present case despite a successful mediation due to a carelessly worded Mediated Settlement Agreement”.

Though, there is no denying the fact that each case that reaches mediation and successfully culminates into a settlement is based on its own circumstances and dynamics. However, an inadequately drafted agreement will be the one which fails to include essential elements such as the name of all the relevant parties, the terms outlining the conditions of settlement, and the consequences in the event of non-compliance or breach.

The decision rendered by Hon’ble Division Bench of this Court in Rajat Gupta v. Rupali Gupta[5], also contained four questions of law that had been sent for consideration by way of reference, and the Court had laid down detailed guidelines regarding drawing up petitions and agreements in cases filed for divorce by mutual consent.

The mediation process involving family disputes, albeit, is no more in its infancy in India. However, considering the problems that arise in such disputes, it is still evolving and trying to grapple with new problems which may arise on several grounds. While there can be no fixed pattern for preparing an agreement or a performa to fill in for the purpose of affecting a settlement before a mediator, the mediators dealing especially with matrimonial disputes should keep in mind that such agreements are reached with an intent to attain finality to all the disputes. In matrimonial disputes, the parties in majority of cases want the disputes to be settled at the earliest while the emotions and tempers run high. While the Mediator performs the duty of not only dealing with those tempers but also their disagreements and emotions, the mediator also has another responsibility to ensure that the agreement reached by the parties, as well as the hard work of the parties, their families, counsels and the Mediator, is crystalised. It is unfortunate to note that these attempts fail in a large number of cases, and the parties find themselves in conflict once again due to flaws or ambiguities in the settlement agreements.

GUIDELINES

In relation to drafting of a Mediated Settlement Agreement:

      i.          Specify Names of Parties: The agreement must specifically contain names of all the parties to the agreement.

    ii.          Avoid Ambiguous Terms: The terms such as ‘respondent’, ‘respondents’, ‘petitioner’ or ‘petitioners’, in absence of their names in the agreement must be avoided in an agreement as it leads to ambiguities and further litigation.

  iii.          Include All Details: The terms and conditions of the agreement reached between the parties, howsoever small and minute they may be, must be incorporated in the agreement.

  iv.          Timeline For Compliance: The timeline of the fulfilment of terms and conditions as well as their execution must be clearly mentioned. There should be no tentative dates as far as possible.

    v.          Default Clause: A default clause should be incorporated in the agreement and the consequences thereof should be explained and enlisted in the agreement itself.

  vi.          Mode of Payment: In case any payment is to be made as per settlement, the agreement should specify the method of payment agreed upon between the parties which should also be as per their convenience i.e. electronic mode, by way of a Demand Draft or FDR and the necessary details for fulfilment of this condition.                  

vii.          Follow-Up Documents: The agreement should also stipulate as to which Follow-up documents are to be prepared and signed by which party. It may also be mentioned as to when, where, how and at whose cost such documents are to be prepared in furtherance of the terms of the agreement, as far as possible.

viii.          Cases involving 498A IPC: Further, especially in cases of matrimonial disputes, where one of the conditions in the Agreement is to cooperate in quashing of FIR, such as those under Section 498A IPC, and filing of affidavit and appearing in the Court for the purpose of the same, it is advisable that the agreement must stipulate the names of all the parties concerned who have been named in the FIR specifically and the fact that the claims have been settled in totality for quashing of entire FIR and proceedings emanating therefrom qua all persons named in the FIR. It be also clarified specifically that the FIR will be quashed in totality against all the persons arrested, not arrested, chargesheeted, not chargesheeted, with their names and whether the entire FIR will be quashed against all of them upon payment by husband or any other person on behalf of the husband.

   ix.          Criminal Complaints/Cross-cases: Criminal Complaints filed by parties against each other, pending trial or investigation should also find specific mention with names of all the parties, the Court concerned, and as to how the parties intend to deal with them. The number/details of the complaint, FIR, Sections under which they have been filed, should also be mentioned specifically.

     x.          Read and Understood: The agreement should necessarily mention that all the parties have read and understood the contents of the settlement agreement in their vernacular language.

   xi.          Signing of Agreement: In case only one or some parties are present during mediation proceedings and only their signatures are obtained on the agreement, it be clearly mentioned and clarified that the agreement is being signed on behalf of those relatives or parties also even in case they are not present, in case the agreement is qua them too and they are not present in person due to age, ailment, distance or any other reason. It is important to do so since in matrimonial offences, the near and distant relatives may, due to above reasons, not be present in person but agreements are reached in totality, especially regarding quashing of FIRs and criminal proceedings and withdrawal of complaints

 xii.          Clarity of Language: At last, the language used in a settlement agreement must be definite enough to understandJudicial Realism: Urgent Need to have Settlement Agreements in Hindi There is an urgent need to ensure that the agreement drafted to settle the issues to bring an end to a future or pending lis does not itself become a matter of dispute giving rise to another lis between the parties. The common understanding of the parties on essential conditions for enforceability of an agreement is crucial in a mediated settlement agreement and expressing intentions and commitments to the agreement through clear and concise language is critical for its effective enforcement. But a mediator should bear in mind that the level of understanding of the parties concerned may vary according to their social backgrounds, and thus, the mediator should remain attentive and alert to the circumstances, capacity, and linguistic abilities of the parties involved, considering their backgrounds and language proficiency. Since mediated settlement agreements are usually drafted in English, it is important to carefully draft and ensure that the parties concerned comprehend the agreement in vernacular language as this can significantly impact its effectiveness and execution.

The High Court has also opined that as the majority of litigants who approach the High Court and the Courts below speak Hindi as their first language and given that Hindi is their mother tongue, they are far more adept at speaking and understanding it than they are at other languages such as English. However, the mediated settlement agreements in Delhi are drafted only in English. In such a scenario, the Settlement Agreement and the conditions thereof may not always be adequately clear to the parties and at times, the translation from English to Hindi may not convey exactly what the parties intend to do. It can be noted that as per directions of the Central Government, a Hindi Department has been constituted in every Court and Hindi Committee is also constituted in every Court complex. The project of translation of the judgments from English to Hindi is already successfully working under guidance of Hon'ble Apex Court.Thus, the following directions are also issued by the High Court in Chhatter Pal (Supra):

                          i.          Preparation of Mediated Settlement Agreements in Hindi

46. It is, therefore, directed that concerned In-charge of Mediation Centres will ensure that the mediated settlement agreements are prepared in Hindi language also, in addition to English language, as far as possible. It is being directed since in majority of cases, the parties do not comprehend English and their spoken language and mother tongue is Hindi. However, in cases the parties are well-versed in English language and want the agreement to be in English language only, there will be no such insistence or requirement.

47. This Court hopes that once the agreements are written in Hindi, wherever required, which the parties understand and the Mediator performs his/her duty carefully, it will ensure not only finality of agreements in the mediation centers but also its successful culmination in the Courts of law which is the aim and objective of mediation centers.

48. Also because the aim of mediation is to reduce or resolve litigation and not to escalate it, it would be apt to ask both the parties to bring their agreements in their own language even in skeletal form, which can help the mediator to ensure that none of the conditions is left out while preparing the final draft or agreement.

The above guidelines are in addition to Rajat Gupta v. Rupali Gupta (supra) passed by Hon’ble Division Bench of this Court in this regard.

52. In cases of matrimonial disputes and proceedings of divorce, both the parties go through one of the most stressful phases of their lives. In cases such as the present one, where the matter was settled at an early stage and the parties were able to reach the final agreement, the mediator should also be careful of the future consequences of the agreement that the parties were arriving at, and the fact that fulfilment of one condition leads to another and in matrimonial cases, fulfilment of each condition and successful culmination and execution of such an agreement can make or break many lives.

53. When a Court is faced with a situation as the present one, it is left with no other option but to look at the circumstances in which the agreement was negotiated and executed and also peruse the records to find the original objective which the parties were seeking to achieve as well as the original intention exhibited by subsequent substantial compliance with the terms of the mediated settlement agreement. The complainant, who is now seeking to persuade this Court to believe that she had not agreed to settle the case with rest of the accused persons i.e. petitioners herein though she has already obtained a mutual consent divorce and has received the entire amount for quashing of the FIR, had to bring before this Court the reasons and circumstances which reflect that she can make significant departure from the settlement agreement.

           

                                CONCLUSION

In a case like the present one, the significance of terms of settlement could be understood. If in a mechanical manner, the terms of settlement are recorded out of court or in mediation proceedings, the same shall be fraught with severe consequences. As is noted in Chhatter Pal (Supra) that though, in essence, the settlement was arrived at between the parties and that was a full and final settlement, still, since the particulars of parties and its applicability was not adequately reflected therein, thus, the other relatives named in the F.I.R had to rise from the slumber to discover after years that F.I.R is ongoing against them. Though, as per the terms of settlement, by implication it could have been inferred that the disputes qua all parties were settled, still, for want of clear depiction and emphasis the case against other accused i.e relatives of husband who had no direct role in the F.I.R had to face the trial, it was not meant to be, though. Ironically, whereas the F.I.R qua the husband was quashed pursuant to settlement, but as the F.I.R contained names of other accused i.e in-laws of wife and since charge sheet was filed in due course, therefore, the proceedings qua the other relative had continued. The High Court was thus appalled to see the ordeal of other relatives, who in all fairness should have been dropped from the proceedings after settlement. The ambiguous words of terms of settlement however had to offer something quite different and therefore, the necessity of the guideline was felt as narrated above..                          

                                                -----------

                                                Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com



[1]NEUTRAL CITATION NO. 2023: DHC:3396 (CRL.M.C. 6197/2019).

[2](2005) 3 SCC 299,

[3]Crl.M.C. 3230-32/2006

[4]2011 SCC OnLine Del 3528

[5]2018 SCC OnLine Del 9005

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