• Regarding breach of agreement in MCD 13b

Wife had lodged 498a, 406,323,506,511,125, dv on me and my family members. I lodged 323, 324 on wife, her brother, her mother, 2 of her mamas, 2 of her mausis, 1 maami, 1 cousin. All this lodged under complaint case 200 crpc. Wife and her family members got stay on procedings from Punjab and Haryana High court. We challanged stay orders to get them vacated. During these proceedings, case was sent for mediation. Mediation terms were MCD at zero alimony. Wife agreed. Now tell me if wife breaches her agreement, what can I do. Can I again open the case of 323, 324 against them at later stages
Asked 6 years ago in Family Law
Religion: Hindu

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13 Answers

You have to understand some basics of law othereise it would seem to you thing are going wrong or in violation of law. 

Mutual consent by itself depends on mutuality which in some cases with long passage of time loses it's strength.

Court does not like to have someone without any legal remedies .So whenever such cases come to court for settlement , Court generally prefers to review the situation and present circumstances and order accordingly to fulfill the gap if any. 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

- As per law, Divorce by mutual consent is final and binding , and thus cannot be challenged in any Court by either of the parties .

- The basis of such divorce is mutual consent and since both parties consented to the divorce, they cannot breach the agreement and decisions.

- Hence, before the mutual divorce decree , both parties will withdraw their case , and quash the FIR . 

- Therefore, the Decree granted under the mutual consent , and based agreement is final & unchallengeable by your wife, 

- Even, if she will try to breach the agreement , and decision of the case, then it will be considered as Contempt of the court. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

If wife fails to comply with consent terms and withdraws her consent take out contempt of court proceedings against wife 

 

you cannot reopen cases withdrawn by you 

Ajay Sethi
Advocate, Mumbai
99790 Answers
8147 Consultations

See if the FIR is quashed on ground of mediation and then if wife fails to honor same you may approach high court to reconsider case though in case FIR/complaint is once quashed you cannot file FIR again  on same cause of action.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

1. There is no punitive actions to be taken if the terms of mediation is failed.

2. So both the parties will have to rely upon the terms of settlement and in default the loss to the both parties.

3. The case once closed in terms of the settlement cna not be revived though there is no legal bar to file a fresh case.

Devajyoti Barman
Advocate, Kolkata
23655 Answers
537 Consultations

If all terms and conditions are mentioned in the MCD than no need to worry about it and reopen the case which was closed on mediation ground of MCD.

 

Have you signed MOU of MCD.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

If your wife beaches the condition then you can proceed with the contested divorce case on the grounds of cruelty.

If the criminal complaints filed by both the sides  have been closed then it cannot be reopened for this reason.

 

T Kalaiselvan
Advocate, Vellore
89992 Answers
2495 Consultations

Since MCD is withtou any alimony, she can withdraw her consent before final order passed.

If MCD is reached on the condition to withdraw complaint filed by you than you can file contempt petition agasint  her.

Criminal case can re open by order of HC only.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

The offence has taken place that is why you lodged the FIR. Now as the divorce has been agreed upon you both are taking back the cases. The case can be revived if you want.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

When this happens they will sue not only for the original disagreement, but also for breach of contract.. 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

If wife breach the agreement then you cannot reopen the case once withdrawn.

So it will be better if you withdraw the case after first motion of divorce petition.

 

 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

Dear Sir,

The following judgments may kindly be read:

Breach of mediation agreement contempt of court 

 

 

In Avneesh Sood vs Tithi Sood on 30 April, 2012 [1]
,
Shikha Bhatia (supra) the wife had filed an FIR against the husband.
The husband filed the anticipatory bail application and during pendency
of that petition, a settlement was reached between the parties to
the effect that the parties will seek divorce by mutual consent, and
husband will pay 8 lakhs to the wife at different stages and all the
pending cases between the parties will be withdrawn by both the parties.
Acting on that settlement the anticipatory bail was granted to the
husband and he also paid certain amount to the wife. Thereafter the
husband did not comply with the terms of the settlement and the Court
held him guilty of contempt of Court. The Court observed:
"The respondents once having taken the advantage of the agreement entered
into the terms of the settlement cannot CONT.CAS (C) 559/2011 Page
23 of 34 be withdrawn by the respondents to suit his whims and fancies
and to the determent of the petitioner."
In Avneesh Sood vs Tithi Sood on 30 April, 2012 [1]
,


In Hitesh Bhatnagar (supra), both husband and wife had filed mutual
divorce petition. After the passing of the first motion petition the
wife withdrew her consent before the decree of divorce could be granted.
The husband insisted for passing of the decree and the matter travelled
up to Supreme Court. The Supreme Court framed the following question
to be determined "Whether the Court can grant a decree of divorce
by mutual consent when the consent has been withdrawn by one of the
parties, and if so, under what circumstances".
43. The Court answered the above mentioned question in the following
words:-
CONT.CAS (C) 559/2011 Page 21 of 34
"15)......... Besides, from the language of the Section, as well as
the settled law, it is clear that one of the parties may withdraw their
consent at any time before the passing of the decree. The most important
requirement for a grant of a divorce by mutual consent is free
consent of both the parties. In other words, unless there is a complete
agreement between husband and wife for the dissolution of the marriage
and unless the Court is completely satisfied, it cannot grant a
decree for divorce by mutual consent. Otherwise, in our view, the expression
divorce by mutual consent would be otiose.
16) In the present fact scenario, the second motion was never made by
both the parties as is a mandatory requirement of the law, and as has
been already stated, no Court can pass a decree of divorce in the
absence of that. The non-withdrawal of consent before the expiry of the
said eighteen months has no bearing. We are of the view that the eighteen
month period was specified only to ensure quick disposal of cases
of divorce by mutual consent, and not to specify the time period
for withdrawal of consent, as canvassed by the appellant."
44. In neither of these cases the Supreme Court was dealing with the
issue, whether the breach of an undertaking given to the Court in terms
of a settlement arrived at between the parties, to grant consent for
the second motion petition, would amount to civil contempt, or not
. A party is not bound at the stage of moving the first motion petition
to give an undertaking to the Court that he/she shall grant his/her
consent for moving a second motion petition as well. The law gives
both the spouses the right to opt out of the divorce proceedings, and
not to give their respective consent to proceed with the second motion.
In the present case as well, it was open to the respondent not to
have given her undertaking to the Court, that she would give her consent
to CONT.CAS (C) 559/2011 Page 22 of 34 move the second motion petition.
However she did, as a matter of fact, give her undertaking to
the Court to this effect. She gave this undertaking on account of heContempt
Indian Kanoon 1
r settlement with the petitioner wherein she received a substantial amount
of Rs.1.5 crores from out of the total settlement amount of Rs.
7 crores. Had she not agreed to give the said undertaking and, in fact,
not given the said undertaking to the Court, obviously the settlement
agreement would not have been acted upon by the petitioner and he
would not have paid the said amount to the respondent which she accepted,
pocketed and appropriated.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
,
For holding the respondents to have committed contempt, civil contempt
at that, it has to be shown that there has been willful disobedience
of the judgment or order of the Court. Power to punish for contempt
is to be resorted to when there is clear violation of the Court's order.
Since notice of contempt and punishment for contempt is of far reaching
consequence, these powers should be invoked only when a clear
case of willful disobedience of the court's order has been made out.
Whether disobedience is willful in a particular case depends on the
facts and circumstances of that case. Judicial orders are to be properly
understood and complied. Even negligence and carelessness can amount
to disobedience particularly when attention of the person is drawn
to the Court's orders and its implication. Disobedience of Court's
order strikes at the very root of rule of law on which our system of
governance is based. Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to prevent perversion
of the course of justice. In his famous passage, Lord Diplock
in Attorney General v. Times Newspapers Ltd. (1973) 3 All.E.R. 54
said that there is also "an element of public policy in punishing civil
contempt, since administration of justice would be undermined if the
order of any court of law could be disregarded with impunity". Jurisdiction
to punish for contempt exists to provide ultimate sanction
against the person who refuses to comply with the order of the court
or disregards the order continuously. Initiation of contempt proceedings
is not a substitute for execution proceedings though at times that
purpose may also be achieved.
No person can defy Court's order. Wilful would exclude casual, accidental
bona fide or unintentional acts or genuine inability to comply
with the terms of the order. A petitioner who complains breach of Court's
order must allege deliberate or contumacious disobedience of the
Court's order.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
,
Rama Narang Vs. Ramesh Narang & Anr., reported at (2006) 11 SCC 114,
it has been held by the Supreme Court of India that even in the absence
of undertaking in appropriate cases, defiance even of a compromise
decree may be contemptuous if the conduct is found to be interfering
in the due course of justice. It has also been held in the case of Santanu
Chaudhuri Vs. Subir Ghose, reported at (2007) 10 SCC 114 that
even without an undertaking a contempt may be made out when the Court
has acted on the basis of a representation of a party. In this case
not only the order dated 23.10.2007 read with orders dated 8.1.2008 and
15.2.2008 would show that the Court had disposed of the bail petitioners
on the basis of a settlement between the parties. A complete reading
of the order would show that the parties were bound to comply
with the obligation as per the settlement.
References
1. a, b Avneesh Sood vs Tithi Sood on 30 April, 2012
2. a, b Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010

 

Netravathi Kalaskar
Advocate, Bengaluru
4951 Answers
27 Consultations

You can go for contempt of court if she breaches the term

Prashant Nayak
Advocate, Mumbai
34526 Answers
249 Consultations

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