Manali Singhal & Anr vs Ravi Singhal & Others
1998 Latest Caselaw 865 Del

ORDER

Mohd. Shamim, J.

1. "Marriage is one long conversation, chequered by disputes" said so Robert L. Stevenson. It may or may not be the whole truth but there is no gainsaying the fact that it has got a grain of truth in it as is manifest from the facts of the present case.

2. Plaintiff No.1 herein and the defendant No.1 were married on 10th February, 1989. Plaintiff No.2 was born on 18th March, 1991. She is six years of age. Plaintiffs and the defendant No.1 used to live at their matrimonial home i.e. 24, O1 of, Palme Marg, Vasant Vihar, New Delhi till November, 1994. Defendants nos. 2 and 3 are the father and mother of defendant No.1. Defendant No.4 is the HUF with defendant No.2 as the Manager thereof. The plaintiffs are also the members of the Hindu Undivided Family.

3. Plaintiff No.1 took her mother in 1994 abroad in connection with her treatment. She returned with her ailing mother on 31st October, 1994. Defendant No.1 met her at the Airport and apprised her of the fact that he had already moved out of his family home referred to above and he did not want to live with her any more. Defendant No.1 thus deserted the Plaintiff. Consequently, in view of the above changed circumstances, plaintiff No.1 alongwith her daughter i.e. plaintiff No.2 was forced to shift to the house of her parents. The mother of plaintiff No.1 died on 10th November, 1994. In the above circumstances a family settlement was arrived at in between the parties to the present proceedings on 4th November, 1994 with a view to providing financial assistance to the plaintiff vide Annexure-A. The defendants have wilfully and deliberately defaulted in performing their part of obligation under the said settlement and in making the payments as agreed to in between the parties and to provide for the plaintiffs. The defendants have failed to provide the monthly maintenance to the plaintiff in terms of the said settlement from January, 1997 onwards. They have also defaulted in paying the school fees of the plaintiff No.2. The plaintiffs are being put to a lot of inconvenience and hardships on account of defaults made by the defendants. Plaintiff No.1 is a young lawyer and is working for a law firm. She is being supported by her father. Whereas plaintiff No.2 has got almost none to support her. Hence arose the necessity for the presentation of the application under disposal under Section 151 of the Code of Civil Procedure for maintenance, being I.A. No. 11261/97.

4. The defendants have opposed the said application interalia on the following grounds: that the plaintiffs have got no right to claim any maintenance from defendants nos. 2 to 4 during the life time of her husband i.e. defendant No.1. Defendants nos. 2 to 4 are neither necessary nor proper parties to the present proceedings. The suit is bad for mis-joinder of causes of action, in the absence of any permission from the court to join the different causes of action in the present suit. The plaintiff No.1 is claiming the relief of maintenance and separate residence. The said relief can only be granted to her only under the Hindu Adoption and Maintenance Act. For a relief of separate residence, plaintiff No.1 has to plead and prove her case as per Section 18(2) of the said Act. Plaintiff No.1 has however failed to make out any case under the said Act for claiming maintenance and separate residence and the suit is thus without any cause of action. Hence the plaint is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure. The agreement dated 4th November, 1994 is void and cannot be specifically enforced inasmuch as the said settlement was induced by undue influence, coercion and duress. Furthermore, the said agreement is without any consideration. On return from England with her mother on 31st October, 1994, plaintiff No.1 decided to go to her parents' house instead of her atrimonial home. In fact she refused to accompany defendant No.1. The marriage in between plaintiff No.1 and defendant No.1 has completely broken down. In fact the parties agreed to file a petition for divorce by mutual consent but Plaintiff No.1 changed her mind and started insisting for a financial settlement beyond the means of defendant No.1. The claim for maintenance at the rate of Rs.40,000/- per mensem as per the terms of the said agreement is beyond pecuniary capacity of defendant No.1. He is not economically sound enough to make the said payments. The said claim for maintenance is unreasonable, excessive and extortionate and cannot be sustained in law. During the life time of defendant No.1, defendants nos. 2 to 4 are not at all liable to pay any maintenance to the plaintiffs. The application is false and frivolous and is thus liable to be dismissed.

5. The defendants have also moved an application (I.A.No.2635/98) under Order 7 Rule 11 C.P.C. for rejection of the plaint and another one (I.A. No. 2534/98) under Section 151 CPC for recalling the order dated 15th December, 1997 passed by this Court.

6. All the above three applications are being taken up together as the same can be disposed of by one and the same order.

7. It has been urged for and on behalf of the plaintiffs that they are entitled to maintenance as per the settlement dated 4th November, 1994. The defendants are bound by the same and they cannot wriggle out of it, despite their efforts to avoid it on one pretext or the other. The defendants have miserably failed to comply with the terms and conditions of the said settlement since January, 1997.

8. Learned counsel for the defendants on the other hand has contended that the alleged agreement is the result of undue influence, coercion and duress brought to bear upon them. It is without consideration. The maintenance fixed through the same is unreasonable, excessive and extortionate and cannot be sustained in law. In any case, defendants nos. 2 to 4 are not liable to pay any maintenance to the plaintiffs during the life time of defendant No.1, who is the husband of plaintiff No.1. In fact, it is his moral duty to provide maintenance to the plaintiffs. Defendants nos.2 to 4 have got no obligation to maintain them. The suit is bad for misjoinder of the causes of action and misjoinder of the parties. The suit is thus liable to be dismissed. Hence the plaintiffs are not entitled to any relief through the present application.

9. I have heard the learned counsel for both the parties at sufficient length and very carefully examined their rival contentions and have given my anxious thoughts thereto.

10. The first and the foremost contention raised for and on behalf of the defendants is that the alleged settlement dated November 4, 1994 is a nullity. It has got no binding effect inasmuch as defendants Nos. 1 to 3 were forced to enter into the same by coercion, undue influence and duress. Hence the same cannot be given effect to ( vide para 4 of the written statement).

11. Learned counsel for the plaintiffs, Mr. Arun Jaitley, Senior Advocate, while countervailing the said argument has contended that the defendants executed the said settlement with their eyes wide open, without any coercion, threat and duress. They did so out of their own free will. Defendant No.1 executed the same being the husband of plaintiff No.1 whereas defendants Nos. 2 and 3 did so being the grand-father and grand mother of plaintiff No.2, and father-in-law and mother-in-law for their daughter-in-law Smt. Manali Singhal who was forced to leave her matrimonial home by defendant No.1. The said settlement was entered into in order to avoid conflicts, bickering and acrimony in the family relations and to bring peace and harmony in the family. Hence the same is very much binding.

12. The facts with regard to the alleged undue influence, coercion and duress find a mention in para 4(c) and (d) of the written statement. According to the same the mother of plaintiff No.1 came back to India on October 31, 1994. She was admitted thereafter to All India Institute of Medical Sciences for her treatment as she was critically ill. Plaintiff No.1 got an agreement prepared on November 4, 1994. The defendants called on the plaintiffs at 37, Aurangzeb Road, New Delhi, which was the residence of the parents of plaintiff No.1 at that time in order to enquire of the well being of the mother of plaintiff No.1. Plaintiff No.1, her father and brother at that time insisted on them to sign the impugned settlement. They in that connection used the factum of the serious illness of the mother of plaintiff No.1 to emotionally blackmail the defendants and to make them sign the same. Plaintiff No.1 stated that since her mother was dying she wanted to tell her at that critical juncture that her disputes with defendant No.1 have been settled amicably by showing her the said settlement. The defendants were further given to understand that the said agreement shall not be implemented and acted upon and the same was for the satisfaction of her mother who was terminally ill. Plaintiff No.1 threatened that in case they would not sign the same in that eventuality they would be subjected to all kinds of litigations and adverse publicity all over the country. It was in the above circumstances that the said settlement was signed and executed. Hence the same cannot be acted upon and enforced under law.

13. The question which is precariously perched on the tip of the tongue in the circumstances of the present case is as to how far the said fact prima-facie appears to be correct? Admittedly the impugned settlement dated November 4,1994 bears the signatures of all the defendants. Furthermore, besides the signatures, the sum of Rs. 40,000/- in figures as well as in words is in the hand of defendant No.1, Shri Ravi Singhal, who has after having filled up the said blank space ( vide cl.2) also put down his signatures in the margin.

14. Defendant No.1 was not alone at the time of execution of the alleged settlement. His parents were also there to morally support him. The defend-

ants are in no way weaker to the plaintiffs physically and economically. If three persons were present from the side of the plaintiffs i.e., her father, brother and plaintiff No.1 herself, equal number of persons were present from the side of the defendants i.e., defendant No.1 himself and defendants Nos. 2 and 3. Thus it does not appeal to the reason as to how the defendants were coerced into entering the said agreement.

15. The fact that the family settlement was entered into by defendants out of their own free will, without any threat, coercion or pressure is fully manifest from the letters which were exchanged in between the parties. In this connection this Court would like to refer to the letter dated April 20, 1994 written by defendant No.1 to plaintiff No.1 ( Annexure A-1) and another letter written by defendant No.1 to the mother of plaintiff No.1 ( Annexure A-2). A close scrutiny of the letter dated April 20, 1994 reveals that defendant No.1 has admitted therein that he had been a source of constant pain, agony and trouble to plaintiff No.1. He further holds himself esponsible for " screwing up the marriage".

16. A matrimonial alliance which is nurtured and sustained through love and affection is like a tender plant which withers away in the absence of sun and water for its growth. I cannot put it better than in the words of Sprat. "A great proportion of the wretchedness which has embittered married life, has riginated in a negligence of trifles. Connubial happiness is a thing of too fine a texture to be handled roughly. It is a sensitive plant, which will not bear even the touch of unkindness; a delicate flower, which indifference will chill and suspicion blast. It must be watered by the showers of tender affection, expanded by the cheering glow of kindness, and guarded by the impregnable barrier of unshaken confidence. Thus matured it will bloom with fragrance in every season of life, and sweeten even the loneliness of declining years."

17. The letters alluded to above portray defendant No.1 in a repentant and remorseful mood for the mistakes which he had committed during the period plaintiff No.1 and defendant No.1 lived together. While concluding the letter to the plaintiff No.1 he has got this to say that the plaintiff should not treat whatever he has done as a compensation for the agony and pain he has put her through. The same thing we find in the letter dated April 29, 1994 ( Annexure A-2) addressed to his mother-in-law i.e. the mother of plaintiff No.1. He feels sorry through the said letter for the emotional trauma he has put his in-laws through. It thus can be safely inferred therefrom prima facie that the impugned settlement was entered into by the defendants out of their own free will and without any pressure, coercion or duress in order to help the plaintiffs to pass on their lives comfortably in the absence of the earner of their bread i.e. defendant No.1.

18. The other contention that the defendants were emotionally blackmailed into entering the said agreement on account of the fact that the mother of plaintiff No.1 was almost on the verge of the death also does not have any substance. The defendants are alleged to have been prevailed upon to sign the said settlement as plaintiff No.1 wanted to show to her dying mother that her disputes with defendant No.1 have been amicably settled. What is the said settlement? To my mind, no mother worth the name, would be happy with such type of settlement whereby her daughter is asked to live separately from her husband and is provided maintenance on the said score. Would it be a source of consolation to the parents? The answer to the above question would be an emphatic 'no'. Parents want to see their children living their arried life happily. They never want a separation and maintenance on that ground. Thus it does not appeal to the reason that the mother of plaintiff No.1 would have been happy on the said score after having found her daughter living separately from her husband. I am thus of the view that the alleged family settlement is not the result of any emotional blackmail.

19. Learned counsel has then vehemently contended that the said family settlement is un-enforceable and void in law as the same is not permissible under any of the provisions of the Hindu Adoptions and Maintenance Act, 1956. I am sorry I am unable to agree with the contention of the learned counsel. The learned counsel Mr. Narula while raising the said argument has failed to show any such provision of law either under the Hindu Adoptions and Maintenance Act or under the Contract Act, or any judicial pronouncement whereby such an agreement was held to be void. On the other hand, we find in unequivocal terms from Section 25 of the Hindu Adoptions and Maintenance Act which deals with the amount of maintenance to be altered on change of circumstances that such a settlement would be permissible. It lays down " The amount of maintenance, whether fixed by a decree of court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration". Thus the Legislator in their wisdom have not only used the words " maintenance fixed by a decree of court" they have purposely and intentionally used the word " agreement" also. Thus there can be a maintenance which has been fixed by the parties themselves.

20. Learned counsel for the defendants has then argued that the impugned settlement is without any consideration. Hence the same is hit by Section 25 of the Contract Act. The contention of the learned counsel may be an ingenious one but can be brushed aside without any difficulty. Parties more often than not settle their disputes amongst themselves without the assistance of the court in order to give quietus to their disputes once and for all. The underlying idea while doing so is to bring an era of peace and harmony into the family and to put an end to the discord, dis-harmony, acrimony and bickering. Thus the consideration in such type of settlements is love and affection, peace and harmony and satisfaction to flow therefrom. I am supported in my above view by the observations of the Hon'ble Supreme Court as reported in Ram Charan Das Vs. Girja Nandini Devi and others, ....." Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in this context is not to be understood in a narrow sense of being a group of persons, who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. ....The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the persons bearing relationship with one another. That consideration having passed by each of the disputants, the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter". The same view was again reiterated in Maturi Pullaiah and another Vs. Maturi Narasimham and others .

21. Later on the Hon'ble Supreme Court again got an opportunity to deal with a family settlement. While dealing with the same it was observed in Kale and others Vs. Deputy Director of Consolidation and others, ( Head Note),...." By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are or of the points on which their rights actually depend....... Courts lean in favour of family arrangements. Technical or trivial grounds are overlooked. Rule of estoppel is pressed into service to prevent unsettling of a settled dispute."

22. The same view was given vent to as early as in the year 1941 in a case as reported in Uma Datt and others Vs. Ram Jiwan AIR 1941 Oudh 185, ..." The fact that the claims of the parties had been adjusted and that the disputes between them had been settled amount to a sufficient consideration for the upholding of the family settlement....". It is thus amply clear from above that a family settlement is a valid and a legal document and the Court can enforce it if it comes to the conclusion that in fact there was such a settlement.

23. Learned ounsel for the defendants has then contended that the defend-ants are not financially well off. They are thus not in a position to make payment to plaintiff No.1 at the rate of Rs. 50,000/- per mensem as demanded through the present application. The plaintiffs while showing the financial capacity of the defendants to make the payment have stated that the payments in connection with the maintenance were made to her(plaintiff No.1) at the above said rate till December, 1996. However, subsequently the defendants have failed to comply with the terms of the said settlement from January 1997 onwards. Thus according to the plaintiffs the payments were being made in pursuance to the said settlement till December 1996. Hence it goes to show that the defendants are financially and economically sound enough to pay the maintenance at the said rate. It has further been stated in the plaint that the defendants have properties and assets worth several crores of rupees (vide para 12). The defendants are a well-known family in the country. They own properties in several towns in the country such as, New Delhi, Mumbai, Udaipur, Allahabad. They have large commercial and industrial establishments, corporations and firms. They have got lucrative business. The defendants own a seven storeyed office in Greater Kailash, New Delhi. They also have farm houses in costliest areas within Delhi. They live in a palatial house in Vasant Vihar, New Delhi, built on an area of 2000 sq. yards with more than ten bed rooms, drawing cum dining room etc. They have many employees in their house in addition to drivers and gardeners. All the assets of the defendants are in the name of firms and HUF. Details of some of the properties known to the plaintiffs are given in Schedule III, which are as under:-

"1. Palatial residential house at 24, O1 of Palme Marg, Vasant Vihar, New Delhi - 110057, comprising of about ten bed rooms, large basement, living dining areas, two large lawns etc. approximately 2000 sq. yards.

2. Seven and a half acre farm with a posh farm house in Najafgarh near Indira Gandhi Airport.

3. 7 Storeyed office complex at Vipp's Centre, 2 Local Shopping Centres at Masjid Moth, Greater Kailash II, New Delhi.

4. Palatial house in llahabad.

5. Several properties in Udaipur.

6. Several properties in prime localities of Mumbai like a few of flats in Jolly Maker Apartments, Cuffe Parade.

7. A large office premises at Nariman Point.

8. A flat in Samundra Mahal, Worli, Mumbai.

9. Other properties."

24. Thus according to the plaintiffs the defendants are financially in a position to comply with the terms of the settlement.

25. Learned counsel for the defendants Mr. Narula, on the other hand, has filed income statements of Shri Ravi Singhal, Smt. Manjula Singhal, Shri Vivek Singhal and that of HUF for the period from March 31, 1994 to March 31, 1997. The learned counsel has thus contended on the basis of the above that the defendants are not financially sound enough to pay the maintenance to plaintiff No.1 in terms of the family settlement. Hence the contention of the learned counsel for the defendants is that the defendants should be absolved from their liability to pay the maintenance in terms of the said settlement.

26. More often than not it has been observed that when a person is asked to meet his financial liabilities, he will always put forward his lack of financial capacity and penury as an excuse for absolving him from the said liability. Whereas a person who wants to recover from that person debt, maintenance or some thing like that would always try to exaggerate his sources of income. This is something which is innate in the nature of a man and the parties herein are not an exception to that general rule. The Court in such circumstances has to strike a balance in between the two.

27. It has been admitted by the defendants in para 5 of the written statement (Reply on Merits) that defendant No.1 paid with the help of his family members " large sums of money" to plaintiff No.1. The same thing has been reiterated in para 8 of the written statement. Furthermore, it has been admitted by the defendants in para 3 of the written statement that it was the defendant No.1 who made all necessary arrangements for plaintiff No.1 to go abroad along with her mother in connection with her treatment in April, 1994. Curiously enough the defendants for the best reasons known to them have not disclosed the exact figures of the said amounts paid to plaintiff No.1, by way of maintenance and spent on her while she went to England along with her other. In any case, the said assertion substantiates the averments made in the plaint that the defendants have been paying the maintenance in terms of the said settlement upto December 1996 and they made defaults from January, 1997 onwards only. This goes to show that the defendants have got the financial capacity to make the payment in terms of the above settlement.

28. Defendant No. 1, Shri Ravi Singhal, in his affidavit dated July 28, 1998 has stated that he does not have a house of his own till to this date. It appears that while saying so he was oblivious of the fact that in his income tax return for the assessment year 1996-97 he has shown income to the tune of Rs. 42,000/- from immovable property. Furthermore, the income from the farm land for the year ending March 31, 1996 has been shown in the sum of Rs. 3,42,751.96. This goes to show that defendant No.1 has income from the immovable property as well as from the agricultural land and farm land. Thus in view of the above the said affidavit does not depict the correct picture with regard to the pecuniary status of defendant No.1.

29. A perusal of the income tax return for the year ending 1994-95 shows income from the salaries to the tune of Rs. 75,510/-. The income from the salaries during the year 1995-96 was Rs. 1,78,200/-. The said income has been shown as 'zero' during the years 1996-97 and 1997-98. Similarly, income from the business has also been shown to be 'zero'. Income from farmland has been shown as Rs. 2,07,000/- during the year 1994-95. It has subsequently been reduced to Rs. 4889/- during the year 1995-96 and it has been shown as Rs. 5628/- during the year 1996-97. Further, during the year 1997-98 it was reduced to 'zero'. I am thus prima facie facie of the view that the income tax returns placed on the file of the Court do not show the correct picture.

30. Furthermore, even if the income of all the defendants is calculated on the basis of the income tax returns, their income comes to Rs. 20,04,810/- per annum. The plaintiffs are claiming out of the said income maintenance @ Rs. 40,000/- per mensem as per the settlement which would come to Rs. 4,80,000/- per annum. Thus even otherwise I feel prima facie the defendants have got the financial capacity to pay the maintenance.

31.Learned counsel for the defendants Mr. Narula has then contended that the maintenance is to be fixed keeping in view the financial status of the parties and their standard of living. According to him the amount of main-

tenance should not be fixed at such a rate which is beyond the financial capacity of the husband to pay or which is likely to reduce him to a state of penury. The learned counsel in support of his argument has led me through the observations of the Hon'ble Supreme Court as reported in Smt. Jasbir Kaur Sehgal Vs. The District Judge, Dehradun and others, , ...." No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance........".

32. There is no dispute with the said proposition of law. However, while raising the said contention the learned counsel is oblivious of the fact that the present suit has been filed for enforcement of a family settlement where through the defendants themselves agreed to pay, inter alia, maintenance to the plaintiffs at the rate of Rs. 40,000/- per mensem. The present case is not a case simpliciter for fixation of maintenance under the Hindu Adoptions and Maintenance Act.

33. It has then been urged for and on behalf of the defendants that the suit is bad for mis-joinder of causes of action. Hence the same is not maintainable. To my mind this argument is not available to the learned counsel for the defendants as the plaintiffs sought permission of the Court to file the suit on the basis of different cause of action and the said permission was granted vide order dated December 15, 1997. Hence this argument is no more available to the defendants.

34. This brings us to the application, being I.A. No.2634/98, whereby the efendants want this Court to recall the order dated December 15, 1997 whereunder the defendants were directed to disclose on affidavit the names of the firms, companies, partnerships in which they have interests and to give details of all properties. The defendant no.1 has already complied with the said order fully. Whereas defendants nos.2 and 3 have also to a considerable extent complied with that order. Moreover, no reason whatsoever was given as to why the said order should be recalled. Hence the said application has got no force and is as such liable to be rejected.

35. Similarly, the application i.e. I.A. No. 2635/98, under Order 7 Rule 11 of the Code of Civil Procedure is also liable to be rejected in view of the above discussion.

36. Learned counsel for the defendants during the course of his arguments cited a number of authorities which are discussed below. I have gone through the same and I find that the same are not applicable to the facts and circumstances of the present case:-

1. Kirtikant D.Vadodaria Vs. State of Gujarat and another, : - It was a case for maintenance under Section 125(1)(d) Cr.P.C. It was held that expression "mother" in S. 125(1)(d) means only real or natural mother and does not include stepmother.

2. Dr. Kulbhushan Kunwar Vs. Smt. Raj Kumari, :- "The quantum of maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the mem-

bers..."

3. Gould Vs. Gould (1969) 3 All. E.R. 728: - " It has not been within the contemplation of the parties to make a legally-binding agreement; the uncertainty of the terms and the absence of any quid pro quo from the wife precluded that result."

37. The plaintiffs are thus entitled to succeed. The interim maintenance is fixed at Rs. 40,000/- per month in view of the settlement dated November 4, 1994. The defendants are liable to pay the maintenance fixed at the above said rate from January 1, 1997 onwards. The defendants are directed to clear the arrears of maintenance for the period from January 1, 1997 to September 30, 1998 at the rate of Rs. 40,000/- per month amounting to Rs. 8,40,000/- within two months from today.

38. The defendants are further directed to pay future maintenance, month by month, at the rate of Rs. 40,000/- per month, on or before the 5th day of every English calendar month.

39. The defendants would also pay and deposit the school fees and other charges in connection with the studies of plaintiff No.2 straightaway with the school wherever she might be studying.

40. The defendants are further directed to provide a residence to the plaintiffs as agreed upon in the family settlement dated November 4, 1994 (vide clause 4), within two months from today.

41. Prayers mentioned at (e) & (f) of para 5 of the application are rejected at this stage as the same do not arise out of the settlement.

42. Prayers (g) and (h) have already been allowed vide order dated December 15, 1997.

43. Prayer (i) is also declined at this stage inasmuch as nothing has been placed on record to show the medical expenses incurred by the plaintiffs in connection with their treatment.