Karnataka High Court
Mr Rudolph Joseph D Souza vs Mrs Sunita Joyce Suaris on 10 June, 2024
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WP No. 5777 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 5777 OF 2024 (GM-FC)
BETWEEN:
MR.RUDOLPH JOSEPH D'SOUZA
AGED ABOUT 55 YEARS
S/O LATE ELIAS D'SOUZA
RESIDENT OF 3/99
EDEN, KEMANGUNDI
DANASALE ROAD, NEAR RAMASAMUDRA
KARKALA TALUK
UDUPI DISTRICT-574 104
...PETITIONER
(BY SRI. PARTHA SARKAR, ADVOCATE)
AND:
MRS.SUNITA JOYCE SUARIS
AGED 50 YEARS,
SUNITHA JOYCE SUARIS
101, 1ST FLOOR,
NARAYANS'S LIVING
Digitally
KADRI KAMBLA ROAD, KADRI
signed by
SUVARNA T MANGALORE-575 004
...RESPONDENT
Location:
HIGH THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
COURT OF OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
KARNATAKARECORDS PERTAINING TO MISCELLANEOUS CASE NO. 1 OF 2022
PASSED BY THE SENIOR CIVIL JUDGE AND ACJM AT KARKALA
ARISING OUT OF MC NO. 68/2018 AND SET ASIDE ORDER DATED
24/07/2023 IN MISCELLANEOUS CASE NO. 1 OF 2022 PASSED BY
THE SENIOR CIVIL JUDGE AND ACJM AT KARKALA ARISING OUT OF
MC NO. 68/2018 AT ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 5777 of 2024
ORDER
The present writ petition is filed aggrieved by the order
dated 24.07.2023 passed in Miscellaneous Case No.1/2022
passed by the Senior Civil Judge and ACJM, Karkala.
2. The parties are referred to as husband and wife for
the sake of convenience.
3. The facts of the case are that the husband and wife
have filed a petition under Section 10A of the Indian Divorce
Act and they have also entered into Memorandum of
Understanding dated 26.01.2017. As per the terms of the said
MOU, the husband had agreed to pay a sum of Rs.25,00,000/-
by way of fixed deposit towards final settlement to the wife and
the children and also monthly expenses, educational expenses
and medical expenses for the next three years. Basing on such
an MOU entered between the parties, the Court below had
passed a decree of divorce on 29.11.2018. In para No.3 of the
judgment in M.C.No.68/2018, it is recorded that the husband
has agreed to pay a sum of Rs.25,00,000/- towards past,
present and future maintenance to the wife and the children in
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the form of fixed deposit and also monthly expenses,
educational expenses and medical expenses for the next three
years and the wife shall not have any claim for maintenance
against the husband. On that, the wife had agreed to handover
the children to the custody of the husband once he comes to
India and the wife is entitled to visit the children at any time
without any restrictions from the husband. If the children are
taken abroad by the husband, he shall provide visa to the wife
to visit the children. It is also recorded that both of them have
settled their disputes regarding their belongings and permanent
alimony and in this regard separate compromise deed was
prepared between the parties.
4. The Court below had passed a decree of divorce and
after four years, the present application is filed under Section
151 and 152 of CPC seeking amendment of decree. It is the
case of the wife that as per mutual consent and MOU filed
before the Court below, the husband had agreed to pay an
amount of Rs.25,00,000/- and the same was not brought in the
decree passed by the Court below. For that, objection was filed
by the husband stating that after he came back to India, he has
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paid the entire amount of Rs.25,00,000/- by way of cash. The
wife has kept quiet for four years and now a petition is filed and
the same is liable to be dismissed. The learned Judge had
allowed the application observing that, whether the husband
has paid the amount to the wife or not is not a matter which
has to be decided in the present petition filed under Section
152 of C.P.C, which is only filed for seeking amendment of the
decree. The Court below had observed paying an amount of
Rs.25,00,000/- is part of a mutual consent decree, the same
should have been reflected in the decree that is passed by the
Court. As the same was not reflecting in the decree, it is a
clerical error and the same requires to be amended.
Accordingly, the decree was amended by inserting the condition
that the husband has to pay an amount of Rs.25,00,000/- to
the wife as permanent alimony. Aggrieved thereby, the
husband is before this Court.
5. Learned counsel appearing for the husband submits
that after the MOU is filed before the Court below and also a
chief affidavit is filed by the wife before the Court, wherein she
has not mentioned anything with regard to the amount of
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Rs.25,00,000/- which makes it very clear that the husband had
paid the amount. It is submitted that having received the
amount, the wife had kept quiet for four years and she has
come up with this application only to harass the husband and to
extract the money from him. The Court below had allowing the
application and amended the decree. It is submitted that the
wife has violated the terms of the memorandum of
understanding and she has taken the custody of the children
instead of handing them over to the husband. It is submitted
that all these aspects were not considered by the Court below
and the Court below after lapse of four years, ought not to
have allowed the amendment petition.
6. Having heard the learned counsel for the petitioner,
perused the entire material on record. The undisputed facts in
this case are that MOU has been filed before the Court below on
26.01.2017 and as per clause 2 of the said MOU, the husband
has to pay an amount of Rs.25,00,000/- in the form of fixed
deposit and in terms of the MOU, decree was passed on
29.11.2018. This Court has perused the judgement and decree
passed by the Family Court. In that, there is no mention about
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the condition whereby an amount of Rs.25,00,000/- has to be
paid to the wife. It is the case of the husband that he has
already paid the amount by way of cash. This Court is not able
to appreciate the said contention raised on behalf of the
petitioner/husband. The terms of MOU clearly states that it has
to be in the form of fixed deposit. Now he cannot take such a
stand that he has paid by way of cash. Even if he has paid the
amount by way of cash, it is in subsequent proceedings if at all
initiated by the wife, it is for the husband to prove those things
before the appropriate Court. Now, the only issue that fell for
consideration before the Court below was whether the terms of
the compromise, particularly that an amount of Rs.25,00,000/-
was reflected in the judgment and decree. The said term is not
reflected in the decree. Unless and until that is reflected, in the
decree. The decree cannot be executed. The Court below had
rightly considered all these aspects and rightly allowed the
petition by incorporating the said clause in the decree. Now, in
this case, the Court cannot go into the aspect whether the
husband has paid the amount or not, what is the manner of
payment, the husband has to prove in an appropriate
proceedings and not before this Court. In the considered
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opinion of this Court, the Court below had rightly passed the
order and amended the decree and this Court finds no reason
to interfere.
7. Accordingly, the writ petition is dismissed. Pending
I.As., if any shall stand disposed off.
SD/-
JUDGE
MEG
