Madras High Court

Ashok Viswanath vs A.Balanagini on 21 September, 2021

                                                                                  CMSA(MD).No.2&3 of 2020


                                   BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Dated : 21.09.2021

                                                          CORAM:

                                   THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                              CMSA(MD).Nos. 2 and 3 of 2020

                                                           and

                                                 CMP(MD) No.602 of 2020

                    Ashok Viswanath                                       ...Appellant in both petitions

                                                     Vs

                    A.Balanagini                                        ...Respondent in both petitions

                    Prayer in CMSA(MD) No.2 of 2020:- This Civil Miscellaneous Second Appeal
                    has been filed, under Section 28 of the Hindu Marriage Act read with Section
                    100 of CPC, against the judgement and decree, dated, 03.11.2018 made in
                    HMCMA No.29 of 2017 on the file of the Additional District Court (Fast Track
                    Court) Tenkasi confirming the judgment and decree dated 20.03.2017 made in
                    HMOP No.165 of 2013 on the file of the Principal Sub Court, Tenkasi and allow
                    this Civil Miscellaneous Second Appeal.


                    Prayer in CMSA(MD) No.3 of 2020:- This Civil Miscellaneous Second Appeal
                    has been filed, under Section 28 of the Hindu Marriage Act read with Section
                    100 of CPC, against the judgement and decree, dated, 03.11.2018 made in
                    HMCMA No.53 of 2017 on the file of the Additional District Court (Fast Track
                    Court) Tenkasi confirming the judgment and decree dated 20.03.2017 made in
                    HMOP No.32 of 2015 on the file of the Principal Sub Court, Tenkasi and allow
                    this Civil Miscellaneous Second Appeal.




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https://www.mhc.tn.gov.in/judis/
                                                                                CMSA(MD).No.2&3 of 2020




                                   (In both petitions)
                                   For Appellant         : Mr.K. Appadurai

                                   For Respondent        : Mr.T.Selvan

                                                           ORDER

The Civil Miscellaneous Second Appeal in 2 of 2020 has been filed

against the judgement and decree, dated, 03.11.2018 made in HMCMA No.29

of 2017 on the file of the Additional District Court (Fast Track Court) Tenkasi

confirming the judgment and decree dated 20.03.2017 made in HMOP No.165

of 2013 on the file of the Principal Sub Court, Tenkasi and the Civil

Miscellaneous Second Appeal in 3 of 2020 has been filed against the

judgement and decree, dated, 03.11.2018 made in HMCMA No.53 of 2017 on

the file of the Additional District Court (Fast Track Court) Tenkasi confirming

the judgment and decree dated 20.03.2017 made in HMOP No.32 of 2015 on

the file of the Principal Sub Court, Tenkasi.

2. The learned counsel for the appellant would submit that the marriage

between the appellant /husband and the respondent/wife was solemnized on

11.12.2005 and out of their wedlock they were blessed with a male child on

29.05.2007 named Devanarayanan and another female child on 11.10.2009

named as Sambavi. Thereafter due to misunderstanding they got separated

from the year 2010 and they have been living separately for the past 11 years

due to incompatibility and difference. The appellant / husband had filed HMOP

https://www.mhc.tn.gov.in/judis/ CMSA(MD).No.2&3 of 2020

No. 165 of 2013 on the file of the Principal Sub Court, Tenkasi for dissolution of

marriage and the respondent /wife had filed a petition in HMOP No. 32 of 2015

on the file of the Principal Sub Court, Tenkasi for restitution of conjugal rights.

The petition filed by the husband for dissolution of marriage was dismissed and

the petition filed by the wife was allowed by judgment and decree dated

20.03.2017. Against the dismissal, the appellant had filed an appeal in HMCMA

Nos.29 and 53 of 2017before the learned Additional District Judge, Fast Track

Court, Tenkasi and the same has been dismissed by a common judgement

and decree dated 03.11.2018, against which the present appeals has been filed

by the appellant/husband.

3. The learned counsel for the appellant would further submit that the

appellant /husband earlier suffered from severe brain stroke and is now

continuously taking treatment under the care of Chief Medical Officer of Vijaya

Health Centre, Vadapalani, Chennai. He would further submit that the parties

have settled the matter and today, in open Court they have filed a joint memo

of compromise dated 21.09.2021 and he would pray that the suitable orders

may be passed in view of the joint compromise memo.

4. The learned counsel for the respondent would submit that parties have

decided to settle the issue, pursuant to which a joint memo of compromise has

been filed.

https://www.mhc.tn.gov.in/judis/ CMSA(MD).No.2&3 of 2020

5. Heard the learned counsel appearing on either side and perused the joint

memo of compromise.

6. The parties have agreed for settlement and a joint compromise memo

has been filed before this Court, wherein it is stated that the appellant/husband

has already paid a sum of Rs. 50 lakhs as one time settlement towards welfare

of the children and wife/respondent. The relevant portion of the joint memo of

compromise is extracted hereunder:

" The appellant/husband and the respondent/wife married on 11.12.2005, out of the wedlock Devanarayanan, son and Sambavi daughter were born on 29.05.2007 and 11.10.2009 respectively.

2. Since 2010 both the appellant and the respondent separated from each other and living separately for the past 11 years due to incompatibility and differences. The respondent got return of jewels and sridana articles under valid receipt.

3. Appellant filed HMOP No. 165 of 2013 on the file of the learned Principal Sub Judge, Tenkasi for dissolution of marriage and the respondent filed HMOP No. 32 of 2015 on the file of the Principal Sub Court, Tenkasi for restitution of conjugal rights. Petition for dissolution filed by the appellant/husband was dismissed and petition for restitution of conjugal rights was allowed by a common judgement dated 20.03.2017. The respondent/wife received Rs.11,000/- as maintenance pending the final decision of trial Court.

https://www.mhc.tn.gov.in/judis/ CMSA(MD).No.2&3 of 2020

4. Appellant filed two appeals in HMCMA Nos.29 and 53 of 2017 before the learned Additional District Judge (FTC) Tenkasi, against the said common judgment and decree of tiral Court. Both the appeals also got dismissed by a common judgment and decree dated 03.11.2018.

5. Appellant has filed two appeals in CMSA(MD) Nos. 2 and 3 of 2020 before this Hon'ble Court and the same are pending. Whileso, the appellant/husband suffered a brain stroke and taking treatment under the care of Chief Medical Officer of Vijaya Health Care, Vadapalani, Chennai. The medical records are enclosed for perusal.

6. In the given circumstances, at the intervention of the elders and wellwishers and to secure best interest of the child and that of the respondent wife, a compromise has been mooted and after negotiation talks the respondent agreed to received Rs.50,00,000/- (Rupees Fifty lakhs) from the appellant as one time settlement and accordingly the appellant paid the said sum of Rs. 50,00,000/- in the following manner.

S.No Name of person Details of Bank, DD No and Date Amount Rs 1 Devanarayanan Karur Vysya Bank, 7,00,000/-

Rajapalayam Branch DD No.158862 DD.Sr.No.012383060582 dt. 23.02.2021 2 Devanarayanan Karur Vysya Bank, 7,00,000/-

Rajapalayam Branch DD No.158861 DD.Sr.No.012383060583 dt. 23.02.2021

https://www.mhc.tn.gov.in/judis/ CMSA(MD).No.2&3 of 2020

3 Devanarayanan Karur Vysya Bank, 6,00,000/-

                                                   Rajapalayam Branch
                                                   DD No.158860
                                                   DD.Sr.No.012383060584
                                                   dt. 23.02.2021
                      4            Sambavi         Karur Vysya Bank,                7,00,000/-
                                                   Rajapalayam Branch
                                                   DD No.158859
                                                   DD.Sr.No.012383060579
                                                   dt. 23.02.2021
                      5            Sambavi         Karur Vysya Bank,                7,00,000/-
                                                   Rajapalayam Branch
                                                   DD No.158858
                                                   DD.Sr.No.012383060580
                                                   dt. 23.02.2021
                      6            Sambavi         Karur Vysya Bank,                6,00,000/-
                                                   Rajapalayam Branch
                                                   DD No.158857
                                                   DD.Sr.No.012383060581
                                                   dt. 23.02.2021
                      7            Balanagini      City Union Bank,                 10,00,000/-
                                                   Rajapalayam Branch
                                                   DD No. 027369
                                                   DD Sr.No.00027369
                                                   dt.23002.2021
                      Total                                                         50,00,000/-

7. After receipt of the aforesaid demand draft and realization the respondent/wife also executed a supporting settlement document dated 24.02.2021 in favour of the appellant/husband in the presence of an Advocate Notary T.Murugiah Pandian that receipt of the aforesaid amount is a one time settlement towards maintenance for herself and two minor children and undertaking that she will not claim any amount towards any other amount form the appellant.

8. In view of the above settlement the appellant and respondent have jointly entered into this compromise and crave leave to file this Memorandum of joint

https://www.mhc.tn.gov.in/judis/ CMSA(MD).No.2&3 of 2020

compromise praying this Hon'ble Court to pass final orders in the above appeal in the following terms:

i) The appellant and the respondent mutually agreed for this joint compromise in the best interest of the children and their welfare.

ii) The Joint Compromise reached without any threat or coercion or criminal intimidation against each other.

iii)The respondent admits receipt of Rs. 50,00,000/- (Rupees Fifth Lakhs only) from the appellant through demand drafts in the aforesaid manner.

iv) The respondent hereby agrees that receipt of said payment is one time settlement toward maintenance of respondent and her children and they have no present or further claim against appellant in respect of any matters

v)The appellant and the respondent agree that they will not proceed with any litigation in respect of their matrimonial dispute present or future and waive all their claims against each other.

vi) The respondent will take care of her children and there will be no further claim against the appellant by respondent on behalf of her children

vii)The parties agree for the final orders to be passed on the above terms of joint compromise, there is no collusion among them in filing this joint compromise and they have not suppressed any material facts or details before this Hon'ble Court.

It is prayed that this Hon'ble Court may be pleased to pass final orders in the above appeals on the above terms jointly agreed by the parties to the above appeals and thus render justice ".

7. In view of the joint memo compromise , the common judgment and decree

dated 03.11.2018 passed by the Additional District Judge, Fast Track Court,

Tenkasi is set aside. The common judgment and decree dated 20.03.2017

https://www.mhc.tn.gov.in/judis/ CMSA(MD).No.2&3 of 2020

passed in HMOP No. 165 of 2013 and HMOP No.32 of 2015 on the file of the

Principal Sub Court, Tenkasi is also set aside. The petition filed by the

husband in HMOP No. 165 of 2015 is decreed in terms of the joint memo of

compromise, which would also form part and parcel of the decree.

8.In the result, the Civil Miscellaneous Second Appeals stand allowed. No

costs. Consequently connected miscellaneous petition is closed.

21.09.2021

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