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CASE NO.: Appeal (civil) 6955-6956  of  2001

PETITIONER: RAVI SINGHAL & ORS.

       Vs.

RESPONDENT: MANALI SINGHAL & ANR.

DATE OF JUDGMENT:       01/10/2001

BENCH: D.P. Mohapatra & K.G. Balakrishnan

JUDGMENT:

D E R K.G. BALAKRISHNAN, J.

       Leave granted.

       These   appeals   are filed  against   judgment and  order dated 28.7.2000  passed   by   the   Division  Bench of the Delhi High Court in FAO (OS) No. 9 of 1999     and order dated 24.11.2000 in R.A. No. 1419 of 2000,  preferred  against  an interim order dated 28.10.1998  passed earlier   by a learned Single Judge.    The appellants herein are defendants   in  Suit No. 2583 of  1997   on  the   file of   original jurisdiction  of  the  High Court of Delhi, having  been     filed by the respondents herein  for the enforcement of an alleged Family Settlement entered into between the parties on 4.11.1994.     The facts in brief are as under.

       The   first   appellant,  Ravi Singhal, married the first respondent on 10.2.1989.    The second respondent is their daughter born on 18.3.1991. After the marriage, the first respondent was staying with the appellants in her   matrimonial  home at Vasant Vihar in New Delhi.   It seems that the marriage ran into   rough    weather by 1994.  The  first respondent  had to accompany her mother  for treatment abroad and she returned with her mother to India  on 31.10.1994  and according to the first respondent, when she arrived in Delhi   she was informed by the first appellant that he did not want  to continue the marital relations.    The first appellant,  on the other hand,   would say that on  arrival from abroad the first respondent went straight to her parents’  house.    There was no possibility of any reconciliation between the parties and the   relationship  continued to be sour.    The  first  respondent   along  with second respondent     left the matrimonial home  at Vasant Vihar  and  started living with her parents.   It appears  that there were  negotiations   between   the  parties to arrive at some settlement and on 4.11.1994, a written agreement was entered into between the parties.   All the appellants herein signed the agreement.   A true copy of the agreement is produced as Annexure P-7.    The appellants do not dispute the genuineness of the agreement.  It has been contended by the first appellant in the written statement filed by him before the High Court  that the agreement entered into on 4.11.1994 is void and not liable to be   specifically    enforced  as the appellants had signed  the same  under duress and not with free consent.   According to the appellants, the mother of the first respondent was brought to India on 31.10.1994  and as  she was critically ill and  she  was  admitted  in All India  Institute of Medical Sciences and  the  first  respondent  insisted  the

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appellants  to  sign   the  Settlement     Deed as she  wanted to  show  the signed agreement  and satisfy her mother that every dispute was settled. According to the first appellant, the agreement signed by him on 4.11.1994 was not intended to be acted upon    and  it was  merely a paper transaction.

       As per the alleged agreement, the appellants are bound to discharge certain obligations.    The nomenclature of the agreement is shown   as   "Memo  of  Settlement"  and as  per clause (1) of the agreement,   the appellants are to provide a residential house in South Delhi to the respondents  while  clause (2) says  that the appellants have to provide a sum of Rs.40,000/- per month to the respondents, free of income tax,   for the maintenance  and upbringing of the daughter and also  for the maintenance of the first respondent.   There are other clauses in the agreement  by which  the appellants are required  to meet expenses for the education of the second respondent and  the   first appellant  is  to provide expenses for a vacation abroad  once a year for a period of thirty days  to the respondents.   The first appellant is also to meet the medical expenses   of   the respondents  and  to provide a car to them.    As regards custody of the second respondent, it was agreed that she would stay with the mother.

       The respondents   filed  a  suit in  1998 alleging that  the appellants failed to discharge  their obligations under the Memorandum  of Settlement   and   in the  suit   the Memorandum of Settlement  was sought   to   be  specifically  enforced.    The      respondents  moved for an interim direction   and   the learned  Single Judge, by an elaborate order, held   that the plaintiff-respondents were entitled to get interim maintenance  @  Rs.40,000/-     per month.     The  appellants  herein were also  directed  to clear the arrears of maintenance from January 1, 1997 to September 30, 1998 @ Rs.40,000/- per month  and the total amount  thus payable was Rs.8,40,000/-.   The appellants were also directed to deposit the school fee and other charges in connection with the education    of the second respondent.   By this interim order, the appellants were also directed to provide a house   to the  respondents  in terms of clause (4) of the  Memo of Settlement.    Some other prayers sought for by the respondents   were   declined   to be granted   as  interim arrangement for the respondents.

       This  order  was unsuccessfully challenged by the appellants before the  Division  Bench.   The Division Bench  elaborately considered the matter and held that no interference  was called for.  The interim direction passed by the learned Single Judge was  directed  to  be  complied with by the appellants.      As stated above,  this  order   is  challenged   before us.

       We      heard    the  matter  at   great    length.   The counsel on either side brought to our notice series of decisions relevant to the points raised  by the  parties  in  the proceedings, but we do not propose to  go into such  disputed  questions   as  the  appeals  now before us  are only against  an  interim order.   Any observation made by this Court may have great persuasive effect   with regard to the   matter       which may be agitated finally in the suit.

       The   appellants  contended that the suit itself is not maintainable and  the remedy, if  at all   open to the respondents,  is to file an application under the provisions of the Hindu Adoptions & Maintenance Act, 1956  [for short, "the Act"]. It was  argued   that  an order for  interim maintenance could  only be passed under Section 23 of the   Act.   It  is also  argued that the Memorandum of Settlement  is  void and is opposed to public policy and that there cannot be any judicial separation under an agreement, except in accordance with the provisions of the Hindu Marriage Act.

The counsel  for the respondents, on the other hand, contended

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that there could be a Family Settlement and it is not against any public policy.   Our attention was also drawn to Section 25 of the Act where reference is made to agreements entered into by the parties regarding the amount of maintenance.

       The counsel on either side also drew our  attention to various decisions rendered by this Court and various other High Courts.   We do not propose to refer to those decisions  as most of them have been considered   by   learned    Single   Judge   as   well  as  by  the Division Bench in the impugned judgment.

       The counsel for the appellants vehemently contended that the Memorandum of Settlement was signed by the appellants under special circumstances and the first appellant   is   financially  not  in a position to meet the alleged obligations under the agreement.    The counsel argued that by  the  impugned judgment, the plaintiff-respondents have been given virtually the entire relief sought for  in the suit and the appellants  are unduly burdened with financial liabilities which are incapable of being performed  by   the first appellant.   We notice the force in this contention, but at the same time it is to be borne in mind that this is only an interim order passed by the court in exercise  of the discretionary power vested in it in such family proceedings.  Further, the interim arrangement made under the order only covers payment of interim maintenance, arrears and current, deposit of school fees of the child and providing a separate residence   From the impugned judgment, it is clear that there was a long and elaborate debate by the counsel on either side regarding the financial capability of the appellants.   Having regard to the fact  that the order under  challenge is an interim order,   without expressing any  opinion  on merits we would only say that the discretionary power exercised by the court cannot be said to be perverse or  irrational so as to warrant interference by this court.   But at the same time,  the appellants have raised certain serious contentions which require  consideration at the hands of the learned Single Judge before whom the matter would come up for trial.   We only wish that the suit may have an expeditious trial  and the same be finally disposed of.   The parties also, with the help of friends and well-wishers shall explore the possibility of an amicable settlement and bury the hatchet once and for all.   We make it clear  that any observation made by this Court or the High Court shall not have any persuasive effect  when the matter is finally considered by the Court.

       The appeals are disposed of accordingly with no order as to costs.

                                                       .................................... J                                                         [ D.P. Mohapatra ]

                                                       .................................... J New Delhi                                               [ K.G. Balakrishnan ] October   1, 2001.