Rosey Sailo Damodaran v. Nitin Damodaran

order/decree are breached by one party, then, at the instance of the aggrieved party, appropriate orders shall be passed in accordance with law.

(13) For breach of the undertaking given to the concerned court or willful/deliberate violation of a consent order/decree, if so approached or otherwise, the court would take appropriate action as permissible in law to enforce compliance by the defaulting party by exercising contempt jurisdiction as contemplated under Section 2(b) of the Contempt of Court Act, 1971. This will however exclude any coercive orders compelling the defaulting party to give its consent for grant of a decree of divorce by mutual consent, notwithstanding any settlement/undertaking given by the parties before any fora."

¶14Further, the guidelines set forth in Rajat Gupta (supra) are mandatory inasmuch as it says that settlement agreement "must" incorporate guidelines (i) to (vii) as reproduced above. The mediator failed to draw the mediation agreement in accordance with the said guidelines by not recording :-

(i) a declaration of both the parties in unequivocal and unambiguous terms that they have agreed on each and every term recorded in the settlement agreement;

(ii) the terms that have been settled between the parties of their own free will, volition and consent and without their being any undue pressure, coercion, influence, misrepresentation or mistake; and

(iii) an undertaking of the parties that they will abide by and be bound by the agreed terms/stipulations of the settlement agreement etc.

¶15Further, Rule 25 (a) of the Mediation and Conciliation Rules, 2004 sets out the procedure for the court to ratify the settlement reached between the parties. The Rule reads as under :- "Rule 25: Court to fix a date for recording settlement and passing decree.

(a) On receipt of any settlement, the court shall fix a date of hearing normally within seven days but in any case not beyond a period of fourteen days. On such date of hearing, if the court is satisfied that the parties have settled their dispute(s), it shall pass a decree in accordance with terms thereof."

¶16The petitioner herein never personally appeared before the learned Principal Judge, Family Court. Even the respondent did not

personally appear. Only the learned counsel for the respondent made a statement that the matter stands settled between the parties as per the mediation settlement Ex. P-2 and he sought permission to withdraw the petition. The petition was allowed to be withdrawn with liberty to the respondent herein to revive the proceedings in case the petitioner herein does not abide by the terms and conditions of the mediation settlement. The satisfaction stipulated in Rule 25 is a judicial satisfaction and could be reached at only after verifying from both the parties, their objective, willingness and satisfaction towards the terms of the settlement. The said Rule escaped the attention of the learned Principal Judge, Family Court.

¶17The mediation settlement dated 10.08.2018 does not record any undertaking of the parties inasmuch as that they shall file the petition for divorce by mutual consent on or before 15.10.2018 or that the respondent shall pay a sum of Rs.17,50,000/- to the petitioner on or before 15.10.2018 at the time of recording the statements of parties in the first motion or Rs.32,50,000/- to the petitioner at the time of recording of their statements of the second motion. The mediation settlement also does not record any term or condition or consequence in case of default or breach of the terms and conditions of the mediation settlement on the part of the respondent. The order dated

20.08.2018 does not record that the parties have settled the terms and conditions out of their free will, volition and consent and without their being any undue pressure, coercion, influence, misrepresentation or miscommunication in any form whatsoever. It also does not record

the statement on oath of either of the parties that they have executed the settlement agreement after fully understanding its terms and conditions, consents, effect and consequence thereof or they have arrived at the settlement of their own free will or volition or in the alternative to file their respective affidavits affirming the terms and conditions of the settlement. The learned Principal Judge, Family Court has given liberty only to the respondent herein to revive divorce proceedings if the petitioner herein does not abide by the terms of the mediation settlement in terms of the statement of the counsel for the respondent herein.

¶18In view of the above discussion, I do not find any merit in the petition. The petition is dismissed with no orders as to costs.

(VINOD GOEL) JUDGE FEBRUARY 08, 2019 'AA'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order: 08.02.2019 + ROSEY SAILO DAMODARAN ..... Petitioner Through: Mr. Ujjwal Jha & Mr. Bonny Laishram, Advocates with petitioner in person. Versus NITIN DAMODARAN ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD GOEL (ORAL) C.M. No.6067/2019 (for exemption) Allowed, subject to all just exceptions. The application is disposed of. 1. The petitioner seeks initiation of contempt proceedings against her husband/respondent for wilful breach and non-compliance of the undertaking/settlement arrived at between the parties before the Mediation Centre, Patiala House Courts, New Delhi, on 10.08.2018 and confirmed by the Family Court on 20.08.2018. 2. Learned counsel for the petitioner submits that the respondent herein filed a divorce petition being DA No.2/2017 against the petitioner herein before the Principal Judge, Family Court, Patiala House Courts, New Delhi titled as Nitin Damodaran vs. Rosey Sailo Damodaran under the Indian Divorce Act, 1869 ('IDA'). The matter was referred to the Delhi Mediation Centre, Patiala House Courts, New Delhi, and parties settled their disputes amicably. The respondent agreed to withdraw the divorce petition and the parties agreed to obtain decree of divorce by mutual consent. At the time of the first motion, the respondent was to make the payment of Rs.17,50,000/- to the petitioner and at the time of the second motion, the remaining amount of Rs.32,50,000/- was to be paid by the respondent to the petitioner. He submits that despite the settlement, the respondent has not come forward to initiate, sign and file the divorce petition by mutual consent. He submits that the petitioner even contacted the learned counsel for the respondent but no response has been received. The petitioner has sent a letter dated 14.12.2018 followed by an e-mail of even date to the respondent but no response was given. He submits that the respondent has violated the undertaking given before the learned Principal Judge, Family court and for his wilful disobedience, contempt proceedings need to be initiated against him. In support of his contention, learned counsel for the petitioner relies upon the judgement of the Division Bench ('DB') of this court dated 15.05.2018 made in Reference in the Cont. Cas (C) No.772/2013 titled "Rajat Gupta v. Rupali Gupta" (2018) 249 DLT 289. 3. I have heard the learned counsel for the petitioner. 4. In the case of Rajat Gupta (supra), the following four questions of law were referred to the DB to answer:- "A) Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both and has also undertaken to appear before the said Court for obtaining divorce can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act? B) Whether by undertaking before a Court to file a second motion under Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of the Act, 1955? C) Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both for obtaining divorce? D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia Cont. Cas.(C) 772/2013 & Ors. Page 29 of 29 (supra) are good law in view of the doubts expressed by this Court in paras 19 to 28 and in view of the Division Bench judgment in Dinesh Gulati (supra)." No plea to the effect of grave prejudice caused to the