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2008 Supreme(Mad) 3914

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. TAMILVANAN
B. Suresh Babu
Versus
Nithya
Civil Revision Petition (NPD) Nos.3856 and 3857 of 2007, M.P.Nos.1 and 1 of 2007 and 1 and 2 of 2008
Decided On : 30-10-2008

Advocates Appeared:
For the Petitioner:M. Ravindran, Senior Counsel, C.R. Dhasarathan, Advocate.
For the Respondent:P.S. Raman, Senior Counsel, P.V. Balasubramanian, BFS Legal, Advocates.


Headnote:A. CONSTITUTION OF INDIA Article 227 - Revisional Jurisdiction - Compromise decree passed based on memo of compromise filed by spouses in family court - Petition filed to set aside compromise decree - Notice ordered by family court - Civil Revision in HC filed against order of notice - HELD, ordering notice cannot be construed as illegal or abuse of process of court, so as to warrant interference of HC under Section 227 - Even an order passed on compromise has to be treated as an interlocutory order in the eye of law - Court below has Jurisdiction to decide matter on merits - Since no final order passed by it.

       B. COMPROMISE DECREE - Setting aside in family matters - See Constitution of India - Article 227.

Judgment :-

Civil Revision Petition in C.R.P (NPD) No.3857 of 2007 has been preferred against the Notice ordered in I.A.No.700 of 2007 by the Family Court, Coimbatore, wherein the respondent herein has sought an order to set aside Clauses 2 to 7 of the compromise decree, dated 23.02.3005 passed in G.W.O.P.No.1 of 2005, based on the joint memo of compromise.

2. Civil Revision Petition in C.R.P (NPD) No.3856 of 2007 has been preferred by the petitioner/respondent against the Notice ordered in I.A.No.701 of 2007 on the file of the Family Court, Coimbatore, wherein the respondent herein has sought an order of interim stay against the operation of Clauses 2 to 7 of the aforesaid compromise decree, dated 23.02.2005.

3. The brief facts of the case are as follows :

The respondent herein had filed H.M.O.P.No.695 of 2004 on the file of the Family Court, Coimbatore to dissolve the marriage that was solemnised between the petitioner and the respondent on 110. 2000. Similarly, the revision petitioner herein filed G.W.O.P.No.1 of 2005 on the file of the court below, under Sections 7 (1) (b) and 8 (1) of Guardians and Wards Act 1890, for appointing the petitioner as Guardian of his minor son Rahul born out of the wedlock. During the pendency of both the Original Petitions, there was a compromise arrived at between the parties herein and they filed a joint memo of compromise, signed by both the parties and their counsel. The memo of compromise was recorded and a decree was passed in terms of the compromise by the court below, based on the compromise decree, dated 23.02.2005, H.M.O.P.No.695 of 2004 filed by the respondent herein seeking divorce was allowed and the G.W.O.P filed by the petitioner herein was ordered in terms of the joint memo of compromise filed by both the parties.

4. As per the Interlocutory Application in I.A.No.700 of 2007, the respondent herein has sought an order to set aside Clauses 2 to 7 of the compromise decree passed in G.W.O.P.No.1 of 2005 and the application, I.A.No.701 of 2007 has been filed seeking an order of interim stay of the operation of Clauses 2 to 7 of the compromise decree. The Family Court, Coimbatore, ordered Notice in both the Interlocutory Applications. Aggrieved by which, the revision petitions have been filed by the petitioner/ respondent.

5. The memo of compromise filed by both the parties herein before the Family Court, reads as follows :

"Due to the intervention of well wishers, counsel and friends, both parties have arrived at a settlement in respect of the disputer between them. The details are:

1) The custody of minor Rahul shall remain with the mother viz., the respondent herein.

2) The father (Sri Suresh Babu) shall be entitled to visitation rights as follows:

3) (a) The father shall have access to the child for two connective week ends : first week and commencing on Friday evening 6 p.m till sunday Evening 6 p.m.

.(b) And the second week and will commence on Saturday Morning at 8.45 a.m. and Sunday Evening 6 p.m.

.(c) During the third week end, the child will be retained by the mother.

.(d) During the gap between the end of second week end and the commencement of the first week and the Father shall have the right to take the child on a Wednesday directly from the school and retain the child till 7 p.m.

4) During vacation i.e., quarterly, half yearly and summer vacation, the father shall have the custody of the child for the first half of the holiday and the mother will have custody for the second half of the holidays.

5) The father undertakes to pick up the child and also drop him back at the agreed timings.

6) During emergencies and important occasions, functions etc., the parties will mutually agree regarding custody and if necessary they can seek the assistance of the counsel to bring about an amicable agreement on that.

7) The father and mother will have the custody of the child during birthdays of the child as follows :

.(a) For the first year, the father will have the custody d































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