We need to definitely take stock of the path breaking, powerful, peculiar, progressive and pragmatic judgment titled Chhatter Pal & Ors v. State & Anr in CRL.M.C. 6197/2019 and (Neutral Citation : 2023:DHC:3396) that was reserved on March 15 and then finally pronounced on May 16, 2023 wherein the Delhi High Court has laid down comprehensive guidelines for drafting a mediated settlement agreement in matrimonial disputes and said that there is an urgent need of having settlement agreements in Hindi. The Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma who delivered this most commendable, courageous, cogent and creditworthy judgment deserves to be applauded for batting most strongly in favour of having settlement agreement in matrimonial disputes which is the crying need of the hour also. No denying it!
At the very outset, this most learned, laudable, latest and landmark judgment authored by the Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that:
By way of present petition filed under Section 482 of the Code of Criminal Procedure Code, 1973 (‘Cr.P.C’), quashing of FIR bearing no. 519/2012, registered at Police Station Uttam Nagar, for the offences punishable under Sections 498A/406/34 of the Indian Penal Code, 1860 (‘IPC’) has been sought qua the present petitioners.
To put things in perspective, the Bench envisages in para 2 that:
Brief facts of the present case are that the marriage between the complainant i.e. respondent no. 2 and co-accused Lalit was solemnized on 23.01.2011. It is stated that there was irretrievable breakdown of the marriage due to incompatible behaviour, conduct and temperament of the parties. Thereafter, on the complaint of respondent no. 2 alleging physical and mental cruelty for demand of dowry and beating by her husband and in-laws, the present FIR was registered against the husband as well as the petitioners i.e. brother of husband’s father, his son, and elder brother of husband.
Needless to say, the Bench then states in para 3 that:
The matter was referred to mediation centre at the time of hearing of anticipatory bail application of the accused husband. Fortunately, the matter was amicably settled before the mediation centre and all the disputes were resolved between the parties which were reduced to writing by way of a mediated settlement agreement dated 30.07.2014.
As it turned out, the Bench then discloses in para 4 that:
The story of the dispute culminating into an agreement to settle all disputes past, present and future, thus, had a happy ending for both the parties as the agreement was to the contentment of both the parties. However, there was a twist in the story as now the police filed a chargesheet against all the accused persons and the police duly informed the learned Magistrate about the settlement arrived at between the parties and the quashment clause in the agreement. In the meantime, the petition to quash FIR was filed by the husband as only he had been summoned by the learned Magistrate and the FIR was quashed against the husband before summons could reach him.
Thus, even husband or his relatives did not know that chargesheet had been filed by police, as the summons were to reach the husband before 25.08.2015. The twists in the story did not end here as now the other relatives of the husband i.e. petitioners were summoned by the learned Magistrate. By the time the present petitioners realised that they too needed to get the FIR quashed against them, another twist awaited them after eight years which was unforeseen that by this time, the other key player of the story i.e the complainant conveniently changed her mind and appeared before this Court only to inform that she had not entered into agreement with them but only with her husband and therefore, FIR cannot be quashed, even after receiving the entire amount of settlement including the amount for quashing of FIR.
As we see, the Bench then points out in para 5 that:
This Court, therefore, had a situation at hand where the petitioners herein had a bumpy ride so far as the present litigation is concerned. They were lucky that the matter was amicably settled even before the chargesheet could be filed before the learned Magistrate, however, they were unlucky that the settlement agreement did not mention their names. They were blissfully unaware of the fact that they were also accused in this case. They were lucky that the chargesheet was filed without arresting them but they were unlucky that the Magistrate was constrained to summon them after taking cognizance against them, since the FIR in question was not quashed qua them. In other words, they thought that they were fortunate that the FIR had been quashed, but unfortunately, the entire amount was paid to the complainant for quashing of the FIR without their names being included in the quashing petition. And even now, their misfortune, as far as the present litigation is concerned, has not come to an end as the complainant now refuses to give her statement for quashing of the FIR.
Suffice it to say, the Bench underscores in para 23 that:
This approach of the complainant, in the considered opinion of this Court, is neither correct nor acceptable as she has already received the entire amount as per the settlement agreement towards settlement of all her claims and matrimonial disputes as well as for quashing of present FIR. In case this Court returns a finding that the settlement was arrived solely between the wife/complainant and the husband, it would undermine the fundamental objective of the process of mediation in this case. Suffice it to say, the very purpose of mediation in this case has already been defeated as legal proceedings have been prolonged and dragged on for 10 long years despite a successful mediation between the parties.
Guidelines Apropos Drafting A Settlement Agreement in Matrimonial Disputes with Special Reference to Clauses dealing with Criminal Cases
Most significantly, the Bench hastens to add in para 42 stating that:
Having discussed the significance of process of mediation in resolution of a dispute, especially those arising out of family and matrimonial cases, and having taken note of complexities that can arise due to inadequate drafting, inconsistencies, omissions or oversights within a settlement agreement achieved between parties subsequent to a successful mediation, this Court deems it appropriate to lay down following guidelines in relation to drafting of a Mediated Settlement Agreement, in addition to the guidelines laid down:
- Specify Names of Parties:
The agreement must specifically contain names of all the parties to the agreement.
- Avoid Ambiguous Terms:
The terms such as ‘respondent’, ‘respondents’, ‘petitioner’ or ‘petitioners’, in absence of their names in the agreement must be avoided in an agreement as it leads to ambiguities and further litigation.
- Include All Details:
The terms and conditions of the agreement reached between the parties, howsoever small and minute they may be, must be incorporated in the agreement.
- Timeline For Compliance:
The timeline of the fulfilment of terms and conditions as well as their execution must be clearly mentioned. There should be no tentative dates as far as possible.
- Default Clause:
A default clause should be incorporated in the agreement and the consequences thereof should be explained and enlisted in the agreement itself.
- Mode of Payment:
In case any payment is to be made as per settlement, the agreement should specify the method of payment agreed upon between the parties which should also be as per their convenience i.e. electronic mode, by way of a Demand Draft or FDR and the necessary details for fulfillment of this condition.
- Follow-Up Documents:
The agreement should also stipulate as to which Follow-up documents are to be prepared and signed by which party. It may also be mentioned as to when, where, how and at whose cost such documents are to be prepared in furtherance of the terms of the agreement, as far as possible.
- Cases involving 498A IPC:
Further, especially in cases of matrimonial disputes, where one of the conditions in the Agreement is to cooperate in quashing of FIR, such as those under Section 498A IPC, and filing of affidavit and appearing in the Court for the purpose of the same, it is advisable that the agreement must stipulate the names of all the parties concerned who have been named in the FIR specifically and the fact that the claims have been settled in totality for quashing of entire FIR and proceedings emanating therefrom qua all persons named in the FIR. It be also clarified specifically that the FIR will be quashed in totality against all the persons arrested, not arrested, chargesheeted, not chargesheeted, with their names and whether the entire FIR will be quashed against all of them upon payment by husband or any other person on behalf of the husband.
- Criminal Complaints/Cross-cases:
Criminal Complaints filed by parties against each other, pending trial or investigation should also find specific mention with names of all the parties, the Court concerned, and as to how the parties intend to deal with them. The number/details of the complaint, FIR, Sections under which they have been filed, should also be mentioned specifically.
- Read and Understood:
The agreement should necessarily mention that all the parties have read and understood the contents of the settlement agreement in their vernacular language.
- Signing of Agreement:
In case only one or some parties are present during mediation proceedings and only their signatures are obtained on the agreement, it be clearly mentioned and clarified that the agreement is being signed on behalf of those relatives or parties also even in case they are not present, in case the agreement is qua them too and they are not present in person due to age, ailment, distance or any other reason. It is important to do so since in matrimonial offences, the near and distant relatives may, due to above reasons, not be present in person but agreements are reached in totality, especially regarding quashing of FIRs and criminal proceedings and withdrawal of complaints.
- Clarity of Language:
At last, the language used in a settlement agreement must be definite enough to understand the real intention of the parties and the goals they wish to achieve by entering into the agreement.
Most pragmatically, the Bench observes in para 46 that:
This Court also remains conscious of the fact that the majority of litigants who approach this Court and the Courts below speak Hindi as their first language. Given that Hindi is their mother tongue, they are far more adept at speaking and understanding it than they are at other languages such as English. However, the mediated settlement agreements in Delhi are drafted only in English. In such a scenario, the Settlement Agreement and the conditions thereof may not always be adequately clear to the parties and at times, the translation from English to Hindi may not convey exactly what the parties intend to do.
To be sure, the Bench reveals in para 45 that:
It can be noted that as per directions of the Central Government, a Hindi Department has been constituted in every Court and Hindi Committee is also constituted in every Court complex. The project of translation of the judgments from English to Hindi is already successfully working under guidance of Hon’ble Apex Court.
As a corollary, the Bench directs in para 46 that:
It is, therefore, directed that concerned In-charge of Mediation Centres will ensure that the mediated settlement agreements are prepared in Hindi language also, in addition to English language, as far as possible. It is being directed since in majority of cases, the parties do not comprehend English and their spoken language and mother tongue is Hindi. However, in cases the parties are well-versed in English language and want the agreement to be in English language only, there will be no such insistence or requirement.
It is quite noteworthy that the Bench on an encouraging note observes in para 47 that:
This Court hopes that once the agreements are written in Hindi, wherever required, which the parties understand and the Mediator performs his/her duty carefully, it will ensure not only finality of agreements in the mediation centers but also its successful culmination in the Courts of law which is the aim and objective of mediation centers.
Adding further, the Bench specifies in para 48 that:
Also because the aim of mediation is to reduce or resolve litigation and not to escalate it, it would be apt to ask both the parties to bring their agreements in their own language even in skeletal form, which can help the mediator to ensure that none of the conditions is left out while preparing the final draft or agreement.
Broadly speaking, the Bench holds in para 54 that:
This Court, therefore, having taken a broader approach of characterising the main issue in this case as discussed above, holds that the agreement in the present case for quashing of the FIR was qua all the respondents as mentioned in clause 5 of the Settlement Agreement in question.
Notably, the Bench directs in para 55 that:
Thus, as far as the prayer in the present petition is concerned, the same is allowed and the FIR bearing no. 519/2012, registered at Police Station Uttam Nagar, for the offences punishable under Sections 498A/406/34 IPC and all proceedings emanating therefrom stands quashed.
Most remarkably, the Bench holds aptly in para 57 that:
To conclude, this Court notes that the confusion that arose due to an ambiguity in the settlement agreement and the prolonging of the present case for ten years after having been settled underscored the importance of laying down the above mentioned guidelines for preparation of mediated settlement agreements. The lives of people embroiled in matrimonial litigation are often in state of turmoil, and thus, the mediation as a method of alternate dispute resolution has to come to their rescue instead of further extending the state of turmoil. Guidance needed by the mediators to draft agreements with degree of coherence, consistency, and unambiguity will come a long way in healing the lives of those in need of such healing by immediately putting an end to a dispute and further insulating them from future litigation. This Court by way of this judgment only aims to ensure that challenges to such mediation agreements due to lack of clarity or missing out on the crucial aspects of the agreement are minimized.
In addition, the Bench directs in para 58 that:
A copy of this judgment be forwarded to In-Charge, Delhi High Court Mediation and Conciliation Centre (SAMADHAN) as well as concerned In-charge of all the Mediation Centres in all District Courts of Delhi, for taking note and ensuring compliance and for further circulation among all learned mediators. A copy be also forwarded to Director (Academics), Delhi Judicial Academy.
Finally, the Bench concludes by directing in para 59 that:
The judgment be uploaded on the website forthwith.
All told, the commendable guidelines laid down so brilliantly by Delhi High Court in this leading case for drafting mediated settlement agreement must be definitely implemented forthwith. Of course, the use of Hindi in such settlement agreement must be encouraged widely so that a common person can understand it properly. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
