Kerala High Court
Anupama P.V vs Sureshkumar on 13 January, 2020
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941
RPFC.No.26 OF 2015
AGAINST THE ORDER IN MC 65/2012 DATED 10-10-2014 OF THE FAMILY
COURT,THIRUVANANTHAPURAM
REVISION PETITIONERS/PETITIONERS:
1 ANUPAMA P.V.,
D/O VISWESWARAN,PRANAVAM, KALPAKA GARDERNS,
HOUSE NO. 147, PAPPANAMCODE, TRIVANDRUM
2 MEENAKSHY, D/O. ANUPAMA P.V.,
MINOR, REPRESENTED BY MOTHER , THE 1ST PETITIONER,
ANUPAMA PV, D/O VISWESWARAN, PRANAVAM KALPAKA
GARDENTS, HOUSE NO.147 PAPPANAMCODE, TRIVANDRUM
BY ADV. SRI.M.SREEKUMAR
RESPONDENT/COUNTER PETITIONER:
SURESHKUMAR,
S/O BALAKRISHNAN ACHARI, WORKING AS VETINARY SURGEON,
VETINARY DISPENSARY, CHITHARA, KOLLAM 691001
R1 BY ADV. SMT.L.R.DHANUJA
R1 BY ADV. SRI.MVS.NAMBOOTHIRY
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
13.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RPFC.No.26 OF 2015 -2-
ORDER
The revision petitioners are the petitioners in M.C.No.65 of 2012 on the file of the Family Court, Thiruvananthapuram. The above Maintenance Case (in short M.C) was filed under Section 127 of the Code of Criminal Procedure seeking enhancement of the maintenance amount awarded by the Family Court in M.C.No.113 of 2008 from Rs.1,500/- to Rs.7,000/- each, per mensem, payable by the respondent.
2. The revision petitioners filed the M.C. on the assertion that, as per the earlier order passed by the Family Court in M.C.No.113 of 2008, the respondent was directed to pay an amount of Rs.1,500/-, which in fact was on his consent. According to the revision petitioners, their cost of living has increased over the years, and that the respondent, who is a RPFC.No.26 OF 2015 -3- Veterinary Surgeon by profession is getting a monthly salary of Rs.36,784/- and also has other income from his private practice. They sought for enhancement of maintenance at the rate of Rs.7,000/- each per month.
3. The respondent appeared in this case and filed a counter statement. He denied the fact that he had considerable increase in his income. He contended that as per compromise petition that was filed between him and the 1st revision petitioner, the 1st revision petitioner had relinquished and waived her right to claim maintenance. According to him, as per clauses 3 and 4 of the compromise petition, the 1st respondent had received a lump sum amount of Rs.1,50,000/- and, therefore, she was disentitled to claim enhancement of maintenance. He further contended that on the basis of the lump sum amount that was paid by him, she was estopped from claiming maintenance from him. He prayed RPFC.No.26 OF 2015 -4- for the dismissal of the M.C. as against the 1 st revision petitioner.
4. The Family Court after considering the oral testimony of the 1st petitioner, who was examined as PW1 and the respondent who was examined as CPW1, and Exhibits.D1 to D3 documents that were marked through CPW1, held that the 1st revision petitioner was not entitled for maintenance and directed the respondent to pay an amount of Rs.5,000/- per month, as monthly maintenance to the 2nd revision petitioner.
5. It is assailing the order passed by the Family Court in rejecting the 1st revision petitioner's claim for maintenance and in limiting the 2nd revision petitioner's maintenance amount to Rs.5,000/- that this R.P.(FC) is filed.
6. Heard the Sri.M.Sreekumar, learned counsel for the revision petitioners and Sri.M.V.S.Nampoothiry, learned counsel for the RPFC.No.26 OF 2015 -5- respondent.
7. The learned counsel for the revision petitioners argued that the, impugned order passed by the Family Court is erroneous and wrong. According to the counsel, the Family Court has on the application filed by the revision petitioners seeking enhancement of maintenance under Section 127 of the Code of Criminal Procedure (Cr.P.C.) has cancelled the earlier order, awarding maintenance to the 1st revision petitioner. According to him, the Family Court has solely relied on Exhibit D3 compromise, wherein it is discernible that the 1 st revision petitioner had received an amount of Rs.1,50,000/- and that she agreed to relinquish her right to claim future maintenance.
8. The learned counsel relied on the decision of this Court in Vikraman Nair and another Vs. Aishwarya and others (2018 (5) KHC RPFC.No.26 OF 2015 -6-
156), Vipin Vs. Meera D.S. and others (2016 (5) KHC 367) and Rajesh R.Nair Vs. Meera Babu (2013 (1) KHC 812) to drive home his contention that, a clause in a compromise cannot disentitle the wife to claim maintenance, and the clause is hit by Section 23 of the Indian Contract Act. Therefore, even assuming there is a clause, it is null and void and cannot be enforced.
9. A Division Bench of this Court in Joy Varghese Vs. Leelamma (2007(3) KLT 654) held that, in a petition filed under Section 127 (1) of Cr.P.C., an order passed under Section 125 of Cr.P.C. cannot be cancelled.
10. It is an undisputed fact that the respondent had agreed to pay maintenance to the revision petitioners at the rate of Rs.1,500/- as per the order dated 25.09.2009 in M.C.No.113 of 2008. It is after four years that the revision petitioners sought enhancement of maintenance RPFC.No.26 OF 2015 -7- under Section 127 Cr.P.C. It was at that juncture, that the respondent produced Exhibit D3 compromise and contended that he is not liable to pay any amount as maintenance to the 1st revision petitioner. The Family Court, unfortunately, accepted the said defence and rejected the 1st revision petitioner's claim for maintenance.
11. The course adopted by the Family Court in totally rejecting the claim of the 1st revision petitioner is improper, irregular and illegal, particularly in view of the decision in Joy Varghese (supra). If the 1st respondent had such a case, his remedy was to seek modification of the order that was passed. The Family Court could not have cancelled the order granting maintenance to the 1st revision petitioner in her application filed for enhancement of the monthly allowance. Even otherwise, in view of the law declared by this Court in Rajesh R. Nair, Vikraman Nair and another and Vipin (supra), the RPFC.No.26 OF 2015 -8- Family Court could not have cancelled the order of maintenance in view of Exhibit D3. The Family Court ought to have considered the law declared by this Court and the Honourable Supreme Court in a plethora of decisions, that a clause in an agreement/compromise, waiving the wife's right to claim maintenance is hit by Section 23 of the Indian Contract Act. Likewise, it is a statutory right of a wife to seek maintenance as per Section 125 Cr.P.C. Thus the impugned order passed by the Family Court cancelling the maintenance amount to the 1st revision petitioner is erroneous and liable to be set aside.
10. In view of the finding that the Family Court has committed an error in cancelling the amount of maintenance awarded in M.C.No.113 of 2008, I do not feel it is appropriate to relegate the parties back to the Family Court at this stage, i.e., after seven years, for the purpose of deciding the quantum of maintenance RPFC.No.26 OF 2015 -9- payable by the respondent. Taking into consideration the fact that the respondent is a Veterinary Surgeon by profession and he is getting more than Rs.50,000/- and that the Family Court has already enhanced the maintenance allowance of the 2nd revision petitioner from Rs.1,500/- to Rs.5,000/-, I deem it appropriate to direct the respondent to pay an amount of Rs.5,000/- per mensem as monthly maintenance allowance to the 1st revision petitioner also. The 2nd revision petitioner's claim for maintenance at Rs.7,000/- was declined by the Family Court and limited to Rs.5,000/-. I do not find any irregularity or impropriety in the amount fixed as maintenance for the 2nd revision petitioner.
In view of the above findings and in
exercise of the powers of this Court under
Section 19(4) of the Family Court's Act read with Section 401 of the Code of Criminal Procedure, RPFC.No.26 OF 2015 -10- this R.P.(FC) is allowed in part. The 1 st respondent is directed to pay an amount of Rs.5,000/- per mensem as monthly maintenance allowance to the 1st revision petitioner from 10.10.2015 onwards. The respondent is permitted to pay the entire arrears of maintenance within a period of six months from the date of receipt of the order in two equal instalments. The respondent shall continue to pay the monthly maintenance to the 2nd revision petitioner at the same rate of Rs.5,000/- per month.
Sd/-
C.S.DIAS JUDGE vv