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1961 DIGILAW 238 (KER)

Abubacker v. Katheesa

1961-07-28

P.GOVINDA MENON

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Judgment :- 1. The Revision Petitioner's divorced wife had filed a petition before the Munsiff-Magistrate of Quilandy claiming maintenance for her child aged one year. Marriage and the paternity of the child were admitted. He contended that there was an agreement to pay maintenance at the rate of Rs. 3/-, that he had paid the maintenance at the rate till 30-1-60 on which date there was a compromise and a lump sum of Rs. 500/-was paid towards maintenance charges of the child till it attained majority and that he is not bound to pay anything more. The learned Munsiff-Magistrate found that the compromise is not binding and awarded maintenance at the rate of Rs. 25/- per month. The view taken by the Magistrate is correct. 2. Even assuming that the agreement set up is true and that Rs. 500 was actually paid (for which there is no independent evidence) such an agreement between the father and the mother that on payment of a lump sum the father need not pay any further maintenance is not binding on the child. Obligation to maintain the child is a statutory obligation and the parties cannot contract themselves out of it. The father cannot divest himself of his liability to maintain his child by an agreement with his wife. 3. This was the view taken in Maung Tin U v. Ma Hla Kyi (AIR. 1937 Rangoon 246) where it was held: "The parties cannot contract themselves out of the statutory obligation to maintain children under the Criminal P. C. The mere fact that S.488, sub-section (1) Criminal P.C. refers to monthly allowance and monthly rates of allowances merely shows that the Court has taken the month as a convenient unit whereby to calculate allowances. It does not show that independently of an order of the court, as where matter has been referred to arbitration, lump sums cannot be paid for the maintenance of a child. Of course this lump sum is not a complete answer to future applications by the guardian of the minor. If at any time she finds that she has nothing left of this sum she ran apply to the court for a fresh order for maintenance and there will be no obstacle then to this fresh order in the fact that this lump sura had been paid on a previous occasion". I am in respectful agreement with this view. 4. If at any time she finds that she has nothing left of this sum she ran apply to the court for a fresh order for maintenance and there will be no obstacle then to this fresh order in the fact that this lump sura had been paid on a previous occasion". I am in respectful agreement with this view. 4. The learned counsel referred to certain decisions holding that when. there is a compromise the Magistrate ceases to have jurisdiction and no order of maintenance can be passed. I had occasion to consider the effect of compromise entered into by the parties on the order to be passed by the Court under S.488, Crl. P.C., in State of Kerala v. Vimala (1961 KLT 450) where it was held that the compromise arrived at in proceedings under S.488 merely denotes that the parties had agreed as to what is the amount that should be paid, and that even after the compromise the court has still to pass an order awarding maintenance. So the Magistrate is certainly justified in passing an order of maintenance for the child. 5. The next question is about the quantum of maintenance. Normally a revisional court would not interfere with the discretion exercised by the trial court in fixing the amount of maintenance, but this case is peculiar. Both in her notice to the husband and also in the maintenance petition the wife had definitely stated that there was a compromise between her and her husband in the presence of respectable mediators where the quantum of maintenance was fixed at Rs. 15/- and that the maintenance was not paid and that is why she had to file the maintenance petition. Persons who took part in the mediation are all local people who knew the parties and they had decided upon the amount to be paid as maintenance after taking into consideration the means of the husband and all other attendant circumstances. Therefore the Magistrate could have accepted that figure instead of making a guess work. On a scrutiny of the evidence, I feel Rs. 15/- is a reasonable Amount. It will be open to the wife when the child grows older and when more expenses have to be incurred to apply under S.489 Crl. P.C. 6. In the result I modify the order by reducing the maintenance amount to Rs. 15 a month. On a scrutiny of the evidence, I feel Rs. 15/- is a reasonable Amount. It will be open to the wife when the child grows older and when more expenses have to be incurred to apply under S.489 Crl. P.C. 6. In the result I modify the order by reducing the maintenance amount to Rs. 15 a month. With this modification the revision petition is dismissed. Dismissed.