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2020 DIGILAW 803 (KER)

Avani P. P. v. Pratheesh P. C.

2020-09-25

MARY JOSEPH

body2020
ORDER : The revision on hand is filed against an order passed by Family Court, Kalpetta on 28.09.2018 dismissing M.C.No.117 of 2017 filed by the 2nd revision petitioner who is none other than the wife of the respondent for and on behalf of the 1st revision petitioner, the minor daughter born to her in her marriage with the respondent. A claim for Rs.10,000/- was raised in M.C.No.117 of 2017 as monthly maintenance to the 1st revision petitioner and the same was declined by the Family Court on the basis of Ext.P4 agreement executed by the 2nd revision petitioner and the respondent at the time of filing of a joint petition seeking divorce, whereby, the 2nd revision petitioner had relinquished the right of the 1st revision petitioner to get monthly maintenance under Section 125 Cr.P.C after receiving Rs.1,25,000/- + Rs.50,000/- from the respondent for and on behalf of the 1st revision petitioner. 2. It is urged by Adv. Arun Ajay Shankar, the learned counsel on behalf of the revision petitioners that the entitlement of the 1st revision petitioner to get monthly maintenance from her father is a right available under Section 125 of the Code of Criminal Procedure and being a statutory right, it cannot be waived or relinquished by her mother while representing her as next friend during her age of minority, by accepting a lumpsum amount. The learned counsel has also relied on Vikraman Nair & Another v. Aishwarya & Others [ 2018 (4) KLJ 528 ] to rest the above contention. 3. Adv.Jeswin.P.Varghese, the learned counsel on behalf of the respondent has contended that the 2nd revision petitioner after accepting Rs.1,25,000/- + Rs.50,000/- (being the cost of gold chain of the mother) and agreeing to utilise the interest accrued on making a fixed deposit of that amount, towards maintenance of the 1st revision petitioner cannot now turn round and raise a claim before the Family Court seeking to fix the monthly maintenance reasonably in favour of the minor child. According to him, the revision petitioner would be unlawfully enriched on allowing the M.C in her favour and issuing a direction to the respondent to pay the monthly maintenance fixed by it. It is urged by the learned counsel that it undoubtedly would prejudice the respondent and the Family Court is justified in dismissing the M.C, thereby disallowing the claim for maintenance. 4. It is urged by the learned counsel that it undoubtedly would prejudice the respondent and the Family Court is justified in dismissing the M.C, thereby disallowing the claim for maintenance. 4. The learned counsel for the respondent had submitted before the Family Court that a sum of Rs.1,70,000/- was deposited in fixed deposit in the name of the 1st revision petitioner on 09.05.2017 following execution of Ext.P4 on 20.07.2016. According to him, as on date of filing of the M.C on 21.07.2017, the deposit was there in favour of the 1st revision petitioner. 5. It is pertinent to note from the impugned order that the M.C was dismissed on the basis of Ext.P4 which incorporates that Rs.1,25,000/- was agreed by the respondent to be given to the 2nd revision petitioner as a condition for withdrawing from prosecuting O.P. No.07/2014, a petition seeking decrees for restitution of conjugal rights and divorce on mutual consent. It was agreed that the 2nd revision petitioner shall receive the amount in full and final settlement of all their differences and that the amount shall be fixed deposit in a bank and the 2nd revision petitioner shall withdraw interest accrued on the deposited sum. 6. As stipulated in the agreement, a sum equivalent to the market price of a gold chain of 2 sovereigns given by the respondent to the 2nd petitioner at the time of marriage, was also agreed to be utilised for the future prospects of the 1st revision petitioner. 7. The relevant part of the agreement where the above terms are recited is extracted hereunder for easy reference: 8. The Family Court has observed in the backdrop of the above extract that, a wife, child or parent would only be entitled to get monthly maintenance under Section 125 Cr.P.C. when a person in his capacity as husband, father or son as the case may be neglected or refused to maintain them and in the case on hand, since the respondent has paid Rs.1,70,000/- and it stands in fixed deposit in the name of the 1st revision petitioner, with liberty being reserved to the 2nd revision petitioner to withdraw interest therefrom for meeting the expenses of the latter, it cannot be said that there was neglect or refusal of the respondent to pay monthly maintenance to the 1st revision petitioner and therefore, the latter is disentitled to get maintenance under Section 125 Cr.P.C. 9. In Vikraman Nair supra, a Division Bench of this Court has held: “22. When an agreement is entered into by the wife and the husband, as a part of compromise filed in the court or otherwise, whereby the wife relinquishes or waives the right to claim maintenance in future from the husband, for herself or for the minor children, such an agreement is opposed to public policy and it does not preclude her from claiming maintenance under Section 125 of the Code of Criminal Procedure.” 10. In the case on hand the 2nd revision petitioner by agreeing to accept the offer of the respondent to pay Rs.1,25,000/- for the maintenance of the 1st revision petitioner had in effect agreed not to raise any claim for share in the ancestral properties, compensation or maintenance before the police in future. According to the respondent, Rs.1,70,000/- stands in deposit in favour of the 1st revision petitioner and the 2nd revision petitioner had not raised any dispute against. 11…. 12. Section 125 was incorporated in the Code of Criminal Procedure to achieve the aim of saving a wife, child, legitimate or illegitimate and parents who have been neglected by a person in his capacity respectively as husband, father or son as the case may be, from living in a state of destitution and vagrancy. Or in otherwords it reminds a husband, father or son that in whatever capacity he may be, cannot evade from his obligation to maintain his wife, children and parents. Payment of a just and reasonable sum monthly is that contemplated by the provision and the court is empowered to fix the quantum on being convinced that any of them are unable to maintain their own. An allowance is awarded under Section 125 Cr.P.C as monthly maintenance not for a limited period but for a period for which wife or other dependents of the husband are neglected by him and therefore live in destitution. A deserted destitute wife, child or parents had the entitlement to get a reasonable sum fixed by the Family Court as monthly maintenance having due regard to the monthly income, status in society and other relevant aspects relating to the husband. It is a statutorily conferred right. 13. A deserted destitute wife, child or parents had the entitlement to get a reasonable sum fixed by the Family Court as monthly maintenance having due regard to the monthly income, status in society and other relevant aspects relating to the husband. It is a statutorily conferred right. 13. In the case on hand, a valuable right of the minor child has been waived or relinquished by the 2nd revision petitioner/mother by accepting Rs.1,70,000/- deposited by the respondent in the 1st revision petitioner's favour. 14. Section 23 of the Indian Contract Act, 1872 is apposite consideration in the context and therefore is extracted : “23. What considerations and objects are lawful and what not.- The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” 15. It provides that a contract, forbidden by law or if it would have the impact of defeating any provisions of law or if fraudulent or involves or implies injury to the person or property of another or if regarded by the court as immoral or opposed to public policy, is unlawful and therefore is void. In the case on hand, by accepting the lumpsum amount paid, the mother of the minor girl had relinquished her right to get maintenance under Section 125 Cr.P.C. The mother as next friend of the minor has also relinquished her statutory entitlement to get maintenance from her father, who had deserted her. 16. Undoubtedly, the relinquishment of a statutory right is opposed to public policy and therefore, is void. The Family Court ought not to have declined the claim of the minor girl for maintenance for the reason. The impugned order, by which the claim of the 1st revision petitioner was declined by the Family Court and her application seeking maintenance was dismissed by the court, deserves to be set aside for the reasons stated above. In the result, revision stands allowed and the impugned order dismissing the maintenance case is set aside. The impugned order, by which the claim of the 1st revision petitioner was declined by the Family Court and her application seeking maintenance was dismissed by the court, deserves to be set aside for the reasons stated above. In the result, revision stands allowed and the impugned order dismissing the maintenance case is set aside. The M.C was directed to be considered afresh by Family Court, Kalpetta and disposed of within a period of three months from the date of receipt of a copy of this order. Both parties shall appear before the Family Court on 27.01.2021. The parties shall co-operate with the Family Court in its venture to dispose of the M.C. within the time frame. The interest accrued on the sum stands in fixed deposit in the name of the minor child shall be adjusted in the amount found payable as maintenance by the fresh order that will be passed by the Family Court in the M.C. The Family Court shall see that the M.C shall be reconsidered and disposed of within the period of time fixed by this Court.