IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 186 of 2004()
1. T.LEENA, W/O.A.JOSE,
... Petitioner
Vs
1. A.JOSE, S/O.CHARLEY, AGED 48 YEARS,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.C.K.SREEJITH
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :07/11/2007
O R D E R
K.R.UDAYABHANU, J
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R.P.(FC) No.186 of 2004
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Dated this the 7th day of November, 2007
O R D E R
The revision petitioner is the first petitioner in
M.C.No.5/2003 in the file of Family Court, Kannur, the
proceedings initiated by her under Section 125 Crl.P.C. claiming
maintenance for herself and two minor children who are
petitioners 2 and 3. The Family Court allowed maintenance at
the rate of Rs.400/- per month to the second petitioner and
Rs.350/- per month to the third petitioner but declined the
prayer of the first petitioner/revision petitioner for maintenance.
2. It is the case of the petitioner that she married the
respondent/counter petitioner on 17.6.1985 and the second and
third petitioners, the children, are born in the wedlock.
According to her, the respondent was in the habit of harassing
her without any sufficient reason and alleged that he had failed
to provide maintenance to the petitioners. According to her, the
respondent is having an income of Rs.4,000/- per month from his
employment at Dinesh Beedi Company. She has claimed
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maintenance at the rate of Rs.500/- per month for herself and at
the rate of Rs.400/- per month for the minor children. The
respondent has denied the liability although admitted the
marriage. According to him, the revision petitioner was leading
an immoral life and had eloped with one Bobban in the year
1996. Subsequently, on 20.5.1998 an agreement was executed
between himself and the revision petitioner as per which both of
them had agreed to live separately and the first petitioner had
also agreed to relinquish her claim for maintenance. According
to him, she is living separately without sufficient reason and that
she is a labourer getting a sum of Rs.3,000/- per month. He has
contended that he is getting only a sum of Rs.1,500/- per month
as wages and that he has to look after his mother also.
3. The evidence adduced in the matter consisted of the
testimony of PW1, CPWs’ 1 to 3 and Exts. D1 to D8.
4. The revision petitioner has only disputed the order of
the court below declining maintenance to her. The court below
denied maintenance to the revision petitioner mainly on the
ground of Ext. D1 agreement. Ext. D1 agreement has been
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executed on 20.5.1998 wherein the revision petitioner is also a
signatory. The above agreement is also attested by two witnesses
and one of whom is CPW3. It is mentioned that for the last two
years the revision petitioner and the respondent are living
separately on account of the allegation that she is having illicit
relationship. In Ext. D1 agreement it is also mentioned that no
amount of maintenance will be paid by the respondent to the
revision petitioner and that she will not be entitled for any
amount of maintenance or any right in the property of the
respondent.
5. CPW3 is a witness to the agreement. He has testified
in proof of the same. He has deposed that the revision petitioner
was living with one Bobban and that he saw both of them living
together when he went to their house on two occasions. It is the
evidence of PW1, the petitioner/revision petitioner as well as
CPW3 that the agreement was executed at Family Councelling
Centre. According to PW1 she was made to sign in blank paper.
But nothing has been brought out in the cross examination of
CPW3 to disbelieve his version. It is also to be noted that
RPFC186/2004 4
although it is admitted that from 1998 they are living
separately the proceedings under Section 125 Crl.P.C. has been
initiated only in 2003. It is also pertinent to note that no specific
act of ill treatment or cruelty has been alleged against the
respondent. She has also deposed that she is not willing to live
with the respondent. It is also to be noted that CPW3 has stated
that one Karunan was also present at the time of executing Ext.
D1 agreement. PW1 has admitted that Karunan is her uncle. In
Ext. D1 signature of Karunan is also seen. In the circumstances,
I find that the revision petitioner could not establish that she is
living separately for sufficient reasons.
6. The counsel for the revision petitioner has relied on
the decision reported in Ranjit Kaur vs. Pavittar Singh (1992
Crl. Law Journal 262) in which the Division Bench of Punjab
and Hariyana has held that an agreement as such cannot take
away the right of wife to claim maintenance under Section 125
Crl.P.C. The above proposition cannot be disputed. But in the
instant case, I find that it stands established that the petitioner is
living separately without sufficient reason and hence she would
RPFC186/2004 5
not be entitled to claim separate maintenance. I find no reason
to disturb the findings of the court below.
The revision petition is dismissed.
K.R.UDAYABHANU,
JUDGE
csl