Kammuttakath Abdul Saleem vs Pokkuvinte Parakkal Kadeeja on 10 January, 2008

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Kerala High Court
Kammuttakath Abdul Saleem vs Pokkuvinte Parakkal Kadeeja on 10 January, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP(Family Court) No. 5 of 2008()


1. KAMMUTTAKATH ABDUL SALEEM,
                      ...  Petitioner

                        Vs



1. POKKUVINTE PARAKKAL KADEEJA,
                       ...       Respondent

2. SHAHANAS BABU,

                For Petitioner  :SRI.C.V.MANUVILSAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :10/01/2008

 O R D E R
                             R.BASANT, J
                          ----------------------
                       R.P.(F.C)No.5 of 2008
                    ----------------------------------------
             Dated this the 10th day of January 2008

                               O R D E R

This revision petition is directed against a direction issued

by the Family Court under Section 125 Cr.P.C to pay enhanced

maintenance at the rate of Rs.1,500/- per mensum to the sick

child of the petitioner.

2. The basic facts are all undisputed. Paternity is

admitted. Divorce of the parents is also admitted. Divorce was

effected on mutual consent. In such divorce agreement, there is

a stipulation that an amount of Rs.250/- per mensum shall be

paid by the petitioner to his divorced wife towards the expenses

of the child.

3. The child is sick. The child has a hole in his heart

valve. He had to undergo surgery. The petitioner, the father of

the child, did not allegedly meet any expenses and this allegedly

obliged the mother of the child to come before the court with an

application for maintenance at the rate of Rs.2,000/- per

mensum.

3. The application was resisted. It appears that the

contention was that the claim is excessive and that it is contrary

R.P.(F.C)No.5/08 2

to the stipulations in the written agreement at the time of

divorce. The mother of the child herself is examined as PW1.

Exts. A1 to A5 were marked. They are documents to show the

illness of the child and the expenses incurred. The petitioner

examined himself as RW1. He proved Exts.B1 to B3. His

attempt was to show that the amounts shown in the agreement

at the rate of Rs.250/- per mensum was being promptly paid by

him.

4. Significantly and surprisingly, the agreement of

divorce was not produced before the Family Court. The

petitioner has annexed the said agreement to this petition as

Annexure A1. To save all unnecessary controversies, I shall

assume that Annexure A1 can now be accepted. The short

question is whether Annexure A1, even if admitted, would justify

the contention of the petitioner that he is not liable to pay any

amount in excess of Rs.250/- per mensum as agreed in Annexure

A1.

5. The learned counsel contended that even a statutory

right can be waived. Terms of Annexure A1 does not in any way

show that the child is barred or estopped from claiming any

higher amount in future. At the time the agreement was entered

R.P.(F.C)No.5/08 3

into in September 2004, it appears that the lady was satisfied if

an amount of Rs.250/- per mensum were paid to the child. That

stipulation cannot be said to amount to any waiver or surrender

of the rights of the child. Moreover, it must be noted that the

surrender claimed is of the rights of the minor child and any

materials in support of such surrender has to be very carefully

and strictly considered. I am satisfied that even if Annexure A1

(the non-production of which before the Family Court is not

satisfactorily explained) is accepted, that cannot justify the

contention that the petitioner for all time to come is not liable to

pay anything in excess of Rs.250/- per mensum.

6. We now come to the quantum. An amount of

Rs.1,500/- is directed to be paid. Child is aged about five years

and it is not disputed that the child is sick, has a hole in his

heart, is obliged to undergo surgery and he will have to be on

long term on medication. The petitioner is shown to be an

autorickshaw driver. The petitioner has subsequently re-

married, it is contended. I am not persuaded that by invoking

the powers of superintendence and correction, the quantum

fixed by the courts below – Rs.1,500/- per mensum for such a

child from such a father does reserve interference at all.

R.P.(F.C)No.5/08 4

Challenge raised must in these circumstances fail.

7. A contention has been raised that the common

disposal of an O.P claiming past maintenance under the civil law

and an M.C under Section 125 Cr.P.C is not justified in law. In

an appropriate case, that question can later be considered; but I

am certainly satisfied that this is not a fit case where the revision

deserves admission to consider that question.

8. This Crl.R.P is in these circumstances dismissed. I

may hasten to observe that no observations in this Crl.R.P shall

be reckoned as a fetter on the right of the petitioner to challenge

the directions regarding past maintenance in the O.P.

(R.BASANT, JUDGE)
jsr

R.P.(F.C)No.5/08 5

R.P.(F.C)No.5/08 6

R.BASANT, J

C.R.R.P.No.

ORDER

21ST DAY OF JULY 2006

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