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
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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
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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.
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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
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R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006