IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 Mat.Appeal.No. 536 of 2009() ---------------------------- OPHMA.551/2008 of FAMILY COURT, THIRUVALLA .................... APPELLANT(S): IST PETITIONER: ------------------------------ V.N.VIJAYAN, AGED 44 YEARS, S/O.NANU, VALIYAVEETTIL HOUSE, ERUVELLIPRE MURI, THIRUMOOLAPURAM P.O., THIRUVALLA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.P.HARIDAS SMT.SIMLA PRABHAKARAN SMT.SHIJIMOL M.MATHEW SRI.RENJI GEORGE CHERIAN RESPONDENT(S): 2ND PETITIONER: ------------------------------ SHEEBA VIJAYAN, AGED 30 YEARS, W/O.VIJAYAN, KOCHUTHUNDIYIL PUTHEN VEETTIL, PERINGALA, MULAKKUZHA VILLAGE, CHENGANNUR TALUK. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** Mat.Appeal No.536 of 2009 ********************* Dated this the 11th day of June, 2010 JUDGMENT BASANT, J. The appellant has come to this Court aggrieved by what he terms to be, unnecessary observations which have crept into the impugned judgment. He prays that the one sentence in the said impugned judgment may be ordered to be deleted. 2. The petitioner and the respondent were spouses. One child was born in the wedlock. There was acrimony in their matrimony and proceedings were initiated before the Family Court as O.P.No.318 of 2007, which was a petition filed by the respondent/wife claiming return of amounts, ornaments etc. from the appellant herein. The parties ultimately settled all their outstanding disputes. A compromise petition was filed before the court - Family Court, Thiruvalla. A copy of the same is produced as Annexure-1. The terms of Annexure-1 were complied with and accordingly O.P.(HMA) No.551 of 2008 for dissolution of marriage by mutual consent under Section 13 B of the Hindu Marriage Act was filed. That application was allowed Mat.Appeal No.536 of 2009 2 by the impugned judgment. However, the impugned judgment clothes with the following sentence. “The right of the child born out of the wedlock to claim maintenance from the 1st petitioner is reserved.” 3. The learned counsel for the appellant submits that this observation by the court below was totally unnecessary and not justified. No party had claimed such a direction. In fact, as per the terms in Annexure-1 joint compromise settlement, an amount of Rs.1,40,000/- had been paid as a lump sum amount in full settlement of the claim for maintenance of the child including the amounts payable in M.C.No.111 of 2004. The court below without taking note of the said terms in the joint compromise settlement filed earlier in O.P.No.318 of 2008 has made such an observation. The said observation now causes difficulties as the appellant is unable to move the Family Court for modification of the order of maintenance already passed under Section 125 Cr.P.C. In these circumstances, it is prayed that the said observation may be deleted and this appeal allowed to the above limited extent. 4. Notice was ordered to the respondent. The respondent has not entered appearance. The learned counsel for Mat.Appeal No.536 of 2009 3 the appellant has satisfied us that Annexure-1 joint compromise settlement had been filed and in compliance with clause (a) of the said agreement, an amount of Rs.1,40,000/- has been paid by demand draft. If the said payment has been made, we are of the opinion that the sentence impugned extracted above appearing in the impugned judgment is totally unnecessary. 5. In the result, this appeal is allowed in part. The observation in the operative portion of the impugned judgment that “The right of the child born out of the wedlock to claim maintenance from the 1st petitioner is reserved.” is deleted. It shall be open to the appellant to seek appropriate relief under Section 127 Cr.P.C to modify the order passed earlier in M.C.No.111 of 2004. By way of abundant caution, we make it clear that this judgment will not in any way fetter the rights of the child if any to make appropriate claim under law hereafter. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/