IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 RPFC.No. 418 of 2007() ---------------------- MC.305/2001 of FAMILY COURT, THRISSUR .................... REVISION PETITIONER/RESPONDENT: ---------------------------------------------------------- WILSON, S/O. DAVID, RESIDING AT NO.7B, CHIMAYA NAGAR, THONDAMUTHUR ROAD, VADAVALLIL, COIMBATORE-41. BY ADV. MR.N.P.SAMUEL RESPONDENT(S): PETITIONERS: ------------------------------------------------- 1. MINI, D/O. C.P.VARGHESE, CHITTILAPPILLY HOUSE, PORKULAM P.O., PAZHANJI VIA., THRISSUR. 2. MANOJ (MINOR), S/O. MINI, REPRESENTED BY MOTHER AND GUARDIAN, MINI, D/O. C.P.VARGHESE, CHITTILAPPILLY HOUSE, PERKULAM P.O., VIA. PAZHANI. R1 BY ADVS. MR.P.SANJAY, MR.A.PARVATHI MENON. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A. NO.10731/2007 IN RP(FC) NO.418/2007 DISMISSED 25/02/2010 SD/- M.N.KRISHHAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.418 OF 2007 ............................................. Dated this the 25th day of February, 2010. O R D E R This revision is preferred against the order of the Family Court, Thrissur in M.C.No.305/2001. The wife and son moved an application for maintenance against the husband and the family court awarded a maintenance of Rs.500/= to the wife and Rs.300/= to the child from the date of petition. It is against that decision, the husband has come up in revision. 2. Heard the learned counsel for the revision petitioner as well as the respondents. The learned counsel for the revision petitioner had raised two main questions namely (1) by virtue of an agreement executed between the parties, the wife has relinquished her right of maintenance and that she had received a consideration of Rs.23,500/= representing the settlement and therefore she is not entitled to maintenance. (2) If by any chance it is not accepted, that amount has to be taken note of for fixing the quantum of maintenance. 3. It is true that the family court has not considered : 2 : R.P.(F.C).No.418 OF 2007 the materials in the proper perspective. I feel that approach of the family court should have been in a better fashion. But with the help of the learned counsel and also after perusing the document, I find that the parties had entered into an agreement in this case on 29.9.2001 whereby the wife has received a sum of Rs.23,500/= and agreed that she is not entitled to receive any material objects or money from the husband. There is no recital regarding living separately by mutual consent or that relates to future maintenance. What ever it may be, it is seen that Rs.23,500/= is received by her. Even if it is argued that this agreement will put an end to the claim of maintenance, I am afraid that the said contention cannot be accepted for the following reasons: 4. Under Section 125(4) of the Cr.P.C. the court can refuse maintenance to the wife on three grounds (1) that she is living in adultery (2) that without any reasonable cause is living separately and (3) they live separately by mutual consent. Here it is seen from the materials that there is no allegation regarding adultery but living separately by : 3 : R.P.(F.C).No.418 OF 2007 judicial separation. They are not living separately by mutual consent but by an order of the court. Therefore it has to be held that exception to Section 125 of the Cr.P.C is not established in this case and further it is the settled proposition of law that the statutory right cannot be defeated by the parties by entering into an agreement. Therefore I find that the wife is entitled to maintenance. 5. The second point urged by the learned counsel for the revision petitioner requires some consideration. A consolidated sum of Rs.23,500/= has been paid. There is no recital in the agreement that the said amount is paid on some other account which is in the form of value of ornaments or something else. Therefore if that amount is deposited and 9% interest is calculated, the total interest is about Rs.2,115/= which when divided by 12 will make a sum of Rs.175/=. So out of the order of maintenance of Rs.500/= if this Rs.175/= is deducted, the balance would come to Rs.325/= or in other words, the wife will be entitled to maintenance at the rate of Rs.325/= and the son at the rate of Rs.300/= per month. This will not stand in the way of : 4 : R.P.(F.C).No.418 OF 2007 variance of the order, if it is permissible under Section 127 of the Cr.P.C. 6. Therefore the revision is disposed of by modifying the order of maintenance at Rs.325/= to the wife and Rs.300/= to the child payable from the date of petition. Any amount paid or deposited shall be adjusted and the balance need be paid. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 5 : R.P.(F.C).No.418 OF 2007