IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 RPFC.No. 5 of 2008() -------------------- MC.682/2006 of Family Court, Malappuram .................... : REVISION PETITIONER/RESPONDENTS ------------------------------------------------ KAMMUTTAKATH ABDUL SALEEM, 32 YEARS, S/O.KUNHI MUHAMMED, P.O.UNNIALUNGAL, POOKKAYIL, VIA. TIRUR. BY ADV. SRI.C.V.MANUVILSAN SRI.G.SUDHEER SRI.P.K.KHALEEMUDHEEN SRI.P.C.ANILKUMAR RESPONDENTS: PETITIONERS ------------------------ 1. POKKUVINTE PARAKKAL KADEEJA, D/O.HAMZA, 25 YEARS, OTUMMAL BEACH P.O. PARAPPANANGADI, PARAPPANANGADI AMSOM DESOM. 2. SHAHANAS BABU, 4 YEARS, (MINOR), (MINOR PETITIONERS ARE REP. BY GUARDIAN MOTHER IST RESPONDENT). BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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