IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 RPFC.NO. 97 OF 2006() -------------------------------- MC.1/2005 OF , FAMILY COURT, KASARGOD .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- O.N.KASIM RAVUTHAR, (NOW AGED 74 YEARS), SEEMALAYAM, KALLUVETTAM KUZHI, P.O.KULATHUPUZHA, KOLLAM DISTRICT. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): PETITIONERS 1 & 2 ---------------------------------------------------- 1. PERUNKULAM RABIYA, D/O.KUNHIMOIDEENKUTTY VENGAPPARA, KODAKKAD VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. 2. ABDUL KAREEM, REP: BY GUARDIAN MOTHER 1ST PETITIONER., DO. DO. ADV. SRI.T.K.VIPINDAS FOR R1 & 2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P(F.C.) NO.97 OF 2006 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of June, 2009 O R D E R -------------- At a time when petitioner was working in the Excise Department (Circle Inspector, according to respondent No.1 and Guard, according to the petitioner) he was deputed to a distillery unit at Cheemeni. While being there he developed intimacy with respondent No.1 who was his neighbour at Cheemeni and consequent to that, respondent No.1 gave birth to respondent No.2, petitioner not disputing that he is the father of respondent No.2. In the year 2005 at a time when respondent Nos.1 and 2 were aged 38 years and 17 years respectively, and petitioner was aged 70 years respondents claimed maintenance from him at the rate of Rs.1,000/- each per month. They contended that petitioner married respondent No.1 in accordance with custom of the Community on 25.4.1983, they stayed together as husband and wife for about 10 years and during that time respondent No.2 was born in the wedlock. Thereafter petitioner was not heard of. After 7 years respondent No.1 met petitioner at his native place at Kulathupuzha where Ext.D1, agreement was executed on 23.6.2000 as per which petitioner paid Rs.1,25,000/- by cheque and Rs.5,000/- was paid in cash towards past maintenance. Respondents stated that R.P(FC) No.97 of 2006 -: 2 :- thereafter petitioner did not pay any amount towards maintenance. Petitioner denied that there was no valid marriage between him and respondent No.1 while claiming illicit intimacy with her which resulted in the birth of respondent No.2. He claimed that it was in full and final settlement of the claim of respondents that payment was made by petitioner as per Ext.D1. He also expressed his inability to maintain the respondents while asserting that respondents have landed property which is given for cashew cultivation on rent and hence respondents are capable of maintaining themselves. Both sides adduced evidence. Court below was inclined to accept the version of respondents regarding marriage, held that payment as per Ext.D1 is only towards past maintenance and that statutory right of respondents cannot be relinquished by an agreement. Court also found that respondents are not able to maintain themselves and directed petitioner to pay maintenance at the rate of Rs.1,000/- each per month to the respondents. That order is under challenge . 2. Learned counsel for petitioner contended that so far as respondent No.1 is not proved to be the lawfully wedded wife she is not entitled to get maintenance from the petitioner. Further contention is that Ext.D1 is executed under coercion and at any rate it disclosed that in full and final settlement of all claims respondents have received Rs.1,30,000/- as referred to therein and hence R.P(FC) No.97 of 2006 -: 3 :- respondents are not entitled to get future maintenance. It is further contended that respondent No.1 is having sufficient means and is not entitled to get maintenance. Learned counsel placed reliance on the decision in Deb Narayan Halder v. Anushree Halder (2003) 11 SCC 303) and Savitaben Somabhai Bhatiya v. State of Gujrat (AIR 2005 SC 1809). Counsel for respondents would contend that existence of valid marriage is proved and that the amount paid as per Ext.D1 is towards past maintenance. It is also contended that there is no evidence to show that respondent No.1 has sufficient means to maintain herself. 3. That there was an affair between petitioner and respondent No.1 when the former was working at Cheemeni, native place of respondent No.1 is not disputed. According to respondent No.1 for about 10 years after marriage on 25.4.1983 herself and petitioner lived together as husband and wife. Exhibit A1 is the certificate issued by the Secretary of Juma Ath Committee of respondent No.1 and Ext.A2 is the photocopy of the relevant page of marriage register. These documents are proved by P.W.2, Secretary of Juma Ath. There is reference to the marriage of petitioner with respondent No.1. It is true that P.W.2 was not the Secretary of the Committee as on the date of the marriage and as per his version the R.P(FC) No.97 of 2006 -: 4 :- Secretary during that time was alive on the date of examination but he has not been examined. There is no reason to doubt the genuineness of Exts.A1 and A2. These documents have come from proper custody and nothing is brought out to disbelieve Exts.A1 and A2. Exhibit D1 which is admittedly executed by petitioner in the year, 2000 refers to there being a marriage between himself and respondent No.1 in accordance with the customary rites. True, petitioner has a case that the said document was executed under threat and coercion in a party office at Kulathupuzha. R.W.2 is a close relative of respondent No.1. R.W.3 is the document writer. Their evidence is, and it is not disputed by respondent No.1 also that Ext.D1 was executed in a party office at Kulathupuzha in the presence of about 25 party activists apart from relatives of respondent No.1. But from the mere fact that party activists were present there, no inference is possible that petitioner was under threat or coercion. It is important to remember that Ext.D1, agreement remained in force right from its execution on 23.6.2000 and no attempt was made by petitioner to challenge Ext.D1 on the grounds pleaded by him. He was trying to take advantage of Ext.D1 to the extent that Ext.D1 refers to payments allegedly made by him. Hence petitioner cannot challenge Ext.D1 at this stage. There is sufficient evidence to come to the conclusion that there was a valid marriage between petitioner and respondent R.P(FC) No.97 of 2006 -: 5 :- No.1. Enquiry under Section 125 of the Code of Criminal Procedure is only of a summary nature. It was open to the petitioner to prove the alleged invalidity of marriage as claimed by him in appropriate proceedings which he has not done in spite of the fact that the marriage was on 25.4.1983. 4. Now I shall come to the question whether respondents are entitled to get maintenance. So far as Ext.D1 is concerned, contention is that entire liability has been discharged by paying Rs.1,30,000/-. According to respondents payment as per Ext.D1 is towards past maintenance while petitioner would contend that it absolved him even from future liability. So far as the claim that respondents have relinquished their right for future maintenance is concerned it has been held by this Court in Sadasivan Pillai v. Vijayalakshmi (1987(1) KLT 381) and Malathi v. Sethumadhavan (2003 (3) KLT SN Case No.142 at page 112) that statutory right of the wife and children for future maintenance cannot be relinquished by an agreement which if executed, will be opposed to public policy. Therefore it cannot be contended that respondents have relinquished their right as per Ext.D1. On the other hand consistent case of respondents and evidence let in by respondent No.1 as P.W.1 is that it is towards past maintenance that the payment was made. It is to be R.P(FC) No.97 of 2006 -: 6 :- noted that petitioner has no case that at any time after marriage he had maintained respondents. Even as per the evidence of P.W.1, herself and petitioner lived together only for 10 years (till about 1993) and for the next 7 years until Ext.D1 of the year 2000 respondents were neglected. That version of respondents is consistent with their contention that the payment made as per Ext.D1 was towards past maintenance. 5. It is then contended by learned counsel that Ext.D1 would show that petitioner and respondent No.1 are living separately by mutual consent and hence in view of Sec.125(4) of the Code respondent No.1 is not entitled to maintenance. 6. Provision of law relied on by the learned counsel says that a wife who is living in adultery or without any sufficient reasons refuses to live with her husband or if they are living separately on mutual consent is not entitled to get maintenance from her husband. In Ext.D1 it is stated that petitioner and respondent No.1 were not cohabiting for about seven (7) years, and are living separately and they are not able to continue marital relationship. In the circumstances they have executed Ext.D1. Court below found and I agree, that Ext.D1 is not an agreement as per which respondent No.1 and petitioner are living separately by mutual consent. It only recognised the factual situation admitted by both sides that since R.P(FC) No.97 of 2006 -: 7 :- they are unable to continue the marital relationship they are living separately. They have sated only their difficulty in continuing the relationship. It is not a case of petitioner and respondent No.1 agreeing to live separately as per Ext.D1. 7. It is then contended by learned counsel that at any rate evidence of respondent No.1 as P.W.1 and her relative as R.W.2 would show that respondent No.1 has sufficient means. According to R.W.1, respondent No.1 has landed properties which are given on rent for cashew cultivation and she is getting substantial income from there. P.W.1 denied that suggestion but admitted that she is having 69 cents of land. She would say that there is no income from that property. Court below was not inclined to accept the contention of P.W.1 as such in that regard but observed that the fact of P.W.1 having 69 cents of land would be taken into account while considering quantum of maintenance. It is not as if the court below was oblivious of the contention raised by the petitioner that respondent No.1 is having 69 cents of land in her possession. Court below has taken that aspect into consideration while assessing amount payable to respondents. This is clear from the fact that to respondent No.1 aged 38 years and to respondent No.2 aged 17 years at the time of application maintenance allowance has been awarded at the rate of Rs.1000/- each. The fact of respondent No.1 having 69 cents in her R.P(FC) No.97 of 2006 -: 8 :- possession was taken into account by the court below. 8. So far as quantum of maintenance awarded to respondent No.2 aged 17 years is concerned what is awarded is only Rs.1,000/- per month. That cannot be said to be excessive. According to respondent No.1 petitioner was working as Circle Inspector in the Excise Department at Cheemeni during the time he married her. True, petitioner denied that and claimed that he was only a Guard at the relevant time and according to him, he is getting only Rs.1,500/- towards pension. He did not produce any document to substantiate that contention. It has come in evidence that petitioner has another wife and three children in her. Court below was justified in holding that petitioner has sufficient means to pay maintenance. 9. Lastly it is contended by learned counsel that at any rate there is no justification in court below awarding maintenance to the respondents from the date of application. Learned counsel placed reliance on the decision of the Apex Court in Samaydin v. State of U.P. (2001 (2) KLJ (NOC) 1) Counsel for respondents would place reliance on the decision in Lakshmikutty Amma v. Balan Pillai (1989 (2) 503). I shall advert to these decisions. 10. In Lakshmikutty Amma's case a learned Single Judge of this Court observed that it is within the power of the court ordering R.P(FC) No.97 of 2006 -: 9 :- maintenance to direct payment either from the date of application or from the date of order or as circumstances warranted. That decision only referred to the power of the court. Apex Court in Samaydin's case stated that in the absence of special reasons to be recorded, payment of maintenance must be from the date of the order. I am not inclined to think that merely for the reason that court below did not state special reasons for ordering maintenance from the date of application, respondents are not entitled to get maintenance from that date. It would be sufficient if there are materials on record from which revisional court could be satisfied that maintenance from the date of application is justified. I went through the order sheet of the court below and find that there was no attempt on the part of petitioner to prolong the proceedings. At the earliest time he filed objection. Petitioner had not obtained any adjournment of the case. On the other hand request was by the respondents for time to adduce evidence. If that be so, I do not find reason to support the order of the court below that maintenance should be paid from the date of application. Resultantly, this revision is allowed to the extent that maintenance would be payable to the respondents only from the date of order. In other respects order passed by the court below is confirmed. R.P(FC) No.97 of 2006 -: 10 :- The amount if any deposited in the court below as per order of this Court shall be withdrawn by the respondents and adjusted towards the amount due to them. Criminal Miscellaneous Petition No.4336 of 2006 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv