IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 AS.No. 722 of 1998(A) --------------------- OS.349/1994 of PRL.S.C.,THALASSERY .................... APPELLANT(S): DEFENDANT: -------------------------------------------- MAKRERI PRAVEEN KUMAR, S/O.PUTHUVOTH PADMAVATHI, BALANILAYAM, PATHAYAKUNNU, POOKKODE P.O., KUTHUPARAMBA. BY ADVS. SRI.T.A. RAMADASAN, SRI.K.M.SATHYANATHA MENON, SRI.CIBI THOMAS. RESPONDENT(S): PLAINTIFF: --------------------------------------------- K.P. SHEEBA, D/O.SUKUMARAN, VALIYAPARAMBATH HOUSE, MADAPEEDIKA, KODIYERI, TELLICHERRY TALUK. BY ADV. SRI.GRASHIOUS KURIAKOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.5939/1998 IN AS.NO.722/1998 DISMISSED 13/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. No. 722 OF 1998 = = = = = = = = = = = = = = = Dated this the 13th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thalassery in O.S.349/94. The suit is one for realisation of the amount due as past maintenance from 1-8-91 to 31-7-91. The trial court on a consideration of the materials has granted a decree for Rs.21,600/- as past maintenance and at the rate of Rs.600/- as future maintenance per month from the date of suit till remarriage of the plaintiff or on her death with costs of the suit. Interest was also provided with 6%. 2. Now it has to be stated that the unfortunate couple got married on 19.5.91 and immediately fell out and ultimately the wife A.S. No. 722 OF 1998 -2- moved an application for restitution of conjugal rights and the husband a petition for divorce. The wife's petition was allowed and the husband's petition was dismissed. Now parties are living separately at the time of the inception of the suit. 3. It has to be stated that the allegation in the plaint is that the members of the family of the husband treated her with cruelty that made her life miserable and therefore she had to live separately. Meanwhile it has to be stated that the wife moved an application for maintenance before the learned Magistrate Court and the Magistrate Court as per Ext.A2 dated 12.5.94 ordered maintenance at the rate of Rs.300/- per month from the date of order. The maintenance case was filed on 5.2.93 and the order was passed on 12.5.94. Both the husband A.S. No. 722 OF 1998 -3- and wife were examined and the wife had settled the matter restricting her maintenance at the rate of Rs.300/- per month from 5.2.93. So with both her eyes open she had entered into a compromise and got an order in her favour and thereafter she moves an application on the other side for past maintenance as well as enhanced maintenance by Rs.600/- per month. I feel the tactics adopted by the plaintiff is not proper. Since the plaintiff had relinquished her right to get any maintenance from the date of petition till the date of order she cannot again claim past maintenance also during that period. Therefore her entitlement for maintenance will be from 1—8-91 to 5-2-93, i.e. 18 months. Since the quantum of Rs.300/- is arrived at for the period subsequent to the same I am inclined to grant maintenance at the rate of Rs.600/- as A.S. No. 722 OF 1998 -4- past maintenance for 18 months i.e. from 1-8-91 to 5-2-93 which would come to Rs.10,800/-. Similarly when the party has settled the matter of her on accord she cannot make use of another platform to defeat that settlement. Therefore I feel the future maintenance has to be restricted to Rs.300/- only with another rider that if circumstances permit and if S.127 Cr.P.C. permits she can move for variation of maintenance under the Cr.P.C. Meanwhile the learned counsel for the appellant also submitted that the parties have settled the matter. If the parties have settled the matter necessarily the party will not put this decree into execution and disposal of this appeal will never stand in the way of settlement. Therefore the appeal is disposed of by modifying the decree and grant a decree for past maintenance of Rs.10,800/- with A.S. No. 722 OF 1998 -5- 6% interest from the date of suit and future maintenance at the rate of Rs.300/- subject to the right of the plaintiff to move for variation u/s 127 Cr.P.C. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 722 OF 1998 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 722 OF 1998 = = = = = = = = = = = J U D G M E N T 13th July, 2010.