IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 RPFC.No. 39 of 2008() --------------------- MC.199/2006 of Family Court, Ettumanoor .................... : REVISION PETITIONER/COUNTER PETITIONER: ------------------------------------ SABUSON @ ABRAHAM, VARACHERIYIL (H) ALLAPARA, ALANADU KARA, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.B.KRISHNA MANI SRI.JOSEPH T.JOHN RESPONDENT: PETITIONER: ------------------------ LOID SABU @ THOMAS (MINOR) REPRESENTED BY GUARDIAN AND MOTHER SHERLY FELIX @ MARY, D/O.LATE VARKEY, AKKAMATTATHIL (H), MARANGOLY KARA, NJEEZHOOR VILLGE, KOTTAYAM DIST. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.39 of 2008 ---------------------------------------- Dated this the 14th day of February 2008 O R D E R This revision petition is directed against an order passed by the Family Court under Section 125 Cr.P.C directing the petitioner to pay maintenance at the rate of Rs.500/- per mensum to the claimant admittedly, his minor son. 2. Paternity is admitted. The petitioner has divorced the mother of the child. Prior to the divorce (evidently by mutual consent) the parties were before the Family Court in two matters. O.P.No.498/98 was filed by the mother of the child claiming amounts by way of return of amounts and ornaments of hers by the petitioner herein. There was also a case filed under Section 125 Cr.P.C as M.C.No.151/98 claiming maintenance for the petitioner's child as also its mother. The disputes were settled as per an agreement dated 09/02/2001 which is produced as Ext.P2. A copy of the same has been placed before me also. 3. The guardian of the child, its mother claimed that the child is now unable to maintain itself and that the petitioner, the father is refusing and neglecting to pay maintenance to him. The R.P.F.C.No.39/08 2 petitioner resisted the claim under Section 125 Cr.P.C with the plea that the child is not entitled for any maintenance for life, its mother having entered into Ext.B2 agreement and she having withdrawn a petition filed under Section 125 Cr.P.C claiming maintenance. The parties went to trial on these contentions. The mother of the child examined herself as PW1. The petitioner examined himself as CPW1. Exts.B1 and B2 were marked. Ext.B1 is the order under which the earlier M.C was disposed of in terms of Ext.B2 compromise. Ext.B2, as stated earlier, is the agreement dated 09/02/2001. 4. The short question which the court was called upon to consider hence was whether Ext.B2 agreement is a sufficient defence to the claim under Section 125 Cr.P.C raised by the child through its mother now. That is the only point that fell for consideration. Of course, there were contentions regarding the quantum of maintenance payable. 5. I have been taken through the stipulations in Ext.B2. It must first of all be seen specifically that clause 1 of the said agreement clearly stipulates that an amount of Rs.1,00,000/-, which is the only amount paid under that agreement is paid for R.P.F.C.No.39/08 3 withdrawal of O.P.498/98 in which the mother of the child had claimed amounts from the father towards ornaments etc which were allegedly retained by him. The stipulations in clause 1 leaves absolutely no doubt that the payment was made only as consideration for withdrawal of O.P.No.498/98 under which money was claimed by the mother of the child. Of course, later in clause 2, it is stipulated that the child must remain in the custody of the mother thereafter and that the mother must withdraw M.C.No.151/98 filed claiming maintenance for herself and the child. It is further stipulated that hereafter the wife should not claim any maintenance for herself or the child. There are other stipulations in the agreement which say that both cases are agreed to be withdrawn on receipt of this amount of Rs.1,00,000/-. 6. Rs.1,00,000/- was admittedly paid later and both cases were withdrawn. The maintenance case was dismissed as per Ext.B1 order. 7. To me, it is of crucial significance that no amount has admittedly been paid for the maintenance of the child under Ext.B2 agreement. The amount, that was paid was only for R.P.F.C.No.39/08 4 discharge of the liability which was sought to be asserted and claimed in O.P.No.498/98. The mother of the child, having settled that part of the claim, had of course agreed that the maintenance case shall be withdrawn and that thereafter the maintenance of the child must be managed by her and she shall not stake any claims for such maintenance. This stipulation, it is thus evident, is a bald stipulation unsupported by any consideration for the child. I must alertly note that the liability which is now contended to be given up under Ext.B2 is the statutory liability to pay maintenance under Section 125 Cr.P.C. If a father had made adequate provisions for the child's maintenance until he attains majority, certainly it can be contended that he is not liable to pay any amount thereafter for the maintenance of the child. But not so in this case. A total reading of Ext.B2 must eloquently convey that the amount was paid only for discharge of the liability which was sought to be asserted and claimed in O.P.No.498/98. The mother, having received that amount, made a bald undertaking that she shall withdraw the M.C and shall not hereafter claim any amounts for the maintenance of the child. That agreement must be held to be R.P.F.C.No.39/08 5 unsupported by any consideration and the petitioner, it has got to be held, had not provided any amount for the maintenance of the child. A stipulation like the one in Ext.B2 cannot be held as an effective shield against a claim under Section 125 Cr.P.C. There is no stipulation anywhere in Ext.B2 that any amount has been paid towards the maintenance of the child. The mere fact that the mother's claim for return of ornaments was settled by payment of Rs.1,00,000/-, or that the gullible mother stipulates that she will not hereafter claim any amount for the maintenance of the child cannot be held as sufficient defence or justification for claiming absolution from liability to pay maintenance under Section 125 Cr.P.C. The bald agreement which is clearly unsupported by any consideration, going by the stipulations in Ext.B2, cannot therefore help the petitioner to avoid the liability under Section 125 Cr.P.C. The conclusion of the court below that the petitioner is liable to pay maintenance is thus found to be eminently correct and just too. The same does not, at any rate, warrant interference. 8. The learned counsel for the petitioner further contends that the quantum of maintenance awarded is excessive. R.P.F.C.No.39/08 6 Rs.500/- per mensum is the amount awarded to be paid. The child was born on 26/1/1997, it is stated at the Bar. On the date of the order, the child must be aged about 9½ years. In any view of the matter, the direction to pay an amount of Rs.500/- per mensum to the child cannot be held to be excessive at all. The challenge raised against the quantum directed to be paid must also hence fail. 9. It would be harsh, insensitive and cruel for this court to send out an invitation to the respondent to come to this court and to contest this revision petition. This revision petition is without any merit even if Ext.B2 is accepted in toto. Hence I have taken the view that there is no merit in the prayer for admitting this revision petition and to extend an invitation to the hapless claimant to come before this court and contest this proceedings. 10. This revision petition is in these circumstances dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge R.P.F.C.No.39/08 7 R.P.F.C.No.39/08 8 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008