Petitioner in M.C.No.317/2013 on the file of the Family Court, Attingal, is the revision petitioner herein. The revision petitioner filed this application for maintenance under Section 125 of the Code of Criminal Procedure .
2. It is alleged in the petition that, the respondent herein married the revision petitioner on 21.02.1982 and thereafter he desserted her from 2006 onwards. He filed O.P.(HMA)1209/2005 for dissolution of marriage and on the basis of a compromise and a decree was obtained, in which, the respondent had agreed to pay ₹6,000/- per month as maintenance to the petitioner. As per the terms of the compromise, petitioner vacated the house in which she was residing and now she is residing in a rented house of ₹4,000/- per month. The compromise was obtained by fraud and he had agreed to meet the expenses of the eduction of the daughter and given her in marriage, but he had not fulfilled the same. She is having various ailments and spent more than ₹1,00,500/- for her treatment.
She has no other income and it is very difficult to live with the income, that has been provided. Now the respondent is working as Manager, State Bank of Travancore, and getting a monthly income of ₹80,000/- and he married another lady and she requires ₹20,000/- per moth for her maintenance.
3. Respondent appeared and filed counter stating that, she is a divorced wife and she had an adulteress living with one Ramachandran and he filed O.P.No.452/2004 before the Family Court, Thiruvananthapuram, for a decree for divorce and that was transferred to Family Court, Nedumangad, where it was refiled as O.P.(HMA)No.1209/2005 and the matter was compromised and ₹25,000/- was given as lump sum and also another amount of ₹ 5,000/- was paid and agreed to be pay ₹6,000/- for her maintenance, till he attains the age of 60 years and now he is paying the amount regularly. The respondent is engaged in manufacturing of pickles and getting a monthly income of ₹15,000/-. Her son is employed in Air Port, Thiruvananthapuram, and getting a monthly salary of ₹25,000/- and her daughter is also settled.
Petitioner is having 2nd wife and children and he has to maintain them. So the petitioner is not entitled to get maintenance. So he prayed for dismissal of the application.
4. The petitioner was examined as PW1 and no evidence was adduced on the side of the respondent. After considering the evidence on record, the court below found that the agreement to pay maintenance for a particular period and they are living separately as per the compromise and so she is not entitled to get maintenance, relying on the decision reported in (2013(1) KHC 812) Rajesh R. Nair v. Meera Babu and dismissed the application stating that, the amount of ₹6,000/- now payable is reasonable and she can very well file application for maintenance from her children. Aggrieved by the same, the present revision has been filed.
5. The counsel for the revision petitioner submitted that, the compromise was in the year, 2006 and at that time, an amount of ₹6,000/- was fixed as maintenance for a particular period, but she is not able to maintain with that amount. He had not fulfilled the terms of compromise of educating the children and giving the daughter in marriage etc., also. Now she is suffering from illness and she requires more amounts for treatment also. The reasons stated by the court below for dismissing the application is not correct. The dictum has not been properly understood by the court below.
6. On the other hand, the counsel for the respondent submitted that, in order to maintain an application under Section 125 of the code of Criminal Procedure, it must be proved by the petitioner that, he had neglected to maintain her, but he is the paying maintenance at the rate agreed and it was a compromise decree by which the divorce was obtained and they are living separately. He had relied on the decision by the court below for that purpose.
7. It is an admitted fact that, now the status of the parties has been changed, as the revision petitioner is a divorced wife of respondent. It is true that, in an earlier proceedings in 2006, the respondent filed a petition for divorce, which was later settled between the parties and on the basis of the compromise, an application under Section 13(B) of the Hindu Marriage Act was filed, in which he had agreed to pay maintenance at the rate of ₹6,000/- per month, till he attains the age of 60 years. But the case of the revision petitioner was that he will have to pay the amount at that rate. None of the parties have produced the compromise, either before the court below or before this court as well. So it is not known, whether the entire right has been forfeited by the parties. Even assuming so, in the same decision relied on by the court below, it was observed that, forfeiting the statutory right for claiming maintenance is against public policy and it is void. If that be the case, even if there is an agreement between the parties that, they will not claim future maintenance, that will not affect the right of the divorced wife to claim maintenance later, if the circumstances shows that the maintenance amount provided is not reasonable or sufficient to meet her requirements. In this case, though the application have filed under Section 125 of the Code of Criminal procedure, the reasons stated by the petitioner in the petition shows that it is a claim for enhancement as the amount paid fixed as maintenance in the earlier proceedings is not sufficient to meet her requirements. Further she had gone to the witness box and deposed about her difficulties to maintain herself. Those things were not discredited by cross examining her as well. Further no evidence has been adduced on the side of the respondent to prove that she is having any income other than the maintenance provided to maintain herself. The reasons stated by the court below that she can apply for maintenance against her children appears to be unjustifiable. When the statute provides the right to get maintenance from her ex-husband that right cannot be taken away on the ground that she has got other option to get the maintenance from the children as well. It was also brought out that, daughter is married and living with husband. There is no evidence to show that she is employed. Further the evidence of PW1 that he is suffering from illness is also not discredited by producing any other evidence by examining RW1. He had not gone to the witness box and he did not produce his salary certificate as well. One can guess, as to what will be the income of a Branch Manger of a Bank. Any how, he will be getting much more than what was getting at the time when the maintenance amount of ₹6,000/- fixed between the parties, when they separated by filing a joint petition. So under the circumstances, the reasons stated by the court below for dismissing the application is against law and the same is liable to be set aside. Considering the circumstances, he is paying ₹6,000/- per month and also considering the status of the parties, this court feels that, the amount can be enhanced to ₹8,000/- and he can be directed to pay the amount from the date of order, considering the circumstances of the case. So the revision is allowed and the respondent is directed to pay maintenance at the rate of ₹8,000/- per month to the revision petitioner from today, that will meet the ends of justice.
With the above observation and direction, the revision is allowed.
Sd/-
K. RAMAKRISHNAN, (Judge) // True Copy // P.A. to Judge ss