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Vikraman Nair vs Aishwarya on 8 October, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940

Mat.Appeal.No. 841 of 2014

AGAINST THE JUDGMENT IN OP 582/2013 of FAMILY COURT, ATTINGAL
DATED 04-03-2014

APPELLANTS:

1 VIKRAMAN NAIR
AGED 55 YEARS
S/O.SUKUMARAN NAIR, HAVING PERMANENT ADDRESS
ATPALAZHI, MURIKKUMPUZHA P.O., THIRUVANANTHAPURAMPIN
– 695 302 EMPLOYED AS SHARJAH, NOW RESIDING ATPALAZHI
MARANGATTUKONAM, KATTAYIKONAM P.O.,THIRUVANANTHAPURAM
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KALA.S,
W/O.VIKRAMAN NAIR, PALAZHI,MURIKKUMPUZHA P.O.,
THIRUVANANTHAPURAM, PIN – 695 302. (Died)

ADDL.2 KALA.S, AGED 50 YEARS,
W/O. LATE VIKRAMAN NAIR,
RAVIMANDIRAM, NEDUMUDY,
ALAPPUZHA DISTRICT, PIN 688 503.

(IMPLEADED AS ADDL.APPELLANT NO.2 AS LEGAL
REPRESENTATIVE OF THE DECEASED APPELLANT AS PER ORDER
DATED 16.01.2017 IN IA.NO.104/17 IN MAT.A.NO.841/18)

BY ADV. SRI.C.S.MANU

RESPONDENTS:

1 AISHWARYA
AGED 19 YEARS
D/O.RAJANI, KATTUVILAPUTHEN VEEDU,
VELIYOOR,THIRUVANANTHAPURAM PIN – 695 302.
Mat.Appeal No.841/2014
2

2 AKHILA
AGED 18 YEARS
D/O.RAJANI, KATTUVILAPUTHEN VEEDU,
VELIYOOR,THIRUVANANTHAPURAM PIN – 695 302.

3 RAJANI
AGED 37 YEARS
D/O.SARASAMMA PALAZHI, MURIKKUMPUZHA
P.O.THIRUVANANTHAPURAM PIN – 695 302.

BY ADVS.
SRI.T.K.ANANDA PADMANABHAN
SRI.M.BALAGOVINDAN

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2018,
THE COURT ON 08.10.2018 DELIVERED THE FOLLOWING:
“CR”

C.K.ABDUL REHIM

R.NARAYANA PISHARADI, JJ.
***************************
Mat.Appeal No.841 of 2014
———————————————–
Dated this the 8th day of October, 2018

JUDGMENT

R.Narayana Pisharadi, J

This appeal is filed challenging the judgment and decree

passed by the Family Court, Attingal in O.P.No.582/2013.

2. The appellant was the father of the first and the

second respondents and the husband of the third respondent. He

died during the pendency of the appeal. His legal representative,

his second wife, has been impleaded as additional second

appellant in the appeal.

3. The petitioners in O.P.No.582/2013, who are the first

and the second respondents in the appeal, shall be hereinafter

referred to as ‘the daughters’. The respondents in

O.P.No.582/2013 shall be hereinafter referred to as ‘the father’
Mat.A.No.841/2014
4

and ‘the mother’.

4. The minor daughters filed O.P.No.582/2013 against

their parents claiming Rs.1,17,000/- towards arrears of past

maintenance. They also claimed Rs.4,500/- each per month

from the parents towards future maintenance. The daughters

also claimed Rs.15,00,000/- each towards their marriage

expenses.

5. At the time of filing of the original petition by the

daughters, their parents had obtained a decree of divorce and

they had remarried.

6. The father filed counter statement in the case raising

mainly the following contentions. He had instituted

O.P.No.922/2005 against his wife, the mother of the petitioners,

for granting a decree of divorce. She had filed M.C.No.125/2006

against him claiming maintenance for herself and also for the

minor daughters. She had also filed O.P.No.1067/2005 against

him for return of gold ornaments and money. Due to the

intervention of mediators, the disputes between them were

settled. As a part of the compromise entered into between the
Mat.A.No.841/2014
5

parties, he executed settlement deed No.2466/2008 in favour of

the daughters in respect of 12 cents of property with a building

therein. Thereafter, he and the mother of the petitioners filed a

joint petition for divorce as O.P.No.1239/2008 and it was allowed

by the court. The daughters and their mother had agreed that

they will not claim any future maintenance from him. The

marriage expenses of the daughters could be met by selling the

property and the building gifted to them by him. He is working

abroad as a driver and his monthly salary is only Rs.40,000/-.

He had taken a loan from the bank and he had to pay

Rs.23,000/- per month towards repayment of loan. As he has

executed settlement deed in respect of the property in favour of

the daughters, he is not liable to maintain them.

7. The mother of the minor daughters filed a statement

supporting their claim against the father.

8. The original petition was filed by the daughters

through their maternal grandmother as the next friend. During

the pendency of the original petition, the daughters attained

majority and the next friend was discharged.
Mat.A.No.841/2014
6

9. During the trial of the case, PW1 was examined and

Exts.A1 to A3 documents were marked on the side of the

daughters. CPW1 was examined and Exts.B1 to B5 documents

were marked on the side of the father. The mother got herself

examined as CPW2.

10. The Family Court found that inspite of the compromise

entered into between the father and the mother in the earlier

cases and inspite of the execution of the settlement deed by the

father in favour of the daughters, he was bound to maintain

them. The Family Court granted a decree in favour of the

daughters as follows:

“a) The 1st respondent (father) is directed to

pay Rs.36,000/- (thirty six thousand) each as past

maintenance to each of the petitioners with interest

@ 6% per annum.

b) The 1st respondent (father) is also

directed to pay future maintenance to the petitioners

@ Rs.2500/- (two thousand five hundred) each from

the date they attained majority until the date of their
Mat.A.No.841/2014
7

marriage.

c) The 1st respondent (father) is directed to

pay Rs.5 lakhs (five) each towards the marriage

expenses of each of the petitioners.

d) Petitioners are allowed to recover the

above amounts from the 1st respondent and his

assets with a charge on the petition schedule

property.”

The appeal was filed by the father challenging the aforesaid

decree passed against him.

11. We have heard learned counsel for the additional

second appellant and also the first and the second respondents.

We have also perused the records.

12. The father had instituted O.P.No.622/2005 against his

wife (the mother) for granting a decree of divorce. The mother

had instituted O.P.No.1067/2005 against the father for return of

gold ornaments and money from him. She had also instituted

proceedings as M.C.No.125/2006 against the father claiming

maintenance from him for herself and for the two minor
Mat.A.No.841/2014
8

daughters. All these cases were settled between the father and

the mother and they executed an agreement of compromise and

they filed a joint petition for divorce and it was allowed by the

court.

13. Ext.P3 is the copy of the decree in O.P.No.1067/2005.

The compromise entered into between the father and the mother

forms part of the decree in that case. The terms of the

compromise are as follows:

“4. The respondent agreed to execute a

settlement deed of his entire 12 cents of land and the

double storied building situated therein in favour of

minor children namely Aiswarya and Akhila for the well

being of them and for their future life. The children

shall own and enjoy the property as per conditions

stated in the settlement deed.

5. The petitioner agreed that in the light of

transfer of the above property and the building in

favour of minor children the petitioner doesn’t want any

relief in O.P.1067/05 and M.C.125/06. The petitioner

also agreed that she doesn’t want any relief of past and
Mat.A.No.841/2014
9

future maintenance or any other claim and doesn’t

want any more expenses for matrimonial and other

incidental expenses of the children from the

respondent.

6. Petitioner and respondent herewith filed

application for divorce by mutual consent and all the

cases are settled.”

In the aforesaid compromise the petitioner is the mother and the

respondent therein is the father.

14. Ext.B2 is the copy of the judgment in

O.P.No.1067/2005. It shows that the aforesaid compromise was

ordered to be appended to the decree in that case. In other

words, the aforesaid compromise had become part of the decree

in that case.

15. Learned counsel for the appellant contended that as

per the terms of the compromise entered into between the

parties, the mother had agreed that she will not claim any relief

of past and future maintenance or any other claim from her

husband (the father). Learned counsel would contend that she
Mat.A.No.841/2014
10

had also waived the right to get marriage expenses and other

incidental expenses of the daughters from their father. Learned

counsel would submit that in the light of the compromise entered

into between the father and the mother and in the light of the

fact that the father had executed Ext.B4 settlement deed in

favour of the daughters gifting them 12 cents of property with a

building therein, the daughters are estopped from claiming

maintenance and marriage expenses from him.

16. As per the terms of the compromise entered into

between the father and the mother, the father had executed

Ext.B4 settlement deed in favour of the daughters in respect of

12 cents of property with a building therein. The compromise

entered into between the father and the mother is mentioned in

Ext.B4 settlement deed. It is also stated in Ext.B4 settlement

deed that the purpose of executing the settlement deed was to

meet the expenses of the future life of the daughters and their

maintenance and educational expenses and also towards the

share which they may get after his death.

17. The question now arises whether the execution of the
Mat.A.No.841/2014
11

settlement deed by the father in favour of the daughters gifting

them 12 cents of property with a building therein in terms of the

compromise entered into between him and the mother would

preclude the daughters from claiming maintenance and marriage

expenses from the father.

18. Section 20(1) of the Hindu Adoptions and Maintenance

Act, 1956 (hereinafter referred to as ‘the Act’) provides that a

Hindu is bound, during his or her lifetime, to maintain his or her

legitimate or illegitimate children and his or her aged or infirm

parents. Section 20(2) of the Act provides that a legitimate or

illegitimate child may claim maintenance from his or her father or

mother so long as the child is a minor. Section 20(3) of the Act

states that the obligation of a person to maintain his or her aged

or infirm parent or daughter who is unmarried extends so long as

the parent or the unmarried daughter, as the case may be, is

unable to maintain himself or herself out of his or her own

earnings or other property.

19. Section 20(1) of the Act enjoins upon a Hindu to

maintain his or her legitimate or illegitimate children. Section
Mat.A.No.841/2014
12

20(3) of the Act narrows down the legal obligation to maintain an

unmarried daughter in so far as she is unable to maintain herself

from her own earnings or property. A Hindu is under legal

obligation to maintain his unmarried daughter, in so far as such

unmarried daughter is unable to maintain herself from her own

source of income. This obligation arises from the relationship

between the parties. This obligation is personal and legal in

character (See Commissioner of Gift Tax v. Indira Devi:

1998 (2) KLT 501, Viswambharan v. Dhanya : 2005 (1)

KLT 708 and Ambika v. Aravindakshan : 2018 (1) KHC 32:

2018 (1) KLT 125). The right of a minor girl for maintenance

from parents after attaining majority till her marriage is

recognized in Section 20(3) of the Act (See Jagdish Jugtawat

v. Manju Lata: (2002) 5 SCC 422).

20. As per Section 3(b)(ii) of the Act, “maintenance”

includes, in the case of an unmarried daughter, the reasonable

expenses of and incident to her marriage. Even in case of

daughters who are grown up and living with mother and

maintained by mother who is employed and earning salary, they
Mat.A.No.841/2014
13

are entitled to get financial assistance from their father at the

time of their marriage (See Smt. Sneh Prabha v. Ravinder

Kumar: AIR 1995 SC 2170).

21. The obligation of a Hindu father to maintan an

unmarried daughther, who is unable to maintain herself, is

personal and legal in nature. Section 20 (3) of the Act recognises

that right. Is it a right which would get forfeited by virtue of an

agreement or compromise entered into between the mother

and the father?

22. When an agreement is entered into by the wife and the

husband, as a part of compromise filed in the court or otherwise,

whereby the wife relinquishes or waives the right to claim

maintenance in future from the husband, for herself or for the

minor children, such an agreement is opposed to public policy

and it does not preclude her from claiming maintenance under

Section 125 of the Code of Criminal Procedure. This is the

consistent view taken by various High Courts. It has been held

that statutory right which has been conferred on a person under

a public policy, cannot be waived by the said person by an
Mat.A.No.841/2014
14

agreement. It is also well settled that any contract which is

opposed to public policy is void under Section 23 of the Indian

Contract Act, 1872 and the same cannot be enforced in a court of

law. If the object or consideration of an agreement would defeat

the provisions of any law, and if it is against the public policy, the

agreement will be treated as unlawful and void. This is a matter

of public policy and not of an individual (See Ranjit Kaur v.

Pavittar Singh : 1992 Cri.L.J 262, Hanamant Basappa Choudhari

v. Laxmawwa: 2002 Cri.L.J 4397, Rajesh Kochar v. Reeta

Kumari: 2002 Cri.L.J 3357, Sushil Kumar v. Neelam: 2004

Cri.L.J 3690, Mahesh Chandra Dwivedi v. Manorma : 2009 Cri.L.J

139 and Varshaben Himantlal Vejani v. State of Gujarat: 2017

Cri.L.J 869).

23. As early as in 1961, this Court had held in Abubacker

v. Katheesa : 1961 KLT 581, that an agreement between the

father and the mother that on payment of a lump sum, the father

need not pay any further maintenance, is not binding on the child

because the obligation to maintain the child is statutory and the

parties cannot contract themselves out of it.
Mat.A.No.841/2014
15

24. In Seshi Ammal v. Thaiyu Ammal : AIR 1964 Mad

217, the question arose for consideration whether a Hindu wife,

who had agreed to receive maintenance at a particular rate,

binding herself not to claim a higher rate even if the

circumstances were to change, could maintain a suit for increase

of maintenance. The Madras High Court held that after all, the

true principle is that a person liable to maintain must do so and it

will be indeed inequitable for that obligation to be whittled down

by technical rules like res judicata and binding nature of a

contract.

25. In Damodaran v. Lakshmikutty Amma: 1979 KLT

543, the question arose whether a party can contract out of the

statutory obligation to give maintenance arising under Sections

125 and 127 of the Code of Criminal Procedure. It was held that

no party can be permitted to contract himself out of such a

statutory obligation and if permitted, it would certainly be

defeating a legal right statutorily conferred under Sections 125

and 127 of the Code of Criminal Procedure and that a contract

taking away a statutory right is opposed to public policy.
Mat.A.No.841/2014
16

26. In Sadasivan Pillai v. Vijayalakshmi : 1987 (1) KLT

381, it has been held that the relinquishment of the right to

claim maintenance by the wife in a joint petition for divorce will

not prevent her from claiming maintenance under Section 125 of

the Code of Criminal Procedure.

27. In Haroon v. Sainabha : 1992 (1) KLT 868, a

contention was raised that the wife and child cannot claim

maintenance from the husband because in an earlier proceedings

the matter was settled out of court and the wife had executed an

agreement in favour of the husband whereby all the disputes

regarding maintenance were permanently settled. This Court

repelled the contention holding that there is statutory obligation

of the husband to maintain his wife and minor son and he cannot

be permitted to contract out of such an obligation and such

agreement is opposed to public policy. It was held that a waiver

in derogation of a statutory right cannot be recognised by the

court as it affects public policy and as it is against the very

statutory obligation imposed on a husband to maintain his wife

and children who are unable to maintain themselves.
Mat.A.No.841/2014
17

28. In Geeta Satish Gokarna v. Satish Shankarrao

Gokarna : AIR 2004 Bom 345, it has been held that the term

of a compromise to the effect that the wife would not a claim any

maintenance or alimony in future from the husband is against

public policy and it has to be treated as non-est.

29. In Nizumal Haq v. Phool Begum: 2006 (1) MPLJ

272, it has been held that statutory right of children to

maintenance cannot be bartered, done away with or negatived by

the father by setting up an agreement to the contrary. Such an

agreement is against public policy. It has been held that the

agreement whereby the statutory right of children to

maintenance was relinquished may not per se be illegal but it

cannot be given effect to being a negation of the statutory right

and being opposed to public policy.

30. In Rajesh R.Nair v. Meera Babu : 2013 (1) KHC

812, the facts were similar to the facts of the present case. In

that case, there were several litigations between the husband

and the wife. While so, all the pending disputes between them

were settled by an agreement executed by them on mediation.
Mat.A.No.841/2014
18

Accordingly, joint compromise petitions were filed before the

Family Court and the cases were disposed of by the Family Court

in terms of the compromise. The agreement between the parties

provided that the wife shall forgo her right to claim maintenance

against the husband on condition that the husband shall pay an

amount in lump in full and final settlement of all her claims. She

received that amount from the husband. The wife, thereafter,

instituted proceedings against the husband under Section 125 of

the Code of Criminal Procedure claiming monthly maintenance.

The husband raised a contention that the claim is not

maintainable in the light of the agreement entered into between

the parties earlier as the parties had already settled all monetary

and other disputes between them and the wife had waived her

right to claim maintenance. This Court rejected the contention of

the husband holding that the right to claim maintenance provided

to the wife is a statutory right and the agreement by which the

wife had given up her right to claim maintenance from the

husband is opposed to public policy and void and hence,

unenforceable.

Mat.A.No.841/2014
19

31. In Bipin v. Meera : 2016 (5) KHC 367, in a joint

application for divorce, the wife had undertaken that she would

not claim money, ornaments or future maintenance.

Subsequently, she filed application under Section 12 of the

Protection of Women from Domestic Violence Act, 2005 seeking

various reliefs. The former husband resisted the claim on the

basis of the consent decree earlier passed by the court. It was

held that contracting out of the statutory rights conferred on the

wife is against public policy and hence cannot be recognized,

unless it was proved that there was a mutually satisfactory

settlement of all claims.

32. In Bai Tahira v. Ali Hussain Fidaalli Chothia : AIR

1979 SC 362, the question arose whether a divorced wife would

lose her right to claim maintenance for herself under Section 125

of the Code of Criminal Procedure, on making a declaration in the

compromise resulting in a consent decree that she had no further

claim against the husband. The wife had got right in immovable

properties and she had also received Rs.5,000/- as mehar from

the husband. The trial court held that the former husband, was
Mat.A.No.841/2014
20

liable to pay maintenance to his former wife and the children

inspite of receiving the customary dues and other rights in the

properties. The Supreme Court upheld the order of the trial

court.

33. In Nagendrappa Natikar v. Neelamma : AIR 2013

SC 1541, the question for consideration was whether a

compromise entered into by husband and wife under Order XXIII,

Rule 3 of the Code of Civil Procedure, agreeing for a consolidated

amount towards permanent alimony, thereby giving up future

claim for maintenance, accepted by the court in a proceeding

under Section 125 of the Code of Criminal Procedure, would

preclude the wife from claiming maintenance in a suit filed under

Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

The Apex Court held that the suit under Section 18 of the Act is

perfectly maintainable, inspite of the compromise reached

between the parties under Order XXIII, Rule 3 of the Code of

Civil Procedure and accepted by the court.

34. As per Section 23 of the Indian Contract Act, 1872, any

consideration or object of an agreement is unlawful, if it defeats
Mat.A.No.841/2014
21

the provisions of any law, or the court regards it as opposed to

public policy. It cannot be disputed that a contract which has a

tendency to injure public interests or public welfare is one

against public policy. Where a contractual provision is against a

specific statutory provision or if it would result in frustration of a

right conferred by law, then it can be regarded as opposed to

public policy. It shall not become valid even if the parties thereto

agree to it. A statutory right which has been conferred on a

person under public policy cannot be waived by the said person

by an agreement. When the obligation on the father to maintain

an unmarried daughter is recognised by a statute, it is a matter

of public policy and not of an individual. The father cannot divest

himself of his liability to maintain his child by an agreement with

the mother of the child. It would definitely be the public policy

that children should not be left dependent on public assistance or

on charity. They should therefore be able to come to the court for

maintenance, notwithstanding any agreement to the contrary.

35. In the aforesaid factual and legal situation, the

contention of the appellant that, the compromise decree passed
Mat.A.No.841/2014
22

by the court in the litigations between the father and the mother

would preclude the daughters from claiming maintenance from

the father, cannot be countenanced. The right of the daughters to

get maintenance from the father was not forfeited by virtue of

the agreement/compromise entered into between the mother

and the father.

36. Now we come to the question regarding the quantum

of maintenance and marriage expenses payable by the father to

the daughters. The financial capacity of the father has to be

taken into consideration in determining the amount which the

daughters are entitled to get from him. His means and income

would be relevant.

37. Admittedly, the father was employed as a driver

abroad in a private company. According to the daughters, he had

an income of Rs.2,00,000/- per month. The plea of the father is

that his monthly income was only Rs.40,000/- and he had to

repay a loan amount @ Rs.23,000/- per month. The father did

not enter the witness box. He also did not produce before the

court any certificate from his employer showing his actual salary
Mat.A.No.841/2014
23

and allowances. Only his power of attorney holder, a relative of

him, was examined as CPW1. His evidence regarding the income

and assets of the father cannot be relied upon. Ext.B5 is the

statement of account of the father in one of the banks. It would

show that he had maintained a minimum amount of

Rs.10,00,000/- in the bank account during the period from

02.09.2009 to 05.04.2013. In such circumstances, it cannot be

found that he was financially a very poor person.

38. The lower court has granted past maintenance of

Rs.36,000/- each to the daughters for a period of three years.

The amount of monthly maintenance awarded to each daughter

would come to Rs.3,000/- per month. It cannot be found that

this amount is excessive or unreasonable having regard to the

financial status of the father. We do not find any reason to

interfere with the decree passed by the lower court in this

regard.

39. The lower court has granted Rs.2,500/- per month as

future maintenance to each daughter. This amount is also not

highly excessive or unreasonable. We also do not intend to
Mat.A.No.841/2014
24

interfere with the decree passed by the lower court in this regard.

40. Now, we come to the question of marriage expenses.

The lower court has granted Rs.5,00,000/- each to the daughters

towards marriage expenses. Now a days, money in

abundance, is needed for the marriage of a girl. Considerable

amount would be required to meet the expenses of even the

basic and bare minimum necessities in connection with the

marriage of a girl. Therefore, it cannot be found that the amount

of five lakhs rupees awarded by the lower court as marriage

expenses to each of the daughters is excessive. But, the fact

remains that the father is now not alive. Whatever amount

awarded to the daughters has to be realized from the estate of

the deceased father. We also take note of the fact that the father

had gifted twelve cents of property with a building to the

daughters. Considering all these aspects, we are inclined to

reduce the amount of marriage expenses awarded by the lower

court to Rs.3,00,000/- each to the two daughters.

41. Consequently, the appeal is allowed in part. The

judgment and decree of the lower court awarding Rs.36,000/-
Mat.A.No.841/2014
25

each to the first and the second respondents (the daughters)

towards past maintenance is confirmed. The judgment and

decree of the lower court awarding Rs.2,500/- per month to them

towards future maintenance is also confirmed. They are entitled

to get the amount awarded as future maintenance only till the

date of death of the father, that is, on 18.12.2016. We modify

the judgment and decree passed by the lower court awarding

marriage expenses to the daughters and reduce the amount of

marriage expenses to Rs.3,00,000/-(Rupees three lakhs only)

payable to each of the daughters. The petition schedule property

shall be a charge for the aforesaid amounts awarded. The first

and the second respondents (the daughters) are entitled to

realise the decree debt from the estate of their deceased father.

No costs in the appeal.

(sd/-)
C.K.ABDUL REHIM, JUDGE

(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr/04/10/18

True Copy
PS to Judge

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