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
7marriage.
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