Ashok vs Madhu and Others

K.N. Phaneendra, J.—The petitioner(aggrieved father), has filed this petition calling in question the order of Principal Judge, Family Court, Dharwad, in Crl. Misc. No. 460 of 2011 granting maintenance of Rs. 3,000/- each per month to the petitioners therein from the date of the petition till the date of order and Rs. 4,000/- per month each from the date of the order till their marriage and also awarding an amount of Rs. 25,000/- per annum to the petitioners therein towards their educational expenses.

There is no dispute between the parties with regard to their relationship. It is also not disputed that the petitioner and his wife/mother of the respondents have filed a petition in M.C. No. 22 of 2006 and have entered into compromise vide joint memo and thereafter their marriage came to be dissolved. It is also an undisputed fact that in view of the joint memo, Crl. Misc. No. 38 of 2007 filed under Section 125 of the Code of Criminal Procedure and a Private Complaint in No. 7 of 2006 on the file of the Additional JMFC, Dharwad, were withdrawn.

The wife-as a minor guardian of the petitioners therein had filed a petition for maintenance under Section 125(1) of Cr.P.C. claiming that, in the joint memo, there is no recital with regard to the forfeiture of maintenance right of the children. Further, the petitioner has neglected and refused to maintain the children in not providing maintenance, educational expenses etc. The petitioners have sought maintenance of Rs. 5,000/- per month each and Rs. 50,000/- per annum towards their educational expenses from the respondent therein. It is also contended with regard to the income of the respondent therein that the respondent is employed in the LIC department and is drawing handsome salary and therefore the petitioners are entitled for maintenance and educational expenses as sought for.

The petitioner herein has contested the said proceedings seriously by fling objections stating that the dispute between the parties has already been set at rest in M.C. No. 22 of 2006 itself by entering into a joint compromise petition wherein he has paid a sum of Rs. 1,00,000/- towards permanent alimony to his wife and also as per the wish of the respondent''s mother, he also agreed to take two LIC policies each in the name of the respondents for a sum of Rs. 1,50,000/- and agreed to pay the premium regularly irrespective of he getting voluntarily retirement or his retirement, retrenchment or removal from service for any reason and after maturity, the respondents are entitled to withdraw the entire amount and as such their right to claim maintenance have been forfeited, as such they are not entitled for any maintenance. It is further contended that the trial Court has not properly appreciated the oral and documentary evidence on record and erroneously granted maintenance to the respondents herein towards educational expenses which is not proper in the facts and circumstances of the case. Therefore, he pleads for setting aside the order under the revision. He also submits that as the Family Court has not properly appreciated the oral and documentary evidence on record, the same requires to be sent back for proper appreciation of the material on record.

I have heard the arguments of the learned counsel for the respondents. He submits that the joint memo entered into between the parties does not take away the right of the respondents, who are the children, from seeking maintenance. Wife has not claimed any maintenance. It is only for the benefit of the children, educational expenses and maintenance were sought. He further submits that the trial Court, after considering the oral and documentary evidence on record, has passed the impugned order and the same does not call for interference.

I have carefully perused the pleadings of the parties and as well as the evidence led by them. Of course there are some admissions on the part of the parties, they want to explain the intention of the parties while entering into the joint memo in their evidence subsequently recorded in Crl. Misc. No. 460 of 2011. When the joint memo itself is relied upon by the parties, they cannot be allowed to explain what was the real intention of the parties in entering into the said compromise unless specific recitals are there in the documents itself taking away the rights of the petitioners from claiming maintenance as well as the educational expenses. The parties have led evidence so far as the income of the petitioner, which has been categorically admitted by him that he is drawing salary of Rs. 50,000/- per month. Much reliance has been placed upon the joint memo filed between the parties in M.C. 22 of 2006 while taking divorce between themselves. It is evident from the said document that the minor children were not parties in the said proceedings. The joint memo was filed by the husband and wife only. Paragraph 7 of the said document, which is marked before the Court as Ex. P-5, reads in the following manner:

"7] Both petitioner and respondent are having daughters by name Madhu and Soumya. Said Madhu and Soumya are minors in age and they are in the lawful custody of the petitioner. The respondent has purchased LIC of India''s polices in the name of aforesaid Madhu and Soumya having policy value of Rs. 1,50,000-00 (One Lakh Fifty thousand Rupees only) each insured under Jeevan Tarang table No. 178 scheme. The above said policy bonds are bearing Nos. 637772516 and 6377725517 respectively in the name of above said Madhu and Soumya issued by LIC of India, branch I Gadag. The respondent has agreed to pay premium of both police regularly till the last installment as per the policy in case of respondent getting voluntarily retirement, retiring after attainment of super annuation or removal or retrenchment from service for any reason, then also the respondent is liable to pay the premium of above said polices or the entire policy amount is to be said policies or the entire policy amount is to the petitioner by deducting from the services terminal/benefits."

The learned counsel also brought to my notice paragraphs 11 and 12 which reads as follows:

"11] As all the disputes between petitioner and respondent have been settled, the petitioner agreed to withdraw PC No. 7/06 on the file of II Addl JMFC Dharwad on or before 18-08-2007.

12] The petitioner has filed Crl. Misc. No. 38/07 on the file of Principal J.M.F.C Dharwad, U/sd 125 Cr.P.C. claiming maintenance. As disputed is settled the petitioner agreed to with draw the same on or before 5-7-2006."

Looking to the above said contents of the joint memo, there is absolutely nothing stated as to why the petitioner has drawn two policies in the name of his children, what was the reason, whether it was for education expenses or towards maintenance or for the marriage expenses of the children etc. Nothing has been elucidated in the said document. As I have already stated that the parties have entered into a joint compromise expressing their oral intention as to why document has been entered into, they are restrained from giving any oral evidence contrary to the document. Only evidence can be led to correct the mistakes, if any, in the said document or if the document itself is ambiguous. On plain reading of the above said joint memo, there is absolutely no ambiguity in the said document in order to seek explanation from the parties.

Looking to the said document, as there is no mention with regard to forfeiture of any maintenance right by the respondents herein or there is any mention as to why the said polices have been drawn in the name of the two minor children, it goes without saying that the rights of the children so far as maintenance and educational expenses are concerned, were kept in tact and minor children could claim such reliefs. Further added that the minor children were not restrained from claiming any maintenance from their father. It is an independent and absolute right of the children. It cannot be easily defeated by entering into a compromise between the husband and wife. The very object of entering into compromise in the joint memo is to get rid of the marriage tie that has been occurred by granting of a divorce decree. The rights of the children have to be adjudicated independently apart from joint memo because no right of the children in any manner taken into consideration the consent of the wife given for the purpose of divorce only. When the rights of maintenance and educational expenses were not properly adjudicated in the joint memo or by means of any decree, as rightly observed by the trial Court, the respondents are well within their rights to claim maintenance and as well as educational expenses.

Even accepting that those policies were drawn in favour of the children, in the absence of explanation as to why those policies were drawn in their favour, it cannot be said that those policies were drawn towards educational expenses or towards their maintenance. It goes without saying that till the maturity of the policies, the children will be left with nothing for day to day expenses and for educational expenses. Therefore, the trial Court has properly appreciated the material on record and came to the conclusion that the children are entitled for maintenance and as well as educational expenses.

Be that as it may, the facts further discloses that after the divorce petition, except drawing the policies in favour of the minor children, the petitioner has not made any arrangements towards their maintenance. Therefore, it is the bounden duty of the father-petitioner to take care of the children, as it is admitted that the children are with the wife and that he has not made any attempt for taking custody of the children and he has not stated in the joint memo that even after drawing those polices, he would take the responsibility of the children and as well as their maintenance and education expenses for which he is duty bound. Under the above said circumstances, neglect and refusal by the husband can be inferred by the conduct of the petitioner wherein after divorce he has not made any such arrangement for the benefit of the children and for their upliftment in the society. As could be seen, the children need more nourishment, they need more care and caution and it is the responsibility of the petitioner to do all efforts to see that his children become a good citizens of the country. In the above said circumstances, the petitioner has failed in his duty. When a person fails in his duty that itself amounts to neglect and refusal. Therefore, there is no need for specifically proving neglect and refusal by the petitioner. The Court has to take into consideration all the surrounding circumstances to find out whether there was any neglect or refusal.

So far as income is concerned, there is an admission on the part of the petitioner that he is drawing salary of Rs. 50,000/- per month and out of that Rs. 8,000/- per month towards monthly maintenance cannot at all be said to be on the higher side and an amount of Rs. 25,000/- per annum towards educational expenses of two children is also, in my opinion, not on the higher side. In the above said circumstances, I do not find any strong reasons to interfere with the judgment passed by the trial Court. There is no need for this Court to remit the matter because the trial Court in detail has appreciated the facts on record. Section 125 proceedings is a summary proceedings, the court after understanding the case of the parties, if on appreciation of the facts whether in detail or in a short manner, arrives at a conclusion if found to be proper and correct, the revisional court normally should not interfere with such orders.

In the above said circumstances, the petition being devoid of merit is liable to be dismissed. Accordingly dismissed.