N.K. Chandrika vs C.K. Sadasivan

P. Bhavadasan, J.—Under challenge is the order dated 31/3/2010 passed in M.C.No. 195/2008 whereby the Family Court of Ernakulam dismissed the maintenance application filed by the petitioner on the ground that there was an agreement entered and whereby she was paid a sum of Rs. 50,000 (Rupees fifty thousand only) towards her all past and future maintenance claim.

The marriage between the petitioner and the respondent was held on 18/10/1989, in accordance with their religious rites and ceremonies. It was alleged that money and gold ornaments were given at the time of marriage to the respondent. According to the petitioner, she was compelled to leave the matrimonial house within 3 months from the date of marriage due to the ill-treatment by the respondent. The marital relationship between the petitioner and the respondent was dissolved as per the decree in O.P.No. 457/2003 dated 26/5/2003. According to the petitioner, the respondent being her former husband, is liable to pay reasonable amount to meet her maintenance expense and that he was employed in Krishi Bhavan, Okkal earning Rs. 16,000/- per month by way of salary. Besides that he has landed property and out of which he is getting monthly income of Rs. 1,500/-. Therefore, the petitioner claimed Rs. 4,000/- per month for her maintenance.

The respondent resisted the claim by stating that the marriage between the petitioner and the respondent was dissolved by mutual consent and the petitioner moved MC.42/2003 for claiming maintenance from the respondent. That petition was compromised between the petitioner and the respondent paid an amount of Rs. 50,000/- to her as full and final settlement of all claims and he has no liability to pay future maintenance claimed by her.

Since counseling failed between the petitioner and the respondent, evidence was adduced by both the parties, PW1 and RW1 were examined and Exts.A1 and C1 were marked. After perusing the evidence on record, the trial court, in view of the Ext.C1 agreement, come to the conclusion that the claim of the petitioner for maintenance is not sustainable in law and accordingly, dismissed the petition. The said order is under challenge.

The learned counsel appearing for the petitioner points out that the court has not considered the case of the petitioner in accordance with law. Even though, he agreed that the petitioner has got an amount of Rs. 50,000/- as per the Ext.C1 agreement, relying on the decision reports in Sadasivan Pillai v. Vijayalakshmi 1987 (1) KLT 381 and Damodaran v. Lakshmikutty Amma 1979 KLT 543 he contended that such agreements are not valid in law and do not preclude the petitioner from making her claim for future maintenance and in the light of the principles stated in the above decisions, the impugned order has to be set aside.

The learned counsel for the respondent did not dispute the legal aspect stated by the revision petitioner but pointed out that the revision petitioner has got a large extent of immovable property and from which she is getting sufficient income for her maintenance.

In view of the decisions stated above, Ext.C1 agreement is not legally sufficient to preclude the petitioner from claiming future maintenance. However, the counsel for the respondent points out that the revision petitioner has a large extent of immovable properties from which she is getting sufficient income for her maintenance. But the court below had dismissed the petition filed by the petitioner only on the ground of C1 agreement.

The said agreement cannot preclude the claim of the petitioner for future maintenance and the income alleged to be received by her from the immovable properties is a matter to be decided by the lower court. No evidence seems to have been adduced in that regard. It is necessary to assess the income if any, derived by the petitioner from her immovable properties. It is also necessary to assess the income derived by the respondent so that the quantum of future maintenance to be paid to the petitioner by the respondent can be determined.

In the result, this revision is allowed, the impugned order is set aside and the matter is remanded to the trial court for fresh consideration. Accordingly, the parties shall appear before the court below on 28/03/2012. Both sides shall be given opportunity to adduce further evidence, if they chose to do so. The family court shall dispose the matter as expeditiously as possible, at any rate, within five months from the date of appearance of the parties.