Biju v. Adeep (minor) through mother & guardian Deepa, and Deepa

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 4TH DAY OF DECEMBER 2017 / 13TH AGRAHAYANA, 1939** **OP(Crl.).No. 684 of 2017** ## **-----------------** **AGAINST THE ORDER JUDGMENT IN MC 535/2012 of FAMILY COURT,THRISSUR** **----------** **PETITIONER(S) (RESPONDENT IN M.C 535/2012,MC 292/2017,MC 295/2017 BEFORE THE FAMILY COURT, THRISSUR).** **-----------------------------** **BIJU** **AGED 42 YEARS, S/O ALAPPAT VEETTIL THOMAS, ELTHURUTH DESAM, ARANATTUKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.** **BY ADV.SRI.P.R.PADMANABHAN NAIR** **RESPONDENT(S)/2ND PETITIONER IN MC 535/2012 AND PETITIONER IN M.C 292/2017 FAMILY COURT, THRISSUR / (1ST PETITIONER IN M.C.535/2012 AND PETITIONER IN MC 295/2017 BEFORE THE FAMILY COURT, THRISSUR.)** **-----------------------** **1. ADEEP (MINOR)1ST RESPONDENT), REPRESENTED BY MOTHER & GUARDIAN DEEPA, AGED 10 YEARS, CHIRAYATH MANJIYIL HOUSE,** **C.C GARDENSMUKKATTUKARA, NETTISSERY, THRISSUR,PIN-680001.** ## **2. DEEPA** **AGED 31 YEARS, D/O JOSE, CHIRAYATH MANJIYIL HOUSE,** **C.C GARDEN, MUKKATTUKARA DESOM, NETTISSERY , THRISSUR,PIN-680001.** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 29/11/2017, THE COURT ON 04/12/2017, DELIVERED THE FOLLOWING:** **TS** ## **OP(Crl.).No. 684 of 2017 (Q) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 PHOTOSTAT COPY OF THE ORDER DATED 2.12.2013 IN MC NO.535/2012 OF THE FAMILY COURT, THRISSUR.** **EXHIBIT P2 PHOTOSTAT COPY OF THE MEDIATION AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENTS ON 30.9.2013 IN M.C NO.535/2012.** **EXHIBIT P3 PHOTOSTAT COPY OF THE RECEIPT SIGNED BY THE RESPONDENT ON 1.6.2015 ALONG WITH COPY OF THE CHEQUE FOR RS.3,50,000/ (RUPEES THREE LAKHS FIFTY THOUSAND ONLY) ALONG WITH MEDIATION RULES.** **EXHIBIT P4:- PHOTOSTAT COPY OF RECEIPT SIGNED BY THE RESPONDENT ON 22.1.2015 ALONG WITH COPY OF THE CHEQUE FOR RS.2,99,573/-(RUPEES TWO LAKHS NINETY NINE THOUSAND FIVE HUNDRED AND SEVENTY THREE ONLY).** **EXHIBIT P5:-PHOTOSTAT COPY OF PETITION FILED BY THE RESPONDENT IN MC.292/2017 FILED BY THE FIRST RESPONDENT UNDER SECTION 125 OF CRPC BEFORE THE FAMILY COURT ,THRISSUR. EXHIBIT P6:- PHOTOSTAT COPY OF PETITION FILED BY THE SECOND RESPONDENT IN MC 295/2017 UNDER SECTION 125 OF CRPC BEFORE THE FAMILY COURT,THRISSUR AFTER SETTLEMENT AND ORDER IN MC 535/2012. EXHIBIT P7:- THE ORDER DATED 27.10.2017 IN MC 292/2017 FROM THE FAMILY COURT THRISSUR WITH W.R.T THE MAINTAINABILITY OF THE PETITION.** **EXHIBIT P8:- PHOTOSTAT COPY OF THE JUDGMENT DATED 15.2.2017 IN OP(C)NO.3131 OF 2016) 2017(3)KHC 155)WITH MEDIATION RULES. RESPONDENT(S)' EXHIBITS - NIL -----------------------------** **/TRUE COPY/** **PS TO JUDGE** ## **TS** ## **CR** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **O.P.(Criminal)No.684 of 2017** - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of December, 2017 ## **JUDGMENT** The short question that arises is whether, after securing an order under section 125 Cr.P.C., pursuant to a settlement arrived at through a court annexed mediation, is the claimant precluded from seeking enhanced maintenance under section 127 Cr.P.C.,on ground of change in circumstance. 2. The original petitioner had married the second respondent herein and the first respondent child was born in the wedlock. Later, matrimonial disputes arose, which led to the filing of MC No.535/2012 by the respondents herein, under section 125 Cr.P.C.,claiming maintenance. The second respondent herein claimed maintenance at the rate of Rs.10,000/- per month and the first respondent claimed at the rate of Rs.5,000/- per month. Pending proceedings, both sides agreed for referring the matter to a court annexed mediation. The matter was accordingly referred for mediation. Ext.P2, settlement dated 30/9/2013 was arrived at, by which, the petitioner,inter alia, undertook to pay maintenance 2 O.P.( Crl.) 684/2017 of Rs.2000/- per month to the child alone. It was further agreed that, the petitioner herein will pay a sum of Rs.3,50,000/- to the second respondent in full and final settlement of all her claims and that of all future maintenance of both the respondents herein. It was also agreed that, the right of the petitioner on the Fixed Deposit in the joint names of the petitioner and the second respondent will be released in favour of the second respondent. By Ext.P1 order, the Family Court approved the mediation agreement and maintenance was accordingly ordered. By Ext.P3, the amount, as agreed to be paid by the petitioner herein, was paid. By Ext.P4, the right of the petitioner over four joint Fixed Deposits was released in favour of the second respondent. 3. In 2017, the first respondent filed MC No.292/2017 under section 127 of Cr.P.C. through her mother, claiming enhanced maintenance at the rate of Rs.7,000/-, on a premise that there was change in circumstance. It was stated that, she was studying in the best school in the area, and that the educational expenses, the cost of living and other expenses have exponentially increased. It was further stated that, there was a hike in the salary of the petitioner herein, entitling the first respondent child to claim enhanced maintenance. The wife had also filed a separate application for maintenance under section 125 of Cr.P.C. as MC No.295/2017. Both the applications were opposed by the petitioner herein, contending, inter alia that, since the disputes were settled O.P.( Crl.) 684/2017 3 voluntarily and amicably, through the process of mediation and the full and final settlement of all the claims of the respondents herein were accepted by the court below, there was no scope for reopening the concluded settlement. Referring to the decision of this court in **Mohanan P.K.and others v.Sudakshina Ramakrishnan and Others (2017 (3) KHC 155)** and the Civil Procedure(Alternative Dispute Resolution) Rules 2008, it was contended by the petitioner that, once a mediation agreement is arrived at, settling not only the case involved, but the basic disputes between the parties also, there is no scope for claiming further amount and re-opening of the earlier decision. It was further contended that unlike adjudicatory process, in a mediation process, the parties voluntarily resolve all the pending, related and future disputes, having regard to the future contingencies also. The objection in relation to the application filed by the wife was accepted and her application was rejected by the Family Court, being one under section 125 Cr.P.C. The court below, by Ext.P7 preliminary order, refuted all the above contentions of the petitioner herein and held that the application under section 127 of Cr.P.C. filed by the child was maintainable. The above order is the subject matter of this original petition. 4. Heard the learned counsel for the petitioner in extenso at the threshold and examined the records. 5. Admittedly, in the Section 125 Cr.P.C. proceedings, the O.P.( Crl.) 684/2017 4 parties had voluntarily opted for mediation and by due process of mediation, settled their disputes. Tenor of Ext.P2 indicates that, parties have transgressed the limited issue involved in the maintenance case and went to the extent of resolving related claims and disputes also, which had existed on the date of the settlement. It is clear from Ext.P2 that the petitioner herein had agreed to pay a sum of Rs. 3,50,000/- in full and final settlement of all the claims of the wife over the property of the petitioner, the claim on gold ornaments and the claim for future maintenance of both the respondents. Further, the right of the petitioner herein over the Fixed Deposits was also agreed to be released in favour of the first respondent. It was resolved to terminate the matrimonial relationship and to seek judicial separation by mutual consent. It was further resolved that the child will be under the custody of the mother and petitioner herein will have visitorial rights on specified days. Ext.P2 agreement covers the claim under section 125 Cr.P.C. and the claims for past and other maintenance were settled, in lieu of a consolidated payment. Hence, Ext.P2 is a comprehensive settlement covering various claims. 6. The crux of the preliminary objection raised by the petitioner was that by filing application under section 127 Cr.P.C, the terms of the earlier mediation agreement were proposed to be re-opened and re agitated. Conceptually, the proceeding under section 127 Cr.P.C.stands on a totally different footing from that 5 O.P.( Crl.) 684/2017 under section 125 Cr.P.C. It enables the claimant to seek alteration of already fixed maintenance on the ground of change in circumstance. The ground to be established in a claim under section 127 Cr.P.C.is a change in circumstance, from that existed at the time of considering the application under section 125 Cr.P.C. In a claim under section 125 Cr.P.C., the entitlement is based on the existing requirements and the anticipated future requirements. 7. Mediation, being a voluntary, party centered and structured negotiation process where an independent third party assists the parties in amicably resolving their disputes by using specialized communication and negotiation techniques, has the added advantage of resolving all related/connected disputes pending between the parties also. In the present case also, parties have resolved their other disputes by mediation. It may be possible to fix the quantum of maintenance, having regard to future contingencies. However, all possible change of circumstances, that may form ground for variation under section 127 Cr.P.C. of the earlier maintenance fixed, cannot be visualized in anticipation and consolidated in an agreement arrived at in the process of settlement under section 125 Cr.P.C. Apart from the efflux of time, at the most, and those contingencies which are within the limits of reasonable foreseeability can be a subject matter of mediation for maintenance under section 125Cr.P.C. Still there are several other contingencies, which may constitute grounds for change in O.P.( Crl.) 684/2017 6 circumstance, which are beyond the pale of reasonable foreseeability and hence, settlement of claim under section 125 Cr.P.C. cannot telescope into the claim under section 127 Cr.P.C. 8. The objection of the petitioner can be considered from yet another angle also. Section 127 Cr.P.C is a statutory right conferred on any person entitled for maintenance. Even if an adjudicated order is passed under section 125 Cr.P.C., an application under section 127 Cr.P.C.is still maintainable at a later stage, if change in circumstance is pleaded. Holding that application under section 127 Cr.P.C.is not maintainable on the ground that mediation settlement under section 125 Cr.P.C. was earlier arrived at or that an order passed under section 125 Cr.P.C. pursuant to a mediation settlement, will act as a bar to an application under section 127 Cr.P.C,would amount to grouping mediation settlements a class by itself, and placing it on a higher pedestal than an adjudicated order under section 125 Cr.P.C., which, by no stretch of imagination, can be held to be contemplated under the concept of mediation. Definitely, mediation process has its own advantages. However, being a statutory relief, the claim under section 127 Cr.P.C.cannot be taken away on the mere premise that earlier, fixation of maintenance was by way of mediation. 9. Judicial precedents supporting the above view are also available. In **Joydel Kumar Biswas v. Maduri Biswas (1994** O.P.( Crl.) 684/2017 7 **Cri LJ.3342(Cal.)** the Calcutta High Court rejected the contention of the husband that an order of maintenance on a compromise under section 125 Cr.P.C.will preclude a subsequent application under section 127 Cr.P.C. by virtue of Principle of estoppel and waiver. The contention of the wife was that there cannot be any estoppel against statute and plea of waiver directly militates against section 23 of Indian Contract Act. Negativing the contention of the Husband, the High Court affirmed that there was nothing in section 127 Cr.P.C. which takes away the jurisdiction of court to modify its own order under section 125 Cr.P.C., though it was on the basis of a compromise. It was held in **P.K. Panda v. Aman Kumar Panda (1996 Cri.LJ.553), (Ori.** ) and **Kastoori Devi v. Sri.Chheda Lal Sharma (1978 (Cri.LJ.703 All)** that where maintenance has been granted on a compromise petition , the wife is not barred from claiming enhanced maintenance, on change in circumstance, especially where no such restriction has been imposed on compromise. In fact in **Manaka Chatterjee v.** **Swapan Chaterjee(2002 Cri.LR(Cal) 577),** it was held that an agreement which spells out granting lump sum amount for perpetually barring the wife from claiming any maintenance in future, was not tenable in law. Court proceeded to hold that, even if she binds herself consciously or unconsciously to such an agreement, law has to come to her aid and protect her statutory right to maintenance and also her right to life and to live with O.P.( Crl.) 684/2017 8 dignity. 10. In **Jaswant Singh v. Ranjit Kaur (1991 Cri.LJ.3061)** , **Alagappan v. Thilagam (2000 Cri.LJ.3239)(Mad.** ), **Shyamal Praosad Halder v. Smt.Madhuri Haldar (2005 (1) Crimes 246 (Cal.)** and **Padmanabhan v. Bama (1988 Cri.LJ.1386(Mad.)** , it was consistently held that there is no legal bar in alteration in the maintenance allowance already fixed in favour of the wife even if the said order was passed on the basis of a compromise between the parties. It was held that, it will also also be not obligatory for the wife to get the order set aside in her favour, before applying for alteration of the maintenance allowance. 12 This court in two earlier decisions in **Sivarajan v. Menakshi(ILR (1966)Ker.165)** and in **Vasudevan Nair v. Kalyani Amma Gouri Amma (Manu/KE/0102/1969)** had expressed the same view. In Vasudevan Nair's case, this court had held that if court passes an order in terms of compromise, then it is that order, and not the compromise, that is sought to be enforced subsequently. In Sivarajan's case(supra), it was held that an order of maintenance passed under the old code will not preclude the court from making an alteration in allowance under section 489 Cr.P.C.(old code). 13. Though, I am in full agreement with the above legal principle consistently affirmed by various judicial pronouncements, they do not answer another ancillary question. Instead of an 9 O.P.( Crl.) 684/2017 omnibus clause in the agreement or compromise precluding the wife from claiming any future maintenance or from seeking enhancement, will it make any difference, if parties consciously anticipate the various possible future contingencies which are explicitly, categorically and unambiguously spelt out in the agreement and having due regard to such contingencies, arrive at a pre quantified component of maintenance ? I feel that in such cases, due regard should be given to the intention and the agreement between parties and wife should be precluded from setting up a claim under section 127 Cr.P.C. if, while fixing the quantum of maintenance under section 125 Cr.P.C., such specific contingencies are specifically and voluntarily considered and, provision is made consciously to satisfy such contingencies. 14. In the light of the above facts, I am satisfied that the finding of the court below is not legally assailable and is liable to be confirmed. The original petition is dismissed. However, it is made clear that the petitioner herein will be entitled to raise all his objections at the appropriate stage, including the contention that all possible contingencies were contemplated in the mediation agreement. The original petition fails and is dismissed. Sd/- dpk **SUNIL THOMAS Judge** /true copy/ PS to Judge **.**