Ramla and Others v. A.C. Ashraf

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ## **`THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944`** ## **`RPFC NO. 9 OF 2014`** ## **`MC 24/2013 OF FAMILY COURT, KASARAGOD`** ## **`REVISION PETITIONER/S:`** - `1 M.RAMLA AGED 30 YEARS` - `D/O. MANDYAN ABDUL RAZZAK, MUHAMMED SABID MANZIL, PADNEKKAD P.O., KANHANGAD, KASARAGOD DISTRICT.` - `2 MUHAMMED SHARAFATH M. AGED 10 YEARS` - `S/O. M.RAMLA, MUHAMMED SABID MANZIL, PADNEKKAD P.O., KANHANGAD, KASARAGOD DISTRICT.` - `3 MUHAMMED SHAFEER M. AGED 16 YEARS S/O.M.RAMLA, MUHAMMED SABID MANZIL, PADNEKKAD P.O., KANHANGAD, KASARAGOD DISTRICT. (PETITIONERS 2 AND 3 ARE MINORS, THEY ARE REPRESENTED BY THEIR MOTHER/1ST PETITIONER M.RAMLA).` ``` BY ADV SRI.V.N.RAMESAN NAMBISAN ``` ## **`RESPONDENT/S:`** ``` A.C.ASHRAF AGED 34 YEARS S/O. V.KHATHIM, PORKALAM, AMBALATHARA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-671 121. ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RPFC NO. 9 OF 2014 ``` -2- ## **ORDER** (Dated this the 2[nd] day of June 2022) The petitioners are the respondents in M.C.No.24 of 2013 on the files of the Family Court, Kasaragod and the respondent was the petitioner therein. The said M.C. was filed by the petitioner husband under Section 127 Cr.P.C for cancellation of the monthly maintenance ordered in M.C.No.212 of 2009 to the respondents. 2. The respondents/wife and children filed M.C.No.212 of 2009 under Section 125 (1) Cr.P.C claiming monthly maintenance from the petitioner. The said petition was allowed on 4.2.2010 as an ex-parte order and directed to provide monthly maintenance at the rate of Rs.2,500/- to the first respondent, Rs.750/- to the second respondent and Rs.500/- to the 3[rd] respondent from the date ``` RPFC NO. 9 OF 2014 ``` -3- of order. The first respondent also filed O.P.No.206 of 2011 for dissolution of marriage. The said petition was allowed on 19.10.2011. MC 148/2012 was filed before the court of the Judicial Magistrate of First Class, Hosdurg under Section 3 of Muslim Women (Protection of Right on Divorce) 1986 (for short 'the Act’). The petitioner on coming to know about the proceedings, through mediators and advocates on both parties intervened and the parties agreed to settle amicably and ultimately, the petitioner agreed to pay an amount of Rs.5,10,000/- to the petitioners as full and final settlement of all cases, including M.C. No.212 of 2019. Thereafter, Talaq was pronounced by the petitioner on 3.9.2012 and paid the amount as agreed. An agreement was also executed and counter-signed by the counsel on both parties. The first ``` RPFC NO. 9 OF 2014 ``` -4- respondent/wife was made to believe that the amount paid is in full settlement and satisfaction including the maintenance amount ordered in M.C.No.212 of 2019. As the petitioner have discharged his liability by paying the amount mentioned above, the maintenance ordered in M.C.No.212 of 2019 has to be cancelled in view of the changed circumstances and hence, filed the MC. 3. The respondents filed counter contending that it is true that the first respondent/wife has settled all the cases pending between them in various courts for an amount of Rs.5,10,000/- except the order in M.C. No.212 of 2009 pending in favour of respondents Nos.2 and 3. The petitioner, at the time of settlement, has offered to maintain respondent Nos.2 and 3 by giving maintenance amount directly. As per the assurance of the petitioner, the first ``` RPFC NO. 9 OF 2014 ``` -5- respondent waited for six months but since the maintenance amount to respondent nos.2 and 3 was not paid C.M.P.No.43 of 2013 was filed for arrears of maintenance. The agreement executed between the petitioner and the first respondent is not at all binding to the minor respondent Nos.2 and 3 restraining them from realising future maintenance. 4. The petitioner produced Exts.A1 to A3 and got himself examined as PW1 along with the counsel appearing on both sides as PW1 to PW3. The first respondent herself was examined as RW1. 5. The Family court, by the impugned order cancelled the maintenance order dated 4.2.2012 in M.C. No.212 of 2009 in toto. Aggrieved by the same, this revision petition is filed by wife and children. ``` RPFC NO. 9 OF 2014 ``` -6- ## 6. Heard. 7. The main contention raised by the counsel for the petitioners is that the agreement executed between the petitioners and first respondent for payment of lumpsum amount of Rs.5,10,000/- as full and final settlement amount will not bind the minor children as the agreement is opposed to public policy. The wife / first petitioner has filed M.C. No.148 of 2012 under Section 3 of the Act and she received the amount of Rs.5,10,000/- as the amount due to her under the said section. Counsel for the petitioners submits that since the first petitioner has already received the amount of Rs.5,10,000/- on the basis of the agreement between herself and the respondent, she is not aggrieved by the cancellation of the maintenance order in respect of her, but only aggrieved by the cancellation of the maintenance ``` RPFC NO. 9 OF 2014 ``` -7- order in respect of the minor children i.e., petitioner nos.2 and 3. This court in a decision reported in **Sajani A v. Dr.B Kalam Pasha and another [2021 (5) KHC 582]** held that the right of divorced Muslim women under Section 125 Cr.P.C. does not get extinguished on account of the larger right conferred under Section 3 of the Act. If the divorced Muslim woman chooses to claim amount under section 3 of the Act, only on such payments made either voluntarily or in response to an order of the Court does Section 127(3)(b) Cr.P.C. get attracted to extinguish the liability of the husband under Cr.P.C. Till then, or till she remains a divorced Muslim woman, she will be entitled to claim maintenance from her divorced husband. Death, remarriage or actual payment of the amounts payable under Section 3 of the Act, alone shall extinguish her right under ``` RPFC NO. 9 OF 2014 ``` -8- Section 125 Cr.PC to claim maintenance. Thus, it can be seen that on receipt of Rs.5,10,000/-, the right of the first petitioner to claim maintenance under Section 125 Cr.P.C gets extinguished. As far as petitioner Nos.2 and 3 are concerned, the agreement executed between the first petitioner and the respondent, in no way, affect their claim to maintenance from the father respondent. This view has been held by a Division Bench of this Court in the decision reported in **Vikraman Nair v. Aishwarya [2019 (1) KLT 826]** , in paragraph No.22, held as follows: “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 S.125 of the Code of ``` RPFC NO. 9 OF 2014 ``` -9- 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 agreement. It is also well settled that any contract which is opposed to public policy is void under S. 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”. The above view has been reiterated in various judgments of the hon'ble Supreme Court and various other High Courts. 8. Thus, any agreement entered into by a wife with the husband, as a part of the compromise relinquishing her right or the right of the children does not preclude the right of the children from claiming maintenance from their ``` RPFC NO. 9 OF 2014 ``` -10- father under Section 125 Cr.P.C. 9. The Family Court on a wrong appreciation of law, has cancelled the maintenance awarded to the minor children under Section 125 Cr.P.C. through the impugned order. The main reasoning of the Family court is that since a lumpsum amount has been received by the first petitioner as full and final settlement of all the amount claimed including the claim under Section 3 of the Act, there is change of circumstance and hence the cancellation is warranted. I am afraid the said finding of the Family Court is against the dictum laid down by the judgment of the decision reported in **Vikraman Nair(supra)** . For the said reason, I am of the considered opinion that the order of the Family Court needs interference. Accordingly, the judgment of the Family ``` RPFC NO. 9 OF 2014 ``` -11- Court is set aside to the extent that it cancels the maintenance awarded to petitioner nos.2 and 3 under M.C.No.No.212 of 2009. Needless to state that the first petitioner is not entitled to claim maintenance from the respondent and the cancellation in respect of the first petitioner under Section 127 Cr.P.C. is upheld. The R.P.(F.C.) is allowed in part as above. SD **BASANT BALAJI, JUDGE** _dl/_