High Court of KeralaSingle Judge2023-10-31Revision petition disposed of: dismissed.

Sameer v. Fathima Sana (minor)

Case / Petition Number:RPFC NO. 304 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2023-10-31
Court Decision / Holding: The revision petition is dismissed; the impugned Family Court order directing maintenance at Rs. 5,000 per month from 28.06.2018 remains in force.
Final Disposition: Revision petition disposed of: dismissed.

Parties to the Case

Appellants / Petitioners

Sameer

Respondents

Fathima Sana (minor) represented by mother Shabeena

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Abdul Raoof P. Pallipath
• Sri K.R. Avinash (Kunnath)
• Sri Prajit Ratnakaran

Counsels for Respondents

• Smt. K. Deepa (Payyanur)

Case Synopsis & Summary

This is a Kerala High Court revision petition under Section 19(4) of the Family Courts Act, 1984, challenging a Family Court Thalassery order in MC 230/2008 directing the petitioner, Sameer, to pay maintenance to his minor daughter, Fathima Sana, at Rs. 5,000 per month from the date of the petition (28.06.2018). The respondent, represented by her mother Shabeena, contends the child requires maintenance, with the applicant alleged to earn Rs. 1 lakh per month from Gulf employment and to own property; the child’s claim was for Rs. 7,000 per month. The petitioner contends that a lump-sum settlement of Rs. 4 lakh to the child’s mother plus Rs. 3 lakh for maintenance under a separate agreement has already satisfied his obligations; he argues the Family Court erred by not recognizing this and by basing maintenance on the petition. The respondent’s counsel contends the alleged agreement was not marked in evidence, and even if it exists, a minor cannot be bound by such settlements, with Section 23 of the Indian Contract Act rendering such arrangements void against public policy. The court notes the absence of production of the agreement in evidence, considers the minor’s rights under Section 125 CrPC, and ultimately holds that the lumpsum arrangement cannot defeat the statutory obligation. The petition is dismissed, upholding the maintenance order.

Provisions of Law Cited

Section 125 of the Code of Criminal Procedure (CrPC)Section 23 of the Indian Contract Act, 1872Section 19(4) of the Family Courts Act, 1984

Legal Doctrines & Maxims

Public policy doctrine: relinquishment of statutory right of maintenance is void.
Lump-sum settlements cannot bind a minor’s right to maintenance.
A minor’s maintenance rights under CrPC 125 are statutory and cannot be waived by private agreement.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner submits that the Family Court erred by not considering the lump-sum payment allegedly made to the respondent’s mother under an agreement, which also purportedly covered maintenance of the respondent. He asserts that he earns about Rs. 1 lakh per month in the Gulf and possesses assets, making him capable of maintenance. The petitioner contends that the Rs. 3 lakh paid under the agreement, if proven, indicates fulfillment of obligations and that Section 23 of the Indian Contract Act invalidates contracts that purport to waive statutory maintenance rights of a minor. Since the agreement was not marked in evidence, and no credible proof of the lump-sum payment exists, the court should hold that no further maintenance is due and allow the revision.

Contentions of Respondents

The respondent argues that the alleged `lump-sum’ agreement was not marked in evidence and, even if it existed, a minor cannot be bound by such an arrangement. The minor is entitled to maintenance under Section 125 CrPC, and the lump-sum payment, if proven, may be void under Section 23 Indian Contract Act for public policy reasons. The mother testifies that Rs. 3 lakh was received as lumpsum, with Rs. 1 lakh allocated to the respondent’s maintenance, but there is no conclusive evidence that all terms were fulfilled. The maintenance order of Rs. 5,000 per month is appropriate and should be maintained; the revision petition should be dismissed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Nhandadi Pavithran v. Praseetha C.V.	2020 (2) KLT 581	Positive	The court accepts the principle that a lump-sum settlement intended to relinquish a statutory right to maintenance does not bind a minor, and this aligns with the cited Pavithran decision (no longer resintegra).

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945** ## **RPFC NO. 304 OF 2019** ## **AGAINST THE ORDER/JUDGMENT MC 230/2018 OF FAMILY COURT, THALASSERY** ## **REVISION PETITIONER/S:** SAMEER AGED 39 YEARS S/O. MUSTHAFA, KINAKOOL HOUSE, PATOOL, P.O. IRIKKOOR, KANNUR - 670 593. BY ADVS. ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.PRAJIT RATNAKARAN ## **RESPONDENT/S:** FATHIMA SANA (MINOR), AGED 9 YEARS NEAR MANIKOTH JUMATH MASJID, POST UMMANCHIRA, THALASSERY, KANNUR - 670 649, REPRESENTED BY NEXT FRIEND AND MOTHER SHABEENA, 'ASHIYAN, NEAR MANIKOTH JUMATH MASJID, POST UMMANCHIRA, THALASSERY, KANNUR - 670 649 (THALASSERY POLICE STATION LIMIT). BY ADV SMT.K.DEEPA (PAYYANUR) THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 31.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 304 OF 2019 2 (Dated this the 26[th] day of October, 2023) ## **ORDER** The revision petition is filed assailing the order passed in M.C.No.230/2008 of the Family Court, Thalassery directing the revision petitioner to pay the respondent – his daughter – monthly maintenance allowance @ Rs.5,000/- from the date of petition. The revision petitioner was the respondent and the respondent was the petitioner before the Family Court. 2. The respondent – the minor daughter of the revision petitioner - had filed the application under Section 125 of the Code of Criminal Procedure (in short, 'Code'), through her mother, for an order of maintenance. It was her case that her parents were married on 25.04.2010 and she was born in their wedlock. However, the revision petitioner has refused to maintain her since 14.02.2011. The revision petitioner is doing business in the Gulf and earning Rs.1,00,000/- per month. He has also landed properties. The respondent RPFC NO. 304 OF 2019 3 does not have means to maintain herself. She requires Rs.7,000/- per month towards her maintenance. Hence, the application. 3. The revision petitioner resisted the application by filing a written objection, inter alia, contending that his marriage with the mother of the respondent was dissolved by him pronouncing 'talaq'. A settlement agreement was executed between him and the respondent's mother and he paid the respondent's mother Rs.4/- lakh towards her maintenance and Rs.3/lakh towards the maintenance of the respondent. Hence, the respondent is not entitled to any further amount as maintenance. The revision petitioner is not employed in the Gulf or earning Rs.1/-lakh as alleged in the application. Hence, the application may be dismissed. 4. The respondent's mother was examined as PW1 and Ext.P1 was marked through her in evidence. The revision petitioner was examined as RW1. RPFC NO. 304 OF 2019 4 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application by directing the revision petitioner to pay monthly maintenance to the respondent @ Rs.5,000/- from the date of petition (28.06.2018). 6. Aggrieved by the said order; the present revision petition is filed. 7. Heard; Sri.Abdul Raoof P., the learned Counsel appearing for the revision petitioner and Smt.K.Deepa, the learned Counsel appearing for the respondent. 8. The learned Counsel appearing for the revision petitioner vehemently argued that the Family Court has failed to appreciate the fact that the revision petitioner had paid an amount of Rs.3/- lakh as per the agreement executed between the revision petitioner and his former wife – the mother of the respondent, – which includes the maintenance allowance of the respondent. RPFC NO. 304 OF 2019 5 Therefore, the revision petitioner is not liable to pay any further amount as maintenance to the respondent. 9. The learned Counsel appearing for the respondent, on the contrary, submitted that the alleged agreement executed between the parties was not marked in evidence. The revision petitioner has also not produced any material to prove that he has paid amount as lumpsum maintenance to the respondent. Moreover, even assuming that the revision petitioner has paid a lumpsum maintenance to the respondent's mother as per an agreement, the agreement is hit by Section 23 of the Indian Contract Act, the law laid down by this Court in **Nhandadi Pavithran vs. Praseetha C.V.** [2020 (2) KLT 581] and is not binding on the respondent, who is still a minor. Hence, the revision petition is only to be dismissed. 10. Is there and any illegality, irregularity impropriety in the impugned order ? RPFC NO. 304 OF 2019 6 11. The respondent is undisputably the minor daughter of the revision petitioner. She has asserted that the revision petitioner, despite having sufficient means, has neglected to maintain the respondent. The revision petitioner is employed in Gulf and earning Rs.1,00,000/- per month and, therefore, she is entitled to monthly maintenance @ Rs.7,000/-. 12. The revision petitioner denied the assertions in the application and contended that he had paid an amount of Rs.3/- lakh to the respondent's mother as lumpsum maintenance as per an agreement. 13. During the cross examination of PW1, she admitted that she has received Rs.3/- lakh from the revision petitioner towards her reasonable and fair provision of maintenance and Rs.1,00,000/- as maintenance for the respondent. But, she testified that the revision petitioner has failed to comply with the terms and conditions of the agreement and has not paid the entire amount. Therefore, the respondent is entitled RPFC NO. 304 OF 2019 7 to maintenance. 14. Firstly, the agreement allegedly executed between the revision petitioner and his former wife – the mother of the respondent was not produced and marked in evidence. Secondly, even if there was an agreement between the parties, the same is not binding on a minor child and is hit by Section 23 of the Indian Contract Act, as it is against public policy to relinquish a statutory right of maintenance. The said question is no longer resintegra in view of the law laid down in **Nhandadi Pavithran vs. Praseetha** (supra). Thirdly, even if the revision petitioner has paid any amount pursuant to the said agreement, there is no material on record to prove his defence of payment of lumpsum maintenance. 15. On an overall consideration of the pleadings and materials on record I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court by exercising its revisional power under Section 19(4) of the Family RPFC NO. 304 OF 2019 8 Courts Act, 1984. The revision petition is devoid of any merit and is hence, consequentially dismissed. Sd/- **C.S.DIAS JUDGE** rkc/31.10.23 RPFC NO. 304 OF 2019 9 ## **APPENDIX OF RPFC 304/2019** PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE AGREEMENT EXECUTED BY THE REVISIONPETITIONER AND THE MOTHER OF THE PETITIONER DATED 10.7.2017.