Sanjay Sasidharan v. ASA Sanjay and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 Mat.Appeal.No. 298 of 2010() ---------------------------OP.643/2006 of FAMILY COURT,TRIVANDRUM AS CORRECTED ON 2.12.2009 AS PER ORDER IN I.A.2341/2009) .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- SANJAY SASIDHARAN,S/O.K.P.SASIDHARAN, R/AT.201,TANJONG,RHU ROAD,03-16,PARK SHORE SINGAPORE 46391,WORKING AS CONSULTANT MANAGER,ENTERPRISES RESOURCES PLANNING SERVICES CAP GEMNI&ERAST AND IN 10 ANG-K 109 6505-1720 TECH POINT SINGAPORE 569059,OFF:AT BANGKOK THAILAND & PLACE NOT KNOW. BY ADV. SRI.B.GOPAKUMAR RESPONDENT(S): --------------- 1. ASA SANJAY,D/O.N.N.KUMAR,SHIRDHI,V.H.109 UPPER MERIDIAN ROAD,KURAVANKONAM,TVM.,WORKING IN SINGAPORE,R/AT.BLOCK NO.170,07-465,AVENUE 4,STREET 13,ANGMOKIO,SINGAPORE-560117,REP.BY P/A.HOLDER MR.N.N.KUMAR,S/O.PROF.E.P.N.PILLAI,70 YRS,R/AT. SHIRDHI,V.H.109,DO.ROAD,KURAVANKONAM,TVM-695003. 2. ADITI SANJAY, AGED 13 YEARS, D/O.SANJAY SASIDHARAN, NOW RESIDING AT SHIRDHI, V.H.109, UPPER MERIDIAN ROAD, KURAVANKONAM, THIRUVANANTHAPURAM-695003. 3. SAMEER SANJAY, AGED 10 YEARS, S/O.SANJAY SASIDHARAN, NOW RESIDING AT SHIRDHI, V.H.109, UPPER MERIDIAN ROAD, KURAVANKONAM, THIRUVANANTHAPURAM-695003. ADV.SMT.K.KUSUMAM FOR RESPONDENTS. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2011, ALONG WITH CO NO.72 OF 2010 THE COURT ON 07/06/2011 PASSED THE FOLLOWING: ## **K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A.No. 298 of 2010 & Cross Objection No. 72 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2011 ## **JUDGMENT** ## **Joseph Francis, J.** The above appeal is filed by the respondent in O.P. No. 643 of 2006 on the file of the Family Court, Thiruvananthapuram. Respondents 1 to 3 herein are the petitioners 1 to 3 in that Original Petition, which was filed by them for enhancement of maintenance. 2. The case of the petitioners in O.P. 643 of 2006 is briefly as follows: The marriage between the first petitioner and the respondent was solemnised on 7.12.1994 at Thiruvananthapuram and petitioners 2 and 3 were born out of the said wedlock. Later the marriage was dissolved by a decree of divorce passed in O.P. No. 832 of 2002. There was one more case between the parties as O.P. No. 803 of 2002 for getting custody of the children. 2 ## Mat.A.No. 298 of 2010 After prolonged litigation, the parties had decided to settle all the disputes and accordingly the Original Petitions were disposed of on the basis of a compromise. At that time the respondent was working as a consultant Manager in Singapore and he was drawing a monthly salary of Singapore Dollars 12000, which is equivalent to Rs.3,12,000/-. At that time, for the purpose of compromise, the first petitioner had agreed to receive monthly maintenance at the rate of the Rs.2,500/each per month for the children and she did not take the opportunity to bargain herself for raising the maintenance expenses of the children in accordance with the status, income and ability of the respondent. Thus she was constrained to concede to the offer which was made by the respondent, though it was absolutely inadequate and insufficient to meet the needs of the children. 3. The condition which existed at the time of compromise have been changed considerably. The first petitioner is now working in Singapore and she gets salary of Singapore Dollars 2000 only. This amount is absolutely insufficient for her survival in Singapore. She is Mat.A.No. 298 of 2010 3 not able to send any money to her children to meet their needs. The children now need not less than Singapore dollars 2000 each per month. The respondent is now getting a salary of Singapore Dollars 15000, which is equivalent to Indian Rs.4,00,000/-. The 1[st] petitioner is having every right and liberty to take the children to Singapore and to educate them there by giving them the best facilities available in accordance with the financial capacity and status of the respondent. So the prayer of the petitioners in the O.P. was that the petitioners 2 and 3 may be granted monthly maintenance at the rate of Singapore Dollars 2000 each and the said amount may be realised by charge on the petition A schedule property belonging to the respondent. 4. The respondent in the O.P. has filed written statement contending as follows. The O.P. is not maintainable either in law or on facts. The O.P. is hit by the principles of res-judicata. There is intentional suppression of material facts. It is true that the respondent had been working as a consultant Manager in Singapore, but he lost the job presumably on the complaint of the 1[st] petitioner. Then he Mat.A.No. 298 of 2010 4 started functioning as free lance consultant and it was thereafter the compromise in O.P. No. 803 of 2002 and 832 of 2002 was arrived at. His present income is below the income which he was deriving out of his employment with M/s. CAP Gemini Singapore. There is no change of circumstances warranting enhancement of maintenance. The 1[st] petitioner is well employed at Singapore and her salary is much more than Singapore Dollars 2000. There is no cause of action for the present O.P. 5. In the Family Court, on the side of the petitioners the Power of Attorney Holder and father of the first petitioner was examined as PW1 and Exts.A1 to A19 were marked. No evidence was adduced from the side of the respondent. The learned Family Court, on considering the matter, allowed the Original Petition in part as follows: “The O.P. was allowed with modification enhancing maintenance allowance to the petitioners 2 and 3 from Rs.2,500/- to Rs.10,000/- each per month with effect from the date of petition i.e., from 5.7.2006 and the 1[st] petitioner 5 ## Mat.A.No. 298 of 2010 is allowed to recover the amount so granted for and on behalf of the minor petitioners 2 and 3 from the respondent and his assets. Parties will bear their respective costs.” Against that judgment, the respondent filed this appeal. Petitioners 1 to 3 filed Cross Objection No.72 of 2010 for enhancement of maintenance as claimed in the Original Petition. 6. Heard learned counsel for the appellant and the learned counsel for the respondents. 7. The learned counsel for the respondent, relying on the decisions reported in **Byram Pestonji Gariwala v. Union Bank of India** ((1992) 1 SCC 31) and **Shankar Sitaram Sontakke v. Balkrishna Sitaram Sonatakke** ( AIR 1954 SC 352), argued that a compromise decree, if not vitiated by fraud, misrepresentation, misunderstanding or mistake, is binding on the parties and operates as res judicata as also estoppel between the parties. The learned counsel for the appellant, relying on the above decisions, argued that since the petitioners have entered into a compromise in O.P.No. 803 of 2002 and 6 ## Mat.A.No. 298 of 2010 maintenance for the two children was fixed as Rs.2,500/- each per month, the petitioners are estopped from claiming enhanced maintenance. But the decisions cited above are not applicable to the facts of the present case. In the first decision, the Supreme Court was considering the question whether the counsel representing the parties was competent to sign the compromise on behalf of the parties. In the second decision the Apex Court was dealing with a compromise decree in a partition suit. 8. Section 25 of the Hindu Adoption and Maintenance Act, 1956 provides that the amount of maintenance whether fixed by a decree of a Court or by agreement, either before or after the commencement of the Act, may be altered subsequently if there is a material change in the circumstance justifying such alteration. As the right of claiming maintenance is statutorily granted to the petitioners under Section 25 of that Act, there is no question of resjudicata arising in the suit and the suit will have to be decided on merits. The amount of maintenance whether fixed by a decree of court or by an agreement may be altered Mat.A.No. 298 of 2010 7 subsequently if there is material change in the circumstance justifying such alteration. 9. The learned counsel for the appellant submitted that the compromise was entered into when the first petitioner was unemployed and the employment income admitted by her in the Original Petition ought to have been taken as a circumstance to reject the Original Petition. The learned counsel for the appellant submitted that the claim of the Power of Attorney Holder of the petitioners that an amount of Rs.30,000/- per month is required for giving education for the minor petitioners 2 and 3 at Thiruvananthapuram ought to have been disbelieved by the Family Court. 10. The learned counsel for the respondents submitted that the respondent in the Original Petition did not answer to the interrogatories delivered to him by the petitioners under Order 7 Rule 11 C.P.C. and therefore the Court ought to have presumed that if he answered the interrogatories it would have been adverse to his interest. The learned counsel for the respondents submitted that Rs.10,000/- per head Mat.A.No. 298 of 2010 8 granted by the Family Court as maintenance is too low and that the actual amount to be paid by the first petitioner for meeting the educational and other expenses of the children if they are educated in Singapore is very high. 11. The learned counsel for the respondents submitted that the Family Court should have and ought to have granted maintenance at the rate as claimed in the plaint at 2000 Singapore Dollars (Rs.50,000/-). When PW1 was asked about the salary of the first petitioner he pretends ignorance. Admittedly at present the minor children are studying at Trivandrum. Ext.A19 is the copy of the letter issued from Sathyam Computer Services Ltd. dt.3.5.2007 showing that the appellant was getting more than Rs.60,000/- per month as salary. Ext.A6 series to A17 series are the documents produced by the petitioners to show the educational expenses of both minor children. 12. According to the first petitioner, her salary income at present is not sufficient to meet her own expenses and that she is intending to take the children to Singapore to educate them if the Mat.A.No. 298 of 2010 9 appellant is prepared to meet the expenses of the children. The learned counsel for the appellant pointed out that, the education in Singapore is free, and the appellant is prepared to meet the fees, if any, to be paid. The learned counsel for the respondent on instruction submitted that the respondent is not agreeable for the same. Both the minor children are now studying at Trivandrum and the documents produced by the petitioners will not show that the average educational expenses for each child be more than Rs.5,000/- per month. Considering the financial ability of the appellant and the educational expenses and other expenses of the minor petitioners, we are of the view that giving Rs.7,500/- per month as maintenance for each child would be just and reasonable. 13. Accordingly this appeal is allowed in part and the judgment in O.P.No.643 of 2006 on the file of the Family Court, Thiruvananthapuram is modified and the maintenance allowed to petitioners 2 and 3 is modified and is fixed as Rs.7,500/- each per month with effect from the date of the petition, i.e. from 5.7.2006 and Mat.A.No. 298 of 2010 10 the first petitioner is allowed to recover the same on behalf of the minor petitioners from the respondent and his assets. Cross Objection is dismissed. The parties are directed to suffer their respective cost in the appeal and in the cross objection. Sd/- **(K.M. JOSEPH)** Judge Sd/- **(M.L. JOSEPH FRANCIS)** Judge tm (True copy) P.S. to Judge.