BIJU Vs. ADEEP

JUDGEMENT

(1.) 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 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 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 re- opening 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.