LAWS(KER)-1978-12-15

DAMODARAN Vs. LAKSHMIKUTTY AMMA

Decided On December 21, 1978
DAMODARAN Appellant
V/S
LAKSHMIKUTTY AMMA Respondents

JUDGEMENT

(1.) The two questions which arise for determination in these Criminal Revision Petitions, Crl. R. P. No. 57/77 filed by the husband and Crl. R. P. No. 64/77 filed by the wife, are whether a party can contract out of the statutory obligation to give maintenance arising under S.125 and 127 of the Code of Criminal Procedure and whether the maintenance awarded in the case is disproportionate to the income of the husband.

(2.) The petitioner in Crl. R. P. No. 57, now a Headmaster in an Upper Primary School, married the petitioner in Crl. R. P. No. 64/77 in the year 1963 and during their wedlock two daughters Vanaja and Thulasi, now aged 11 and 9 respectively, were born to them. Alleging neglect on the part of the husband to maintain, a petition was filed by the wife before the Additional Judicial Magistrate of the First Class, Tellicherry claiming maintenance for herself and the children. The Magistrate passed an order on July 1, 1974 granting maintenance at the rate of Rs. 40/- per mensem to the wife and Rs. 20/- each to the minor children. Thereafter, in the year 1975, the wife filed M. C. No. 57/75 before the same court under S.127 of the Code of Criminal Procedure claiming enhanced maintenance for herself and for her two minor children alleging change in their circumstances. This application was resisted by the husband on the ground that as per Ext. D1 contract, the wife and the children have given up their right to claim enhanced maintenance and there has been no change of circumstance to warrant interference with the order of maintenance previously passed. The learned Magistrate, on a consideration of evidence adduced on both sides, held that the wife and children are not bound by Ext. D1 agreement and that there has been a change in the circumstance since the passing of the first order and awarded maintenance at the rate of Rs. 70/-per mensem to the wife and Rs. 40/-each to the two minor children. This order was challenged by both the parties before the Court of Session, Tellicherry, the husband filing Crl. R.P. No. 65/76, and the wife Crl. R. P. No. 77/76. That court disposed of these petitions by a common order holding that, although there has been a change in the circumstances, the wife is bound by Ext. D1 agreement and reduced the amount of maintenance granted to the wife to Rs. 40/- per mensem, but enhanced the maintenance granted to the minors by awarding Rs. 70/- and Rs. 60/- respectively per mensem.

(3.) This order is challenged by both parties, the husband on the ground that the minors are not entitled to enhanced maintenance and the quantum of maintenance awarded to them is excessive and the wife con tending that Ext. D1, which is inoperative and unenforceable under the Indian Contract Act cannot take away her right to claim enhanced maintenance under S.127 of the Code of Criminal Procedure.