RAMASAMI Vs. RUKMANI

JUDGEMENT

(1.) This revision is against the order of the learned Sessions Judge, Periyar District at Erode in Crl.R.P. No. 38 of 1991 reversing the order of the Judicial Magistrate, Kangeyam in M.C. No.11 of 1990 in the claim of maintenance under Sec. 125, Code of Criminal Procedure.

(2.) The first respondent herein is the wife of the revision petitioner and after the birth of the second respondent herein, due to the incompatibility between them, they were living separately from the year 1982 onwards. The first respondent filed the petition under Sec. 125 Code of Criminal Procedure claiming maintenance alleging that her husband, the revision petitioner herein, had deserted her and also had married a second wife and therefore she is entitled to claim maintenance. She has also mentioned in the petition that on 13.7.1982 in the presence of the Panchayatdars Rs. 3,000 to the first respondent and Rs. 1,000 to the second respondent was paid as an interim arrangement for their maintenance and as the husband is now employed in Jeeva Transport Corporation drawing a salary of more than Rs. 1,500 they are entitled to maintenance at the rate of Rs.300 and Rs. 200 respectively. The learned Magistrate, Kangeyam, dismissed the petition holding that the wife has executed a registered release deed giving up her claim for maintenance after receiving a lumpsum payment of Rs. 4,000 towards maintenance for herself and her children and she is not entitled to again claim maintenance under Sec. 125; Code of Criminal Procedure. On revision before the learned Sessions Judge, Periyar District, he reversed the findings of the learned Judicial Magistrate holding that the arrangement under the release deed 13.7.1982 was only temporary and therefore the revision petitioner herein is bound to pay maintenance to his wife and daughter. He fixed the maintenance at Rs. 300 to the wife and Rs. 200 to the child. As against this order of the learned Sessions Judge, the husband has come forward with this revision.

(3.) The learned counsel appearing for the petitioner submits before me that though the first respondent herein was married to the revision petitioner in the year 1977, after a few years. She was reluctant to live with the revision petitioner, resulting in a panchayat, in which both parties had agreed to live separately and Ex. R-1 registered agreement also was executed by the first respondent after receiving a sum of Rs. 3,000 for herself and Rs. 1,000 for her daughter towards their maintenance and having agreed to live separately from her husband after receiving a lumpsum payment and also after giving up her right of maintenance under this document, the wife is not entitled to invoke Sec. 125, Code of Criminal Procedure claiming maintenance now. The learned counsel relied upon two decisions of this Court in Mohiswara Rao v. Durgamba, and Kameswaramma v. Thammanna, wherein it was held that a contract by a Hindu widow with her husbandTs coparceners to receive a fixed sum for maintenance and not to claim any increase in future maintenance even in case of change of circumstances, is a valid agreement and the widow is not entitled to claim any increase in the maintenance amount originally fixed even if there was change of circumstances. According to the learned counsel, in view of these decisions, as the first respondent had accepted Rs. 3,000 as maintenance for herself and Rs. 1,000 for her daughter under Ex. R-1 and has given up her right also to claim any maintenance in future, the right given up by them voluntarily under the registered instrument cannot be revived and therefore, the learned Sessions Judge is not correct in fixing the maintenance to the respondents herein. The learned Sessions Judge, Periyar District, has found that the arrangement under Ex. R-1 was only interim and therefore the wife and child are entitled to claim maintenance. But on a perusal of Ex.R-1, it does not seem to bean interim arrangement. It reads that the wife had given up her right of maintenance as she had received Rs. 4,000 as maintenance for herself and her daughter. Therefore, certainly it cannot be treated as an interim arrangement.