RATHINA MARIE PREMA Vs. MARCEL FERNANDOS

JUDGEMENT

(1.) The 1st petitioner/wife and the 2nd petitioner/minor son, approached this Court, challenging the order of 2nd Additional Sessions Judge, Pondicherry, made in Crl. R. P. No. 2 of 1989, dated 16-11-1990, dismissing the claim of maintenance by the petitioners herein by setting aside the order of learned Sub-Divisional Judicial Magistrate, Pondicherry, made in M. C. No. 4 of 1987, dated 28-10-1988, who awarded maintenance to the wife and minor child.

(2.) The wife Rathina Marie Prema, on her behalf and on behalf of her minor son Arokianathan, filed a petition claiming maintenance from her husband, the respondent herein. Admittedly, the 1st petitioner is a divorcee. In the divorce proceedings in O. P. No. 112 of 1983, on the file of Principal Sub-Court, Pondicherry, a joint memo-Ex. R.3, was filed, under which the 1st petitioner/wife had waived her claim for maintenance. However, the trial Court without considering that document, awarded maintenance at Rs. 125/= to the wife and Rs. 75/= to minor son. Being aggrieved, the husband filed a revision, before the Sessions Court. On considering the joint memo filed in the divorce case, wherein the wife waived her claim for maintenance, the Sessions Court, allowed the revision, holding that both the petitioners herein, viz., the wife and the minor son are not entitled to claim maintenance. Hence the revision by the petitioners.

(3.) At the outset I may mention, that the claim of the 1st petitioner/wife has to be rejected on two grounds. The order of the Civil Court, in O. P. No. 112 of 1983, granting custody of the minor child to the 1st petitioner/wife is based on the joint memo filed by the wife and husband, wherein the wife waived her claim for maintenance. Moreover, her petition for maintenance, before the civil Court was dismissed on the very same ground. That apart, only on the basis of the order of divorce and the waiver of claim of maintenance by the wife, the petitioner did not make any payment to the wife. So, it cannot be said, that the husband neglected to maintain his wife, the 1st petitioner herein.