Varada Siva Rama Krishna vs P/.Archana Atchamamba
2022 Latest Caselaw 4113 Tel

                    THE HON'BLE JUSTICE G.SRI DEVI
                                      AND
              THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
                           F.C.A.NO.65 OF 2010
              JUDGMENT    (Per the Hon'ble Smt. Justice M.G.Priyadarsini)

The appellant herein is the husband and the respondent is his

divorced wife. The parties will be referred as per the array in the

present appeal.

2. The respondent herein filed O.P.No.757 of 2005 on the file of

Additional Family Court at Hyderabad under Section 25 of the Hindu

Marriage, Act, 1955 (for short 'the Act') read with Section 7 of the

Family Courts Act, 1984 against the appellant herein, seeking to grant

maintenance of Rs.4,000/- per month, or in the alternative an amount

of Rs.5,00,000/- as permanent alimony.

3. The trial court vide order and decree dated 04-02-2010

partly allowed the aforesaid original petition by granting an amount of

Rs.2,000/- towards maintenance of the respondent from the date of

petition, or else, the appellant herein has to pay to the respondent an

amount of Rs.4,00,000/- as permanent alimony. The monthly

maintenance was directed to be paid on or before 10th of every month.

4. Assailing the order and decree passed by the trial court

dated 04-02-2010 in granting maintenance, the present appeal is

filed.

5. The admitted facts on record are that the respondent herein

has earlier filed O.P.No.766 of 2003 on the file of Judge, Family Court,

Hyderabad against the appellant herein under Section 13(1)(ia) of the

Act seeking divorce. During the pendency of the petition, the

respondent filed I.A.No.540 of 2003 in O.P.No.766 of 2003 seeking for

recovery of Rs.70,000/-, given by her parents towards

'pasupukumkuma' and Rs.30,000/- towards alimony. It is stated that

the appellant initially paid an amount of Rs.35,000/- and

subsequently as per the directions of the trial court, paid balance of

Rs.65,000/-. Vide order and decree dated 06.10.2004, the trial court

allowed the said O.P.No.766 of 2003, and the operative portion of the

order reads as under:

"Thus in view of my foregoing discussion, I am of the opinion that the respondent treated the petitioner cruelly and that she is entitled to have divorce against him. Accordingly, the point is answered.

In the result, the petition is allowed and the marriage dated 07.04.2002 held between the petitioner and respondent is dissolved by way of decree of divorce. No costs."

6. Thereafter, the present O.P.No.757 of 2005 was filed under

Section 25 of the Act read with Section 7 of the Family Courts, Act,

1984 seeking maintenance.

7. The case of the respondent/ wife in the petition is that she is

solely dependant on her parents after divorce, and her mother is

suffering with paralysis and her father retired from Government

service and with the meager pension, all of them are surviving.

8. It is further stated that out of Rs.1,00,000/- paid by the

appellant, Rs.70,000/- was towards pasupukumkuma, which the

appellant paid back to the respondent and the balance of Rs.30,000/-

granted to the respondent towards maintenance is so meager and that

respondent cannot maintain with the said meager amount and that

without at least Rs.5,000/-, per month, it is difficult to meet both the

ends.

9. The further contention of the respondent is that the

appellant is employed in a pharmaceutical company and is drawing

Rs.10,000/- per month as his salary and after the divorce, the

respondent has not remarried and is continuing to stay with her

parents and that she has no other source of income and therefore, she

is entitled to claim maintenance from the appellant, especially due to

changed circumstances.

10. The appellant filed counter affidavit, and stated that as per

the settlement between the parties, he has paid in all an amount of

Rs.1,00,000/- towards full and final settlement as future maintenance

and hence the respondent is not entitled to claim any maintenance.

11. He further submitted that he is not drawing an amount of

Rs.10,000/- per month and that his old aged mother is living with

him in a rented house, and that he is working in a private firm, and it

is very difficult to meet the day-to-day expenditure. That, the

respondent herself is an employee, and her father and brother are also

having sufficient income. After divorce he has remarried and got a

child and that there are no changed circumstances for the respondent

to claim maintenance, and accordingly sought to dismiss the petition.

12. Basing on the above pleadings, the trial court framed the

following issues for trial:

1. Whether this O.P. is maintainable or not?

2. What are the change of circumstances?

3. If so, what is the quantum of maintenance to be paid by the respondent to the petitioner?

13. In support of her claim, the respondent examined herself as

P.W.1 and also examined her father as P.W.2 and got marked Exs.P-1

and P-2.

14. On behalf of the appellant, he examined himself as R.W.1

and got marked Exs.R-1 to R-3.

15. Appreciating the entire evidence, the trial court partly

allowed the petition. Assailing the same, the present appeal is filed.

16. This court on 31.05.2010 granted interim stay, and the

operative portion of the order reads as under:

"Having regard to the facts and circumstances of the case, we grant stay of all further proceedings of the decree and order dated 4.2.2010 in O.P.No.757 of 2005 on the file of the Court of Judge, Additional Family Court, Hyderabad, subject to the condition of the petitioner deposits half of the arrears of maintenance amount up to the month of May, 2010, within six months from today and continue to deposit the maintenance amount at the rate of Rs.2,000/- per month payable from the month of June, 2010 by 10th of every month. In default, the interim order stands vacated. On such deposit of the maintenance amount, the respondent is permitted to withdraw the same without furnishing any security."

17. Sri Ram Gopal, learned counsel appearing for the appellant

mainly contended that in pursuance of the settlement entered into

between the parties, the appellant had paid Rs.1,00,000/- towards full

and final settlement, and thereafter the decree of divorce was granted,

and, therefore, the present petition filed for further maintenance is not

at all maintainable. He further, reiterating the averments made in the

counter affidavit filed before the trial court, sought to set aside the

impugned order.

18. On the other hand, Sri A. Mahadev, learned counsel

appearing for the respondent, supporting the impugned order and

decree of the trial court, sought for dismissal of the appeal.

19. In view of the facts and circumstances of the case, and rival

submissions of both the counsel, the issue that arises for

consideration is, 'whether the impugned order warrants any

interference?'

20. The main contention of the learned counsel for the

appellant is that as the parties have entered into settlement dated

19.02.2003 and in pursuance of the same, as the appellant has paid

Rs.1,00,000/- towards full and final settlement and that both the

parties have agreed not to indulge in any civil or criminal cases, the

present application filed for maintenance is not maintainable.

21. In a judgment of a learned single Judge of this court in

A.S.No.4500 of 2004 dated 14.07.2002 similar facts are involved. The

husband therein pleaded in a petition filed under Sections 18 and 20

of the Hindu Adoption and Maintenance Act, 1956, that he was not

liable to pay any maintenance, in view of the fact that wife executed

an agreement relinquishing her right to receive maintenance. This

court, while not accepting his contention, held that even if the wife

executes an agreement relinquishing her right to receive any

maintenance in future, that would be contrary to the public policy

and unenforceable, and that she would be entitled to seek for

maintenance, if she is unable to maintain herself. The relevant

portion of the order is as under:

26. The law on the aspect of maintenance is no longer res integra. The High Court of Bombay in the decision reported in RAMESHWAR S/O SANDU KACHKURE vs. STATE OF MAHARASHTRA1, held that "an agreement, by which the wife relinquishes her right to receive maintenance any time in future, is contrary to public policy and consequently unenforceable." Similar is the view expressed by different High Courts in TEJASWINI D/o ANANDRAO TAYADE AND ANR. Vs. CHANDRAKANT KISANRAO SHIRSAT AND ANR2, RAJESH R. NAIR vs. MEERA BABU3, SHAHNAZ BANO v. BABU KHAN4 , RANJIT KAUR v. PAVITTAR SINGH5, RAMCHANDRA LAXMAN KAMBLE v. SHABHA RAMACHANDRA KAMBLE6.

27. Thus from the above judgments, it is clear that even if the wife executes an agreement relinquishing her right to receive any maintenance in future, that would be contrary to the public policy and unenforceable, and that she would be entitled to seek for maintenance, if she is unable to maintain herself. In the present case, however the husband failed to prove the alleged agreement, and it is a fact that wife is living separately with the girl child, and is unable to maintain herself, and hence is claiming maintenance. In these circumstances, and in the light of the settled legal position, which is noted above, the judgment of the trial court in totally rejecting the claim of the plaintiff No.1 for maintenance, is highly deplorable, and cannot be sustained.

22. Apart from the above legal position, it could be seen that

during the pendency of the present O.P., when the trial court rejected

the O.P. for grant of maintenance, on the ground that it is not

Crl.W.P.No.295 of 2017 dated 16.03.2018

2005(3) MH. L.J. 137

2013 CRI.L.J. 3153

1985 SCC OnLine Bom 200

1991 SCC OnLine P & H 693

2018 SCC OnLine Bom 7039

maintainable, the respondent filed FCA.No.11 of 2008, and this court

vide order dated 23.04.2008, considering Section 25 of the Act, set

aside the order of the trial court, and remanded the matter. This

court held that Section 25(1) of the Act is incidental to the decree

granting substantial relief under the Act. That sub-section (2) of

Section 25 provides that if the court is satisfied that there is a change

in the circumstances of either party at any time after granting

maintenance under sub-section (1), the court may at the instance of

either party vary, modify or rescind such order passed under sub-

section (1), and that therefore, the right of maintenance is a

continuing right even through the decree was granted. It was further

held that there is no bar for filing this O.P. for grant of maintenance

though the matter had already reached finality.

23. The above order passed by the Division Bench of this court

has attained finality, as no appeal is stated to have been preferred.

Hence, the appellant is estopped to raise this ground and in view of

the aforesaid order, the trial court was only required to decide the

quantum of maintenance to be granted to the respondent.

24. Now coming to the issue of maintenance, the case of the

respondent, who was examined as P.W.1, is that after grant of

divorce, she has been living with her parents, and has not remarried,

and her father has retired from Government service, and is getting

meager pension, and that her parents are suffering from ailments and

that she has no independent source of income.

25. The appellant, who was examined as R.W.1 though stated

that he is getting only an amount of Rs.10,000/- per month, failed to

file any salary certificate to substantiate his stand and further, he

could not also prove that the respondent is working somewhere and

has sufficient means to maintain herself.

26. Considering these facts and circumstances, the trial court,

in our considered view, rightly granted maintenance of Rs.2,000/- per

month, which is very reasonable when compared to the present

standard of living, from the date of the petition, or alternatively

directed the appellant to pay an amount of Rs.4,00,000/- towards

permanent alimony.

27. For the foregoing reasons, we do not find any reason to

interfere with the order and decree of the trial court; the appeal is

devoid of merits and the same is liable to be dismissed.

28. In the result, the appeal is dismissed. Interlocutory

Applications pending, if any shall stand closed. No order as to costs.

-----------------------------------------

G.SRI DEVI,J

--------------------------------------------

M.G.PRIYADARSINI,J DATE: 11--08--2022 AVS