Court: MADRAS HIGH COURT
Bench: JUSTICE M. Karpagavinayagam
RATHINA MARIE PREMA & ANR. Vs. MARCEL FERNANDOS On 8 November 1996
Divorce between Husband and Wife on the basis of joint memo, Wherein the Wife had waived her Claim for Maintenance. Wife not entitled to claim maintenance unless order in divorce is set aside Order not binding on minor son. Minor son entitled to maintenance.
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.R3, 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.
4. Learned Counsel for the petitioner placed reliance on the decision of the Kerala High Court in Haroon v. Sainabha Beevi Zeenath & Ors., 1992 Cr.LJ 3275, in support of his submission that the husband has statutory obligation to maintain his wife and minor son. In the said decision it has been held that the husband cannot be permitted to contract out of such an obligation. The decision would not be applicable to the case on hand, since the agreement referred to in that case was entered into between the parties over the settlement arrived at out of Court. But, in this case, on the basis of the joint memo filed in a divorce case before the competent Civil Court, the impugned order has been passed. Unless the said order is set aside in appeal, it would stand in the way of wife, from claiming maintenance, especially when she failed to prove that her husband neglected to maintain her. As such, I am of the view, that the 1st petitioner/wife is not entitled to maintenance.
5. However, the order of the Sessions Court, rejecting the claim of maintenance to the minor son is liable to be set aside, on the following reasons. The action on the part of the wife, waiving her right from claiming maintenance from her husband, will not bind the minor son and the respondent cannot escape from the responsibility of paying maintenance to his minor son, by merely showing the joint memo filed in the divorce case, wherein the minor son was not a party. Moreover, the Civil Court itself, in I.A. No. 535 of 1986, held as referred to in the judgment of the Sessions Court, that the minor son is entitled to maintenance. There is no dispute regarding the fact that the child was born out of the wedlock between the 1st petitioner/wife and the respondent/husband. Hence, taking into consideration, the entire facts and circumstances of the case, and on going through the judgments of both the Courts below, I find that the minor son/2nd petitioner is entitled to maintenance at Rs. 75/- per month, as awarded by the Trial Court from the date of order of Trial Court, viz., 28.10.1988.
6. In the result, the revision is allowed in part. The order of learned 2nd Additional Sessions Judge, Pondicherry, in Crl.R.P. No. 2 of 1989, dated l6.11.1990 is set aside, in so far as it relates to the claim of the 2nd petitioner/minor son, is concerned. The order of learned Sub-Divisional Judicial Magistrate, Pondicherry, in M.C. No. 4 of 1987, dated 28.10.1988, is restored, in so far as the award of maintenance to the 2nd petitioner/minor son is concerned.
Revision partly allowed.