Father cannot Divest himself of his Liability to Maintain his Child by an Agreement with the Mother of the Child [JUDGMENT]

Maintenance – Compromise Decree - Whether the compromise decree passed by the court in the litigations between the father and the mother would preclude the daughters from claiming maintenance from the father – Held, The right of the daughters to get maintenance from the father was not forfeited by virtue of the agreement/compromise entered into between the mother and the father.

Contract Act, 1872 - S. 23 – What consideration and objects are lawful, and what not - A statutory right which has been conferred on a person under public policy cannot be waived by the said person by an agreement.

As per Section 23 of the Indian Contract Act, 1872, an agreement is unlawful, if it defeats the provisions of any law, or the court regards it as opposed to public policy. It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy. Where a contractual provision is against a specific statutory provision or if it would result in frustration of a right conferred by law, then it can be regarded as opposed to public policy. It shall not become valid even if the parties thereto agree to it. A statutory right which has been conferred on a person under public policy cannot be waived by the said person by an agreement.

Maintenance – The father cannot divest himself of his liability to maintain his child by an agreement with the mother of the child.

When the obligation on the father to maintain an unmarried daughter is recognised by a statute, it is a matter of public policy and not of an individual. The father cannot divest himself of his liability to maintain his child by an agreement with the mother of the child. It would definitely be the public policy that children should not be left dependent on public assistance or on charity. They should therefore be able to come to the court for maintenance, notwithstanding any agreement to the contrary.

Maintenance - Quantum of - Marriage expenses payable by the father to the daughters - financial capacity of the father has to be taken into consideration in determining the amount which the daughters are entitled to get from him. His means and income would be relevant.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K.ABDUL REHIM & R.NARAYANA PISHARADI, JJ.

Mat.Appeal No.841 of 2014

Dated this the 8th day of October, 2018

AGAINST THE JUDGMENT IN OP 582/2013 of FAMILY COURT, ATTINGAL DATED 04-03-2014

APPELLANTS:

VIKRAMAN NAIR

BY ADV. SRI.C.S.MANU

RESPONDENTS

AISHWARYA AND 2 OTHERS

BY ADVS. SRI.T.K.ANANDA PADMANABHAN SRI.M.BALAGOVINDAN

J U D G M E N T

R. Narayana Pisharadi, J

This appeal is filed challenging the judgment and decree passed by the Family Court, Attingal in O.P.No.582/2013.

2. The appellant was the father of the first and the second respondents and the husband of the third respondent. He died during the pendency of the appeal. His legal representative, his second wife, has been impleaded as additional second appellant in the appeal.

3. The petitioners in O.P.No.582/2013, who are the first and the second respondents in the appeal, shall be hereinafter referred to as 'the daughters'. The respondents in O.P.No.582/2013 shall be hereinafter referred to as 'the father' and 'the mother'.

4. The minor daughters filed O.P.No.582/2013 against their parents claiming Rs.1,17,000/- towards arrears of past maintenance. They also claimed Rs.4,500/- each per month from the parents towards future maintenance. The daughters also claimed Rs.15,00,000/- each towards their marriage expenses.

5. At the time of filing of the original petition by the daughters, their parents had obtained a decree of divorce and they had remarried.

6. The father filed counter statement in the case raising mainly the following contentions. He had instituted O.P.No.922/2005 against his wife, the mother of the petitioners, for granting a decree of divorce. She had filed M.C.No.125/2006 against him claiming maintenance for herself and also for the minor daughters. She had also filed O.P.No.1067/2005 against him for return of gold ornaments and money. Due to the intervention of mediators, the disputes between them were settled. As a part of the compromise entered into between the parties, he executed settlement deed No.2466/2008 in favour of the daughters in respect of 12 cents of property with a building therein. Thereafter, he and the mother of the petitioners filed a joint petition for divorce as O.P.No.1239/2008 and it was allowed by the court. The daughters and their mother had agreed that they will not claim any future maintenance from him. The marriage expenses of the daughters could be met by selling the property and the building gifted to them by him. He is working abroad as a driver and his monthly salary is only Rs.40,000/-. He had taken a loan from the bank and he had to pay Rs.23,000/- per month towards repayment of loan. As he has executed settlement deed in respect of the property in favour of the daughters, he is not liable to maintain them.

7. The mother of the minor daughters filed a statement supporting their claim against the father.

8. The original petition was filed by the daughters through their maternal grandmother as the next friend. During the pendency of the original petition, the daughters attained majority and the next friend was discharged.

9. During the trial of the case, PW1 was examined and Exts.A1 to A3 documents were marked on the side of the daughters. CPW1 was examined and Exts.B1 to B5 documents were marked on the side of the father. The mother got herself examined as CPW2.

10. The Family Court found that inspite of the compromise entered into between the father and the mother in the earlier cases and inspite of the execution of the settlement deed by the father in favour of the daughters, he was bound to maintain them. The Family Court granted a decree in favour of the daughters as follows:

“a) The 1st respondent (father) is directed to pay Rs.36,000/- (thirty six thousand) each as past maintenance to each of the petitioners with interest @ 6% per annum.

b) The 1st respondent (father) is also directed to pay future maintenance to the petitioners @ Rs.2500/- (two thousand five hundred) each from the date they attained majority until the date of their marriage.

c) The 1st respondent (father) is directed to pay Rs.5 lakhs (five) each towards the marriage expenses of each of the petitioners.

d) Petitioners are allowed to recover the above amounts from the 1st respondent and his assets with a charge on the petition schedule property.”

The appeal was filed by the father challenging the aforesaid decree passed against him.

11. We have heard learned counsel for the additional second appellant and also the first and the second respondents. We have also perused the records.

12. The father had instituted O.P.No.622/2005 against his wife (the mother) for granting a decree of divorce. The mother had instituted O.P.No.1067/2005 against the father for return of gold ornaments and money from him. She had also instituted proceedings as M.C.No.125/2006 against the father claiming maintenance from him for herself and for the two minor daughters. All these cases were settled between the father and the mother and they executed an agreement of compromise and they filed a joint petition for divorce and it was allowed by the court.

13. Ext.P3 is the copy of the decree in O.P.No.1067/2005. The compromise entered into between the father and the mother forms part of the decree in that case. The terms of the compromise are as follows:

“4. The respondent agreed to execute a settlement deed of his entire 12 cents of land and the double storied building situated therein in favour of minor children namely Aiswarya and Akhila for the well being of them and for their future life. The children shall own and enjoy the property as per conditions stated in the settlement deed.

5. The petitioner agreed that in the light of transfer of the above property and the building in favour of minor children the petitioner doesn't want any relief in O.P.1067/05 and M.C.125/06. The petitioner also agreed that she doesn't want any relief of past and future maintenance or any other claim and doesn't want any more expenses for matrimonial and other incidental expenses of the children from the respondent.

6. Petitioner and respondent herewith filed application for divorce by mutual consent and all the cases are settled.”

In the aforesaid compromise the petitioner is the mother and the respondent therein is the father.

14. Ext.B2 is the copy of the judgment in O.P.No.1067/2005. It shows that the aforesaid compromise was ordered to be appended to the decree in that case. In other words, the aforesaid compromise had become part of the decree in that case.

15. Learned counsel for the appellant contended that as per the terms of the compromise entered into between the parties, the mother had agreed that she will not claim any relief of past and future maintenance or any other claim from her husband (the father). Learned counsel would contend that she had also waived the right to get marriage expenses and other incidental expenses of the daughters from their father. Learned counsel would submit that in the light of the compromise entered into between the father and the mother and in the light of the fact that the father had executed Ext.B4 settlement deed in favour of the daughters gifting them 12 cents of property with a building therein, the daughters are estopped from claiming maintenance and marriage expenses from him.

16. As per the terms of the compromise entered into between the father and the mother, the father had executed Ext.B4 settlement deed in favour of the daughters in respect of 12 cents of property with a building therein. The compromise entered into between the father and the mother is mentioned in Ext.B4 settlement deed. It is also stated in Ext.B4 settlement deed that the purpose of executing the settlement deed was to meet the expenses of the future life of the daughters and their maintenance and educational expenses and also towards the share which they may get after his death.

17. The question now arises whether the execution of the settlement deed by the father in favour of the daughters gifting them 12 cents of property with a building therein in terms of the compromise entered into between him and the mother would preclude the daughters from claiming maintenance and marriage expenses from the father.

18. Section 20(1) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act') provides that a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. Section 20(2) of the Act provides that a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. Section 20(3) of the Act states that the obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends so long as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

19. Section 20(1) of the Act enjoins upon a Hindu to maintain his or her legitimate or illegitimate children. Section 20(3) of the Act narrows down the legal obligation to maintain an unmarried daughter in so far as she is unable to maintain herself from her own earnings or property. A Hindu is under legal obligation to maintain his unmarried daughter, in so far as such unmarried daughter is unable to maintain herself from her own source of income. This obligation arises from the relationship between the parties. This obligation is personal and legal in character (See Commissioner of Gift Tax v. Indira Devi: 1998 (2) KLT 501, Viswambharan v. Dhanya : 2005 (1) KLT 708 and Ambika v. Aravindakshan : 2018 (1) KHC 32: 2018 (1) KLT 125). The right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Act (See Jagdish Jugtawat v. Manju Lata: (2002) 5 SCC 422).

20. As per Section 3(b)(ii) of the Act, "maintenance" includes, in the case of an unmarried daughter, the reasonable expenses of and incident to her marriage. Even in case of daughters who are grown up and living with mother and maintained by mother who is employed and earning salary, they are entitled to get financial assistance from their father at the time of their marriage (See Smt. Sneh Prabha v. Ravinder Kumar: AIR 1995 SC 2170).

21. The obligation of a Hindu father to maintan an unmarried daughther, who is unable to maintain herself, is personal and legal in nature. Section 20 (3) of the Act recognises that right. Is it a right which would get forfeited by virtue of an agreement or compromise entered into between the mother and the father?

22. When an agreement is entered into by the wife and the husband, as a part of compromise filed in the court or otherwise, whereby the wife relinquishes or waives the right to claim maintenance in future from the husband, for herself or for the minor children, such an agreement is opposed to public policy and it does not preclude her from claiming maintenance under Section 125 of the Code of Criminal Procedure. This is the consistent view taken by various High Courts. It has been held that statutory right which has been conferred on a person under a public policy, cannot be waived by the said person by an agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872 and the same cannot be enforced in a court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. This is a matter of public policy and not of an individual (See Ranjit Kaur v. Pavittar Singh : 1992 Cri.L.J 262, Hanamant Basappa Choudhari v. Laxmawwa: 2002 Cri.L.J 4397, Rajesh Kochar v. Reeta Kumari: 2002 Cri.L.J 3357, Sushil Kumar v. Neelam: 2004 Cri.L.J 3690, Mahesh Chandra Dwivedi v. Manorma : 2009 Cri.L.J 139 and Varshaben Himantlal Vejani v. State of Gujarat: 2017 Cri.L.J 869).

23. As early as in 1961, this Court had held in Abubacker v. Katheesa : 1961 KLT 581, that an agreement between the father and the mother that on payment of a lump sum, the father need not pay any further maintenance, is not binding on the child because the obligation to maintain the child is statutory and the parties cannot contract themselves out of it.

24. In Seshi Ammal v. Thaiyu Ammal : AIR 1964 Mad 217, the question arose for consideration whether a Hindu wife, who had agreed to receive maintenance at a particular rate, binding herself not to claim a higher rate even if the circumstances were to change, could maintain a suit for increase of maintenance. The Madras High Court held that after all, the true principle is that a person liable to maintain must do so and it will be indeed inequitable for that obligation to be whittled down by technical rules like res judicata and binding nature of a contract.

25. In Damodaran v. Lakshmikutty Amma: 1979 KLT 543, the question arose whether a party can contract out of the statutory obligation to give maintenance arising under Sections 125 and 127 of the Code of Criminal Procedure. It was held that no party can be permitted to contract himself out of such a statutory obligation and if permitted, it would certainly be defeating a legal right statutorily conferred under Sections 125 and 127 of the Code of Criminal Procedure and that a contract taking away a statutory right is opposed to public policy.

26. In Sadasivan Pillai v. Vijayalakshmi : 1987 (1) KLT 381, it has been held that the relinquishment of the right to claim maintenance by the wife in a joint petition for divorce will not prevent her from claiming maintenance under Section 125 of the Code of Criminal Procedure.

27. In Haroon v. Sainabha : 1992 (1) KLT 868, a contention was raised that the wife and child cannot claim maintenance from the husband because in an earlier proceedings the matter was settled out of court and the wife had executed an agreement in favour of the husband whereby all the disputes regarding maintenance were permanently settled. This Court repelled the contention holding that there is statutory obligation of the husband to maintain his wife and minor son and he cannot be permitted to contract out of such an obligation and such agreement is opposed to public policy. It was held that a waiver in derogation of a statutory right cannot be recognised by the court as it affects public policy and as it is against the very statutory obligation imposed on a husband to maintain his wife and children who are unable to maintain themselves.

28. In Geeta Satish Gokarna v. Satish Shankarrao Gokarna : AIR 2004 Bom 345, it has been held that the term of a compromise to the effect that the wife would not a claim any maintenance or alimony in future from the husband is against public policy and it has to be treated as non-est.

29. In Nizumal Haq v. Phool Begum: 2006 (1) MPLJ 272, it has been held that statutory right of children to maintenance cannot be bartered, done away with or negatived by the father by setting up an agreement to the contrary. Such an agreement is against public policy. It has been held that the agreement whereby the statutory right of children to maintenance was relinquished may not per se be illegal but it cannot be given effect to being a negation of the statutory right and being opposed to public policy.

30. In Rajesh R.Nair v. Meera Babu : 2013 (1) KHC 812, the facts were similar to the facts of the present case. In that case, there were several litigations between the husband and the wife. While so, all the pending disputes between them were settled by an agreement executed by them on mediation. Accordingly, joint compromise petitions were filed before the Family Court and the cases were disposed of by the Family Court in terms of the compromise. The agreement between the parties provided that the wife shall forgo her right to claim maintenance against the husband on condition that the husband shall pay an amount in lump in full and final settlement of all her claims. She received that amount from the husband. The wife, thereafter, instituted proceedings against the husband under Section 125 of the Code of Criminal Procedure claiming monthly maintenance. The husband raised a contention that the claim is not maintainable in the light of the agreement entered into between the parties earlier as the parties had already settled all monetary and other disputes between them and the wife had waived her right to claim maintenance. This Court rejected the contention of the husband holding that the right to claim maintenance provided to the wife is a statutory right and the agreement by which the wife had given up her right to claim maintenance from the husband is opposed to public policy and void and hence, unenforceable.

31. In Bipin v. Meera : 2016 (5) KHC 367, in a joint application for divorce, the wife had undertaken that she would not claim money, ornaments or future maintenance. Subsequently, she filed application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking various reliefs. The former husband resisted the claim on the basis of the consent decree earlier passed by the court. It was held that contracting out of the statutory rights conferred on the wife is against public policy and hence cannot be recognized, unless it was proved that there was a mutually satisfactory settlement of all claims.

32. In Bai Tahira v. Ali Hussain Fidaalli Chothia : AIR 1979 SC 362, the question arose whether a divorced wife would lose her right to claim maintenance for herself under Section 125 of the Code of Criminal Procedure, on making a declaration in the compromise resulting in a consent decree that she had no further claim against the husband. The wife had got right in immovable properties and she had also received Rs.5,000/- as mehar from the husband. The trial court held that the former husband, was liable to pay maintenance to his former wife and the children inspite of receiving the customary dues and other rights in the properties. The Supreme Court upheld the order of the trial court.

33. In Nagendrappa Natikar v. Neelamma : AIR 2013 SC 1541, the question for consideration was whether a compromise entered into by husband and wife under Order XXIII, Rule 3 of the Code of Civil Procedure, agreeing for a consolidated amount towards permanent alimony, thereby giving up future claim for maintenance, accepted by the court in a proceeding under Section 125 of the Code of Criminal Procedure, would preclude the wife from claiming maintenance in a suit filed under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. The Apex Court held that the suit under Section 18 of the Act is perfectly maintainable, inspite of the compromise reached between the parties under Order XXIII, Rule 3 of the Code of Civil Procedure and accepted by the court.

34. As per Section 23 of the Indian Contract Act, 1872, any consideration or object of an agreement is unlawful, if it defeats the provisions of any law, or the court regards it as opposed to public policy. It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy. Where a contractual provision is against a specific statutory provision or if it would result in frustration of a right conferred by law, then it can be regarded as opposed to public policy. It shall not become valid even if the parties thereto agree to it. A statutory right which has been conferred on a person under public policy cannot be waived by the said person by an agreement. When the obligation on the father to maintain an unmarried daughter is recognised by a statute, it is a matter of public policy and not of an individual. The father cannot divest himself of his liability to maintain his child by an agreement with the mother of the child. It would definitely be the public policy that children should not be left dependent on public assistance or on charity. They should therefore be able to come to the court for maintenance, notwithstanding any agreement to the contrary.

35. In the aforesaid factual and legal situation, the contention of the appellant that, the compromise decree passed by the court in the litigations between the father and the mother would preclude the daughters from claiming maintenance from the father, cannot be countenanced. The right of the daughters to get maintenance from the father was not forfeited by virtue of the agreement/compromise entered into between the mother and the father.

36. Now we come to the question regarding the quantum of maintenance and marriage expenses payable by the father to the daughters. The financial capacity of the father has to be taken into consideration in determining the amount which the daughters are entitled to get from him. His means and income would be relevant.

37. Admittedly, the father was employed as a driver abroad in a private company. According to the daughters, he had an income of Rs.2,00,000/- per month. The plea of the father is that his monthly income was only Rs.40,000/- and he had to repay a loan amount @ Rs.23,000/- per month. The father did not enter the witness box. He also did not produce before the court any certificate from his employer showing his actual salary and allowances. Only his power of attorney holder, a relative of him, was examined as CPW1. His evidence regarding the income and assets of the father cannot be relied upon. Ext.B5 is the statement of account of the father in one of the banks. It would show that he had maintained a minimum amount of Rs.10,00,000/- in the bank account during the period from 02.09.2009 to 05.04.2013. In such circumstances, it cannot be found that he was financially a very poor person.

38. The lower court has granted past maintenance of Rs.36,000/- each to the daughters for a period of three years. The amount of monthly maintenance awarded to each daughter would come to Rs.3,000/- per month. It cannot be found that this amount is excessive or unreasonable having regard to the financial status of the father. We do not find any reason to interfere with the decree passed by the lower court in this regard.

39. The lower court has granted Rs.2,500/- per month as future maintenance to each daughter. This amount is also not highly excessive or unreasonable. We also do not intend to interfere with the decree passed by the lower court in this regard.

40. Now, we come to the question of marriage expenses. The lower court has granted Rs.5,00,000/- each to the daughters towards marriage expenses. Now a days, money in abundance, is needed for the marriage of a girl. Considerable amount would be required to meet the expenses of even the basic and bare minimum necessities in connection with the marriage of a girl. Therefore, it cannot be found that the amount of five lakhs rupees awarded by the lower court as marriage expenses to each of the daughters is excessive. But, the fact remains that the father is now not alive. Whatever amount awarded to the daughters has to be realized from the estate of the deceased father. We also take note of the fact that the father had gifted twelve cents of property with a building to the daughters. Considering all these aspects, we are inclined to reduce the amount of marriage expenses awarded by the lower court to Rs.3,00,000/- each to the two daughters.

41. Consequently, the appeal is allowed in part. The judgment and decree of the lower court awarding Rs.36,000/- each to the first and the second respondents (the daughters) towards past maintenance is confirmed. The judgment and decree of the lower court awarding Rs.2,500/- per month to them towards future maintenance is also confirmed. They are entitled to get the amount awarded as future maintenance only till the date of death of the father, that is, on 18.12.2016. We modify the judgment and decree passed by the lower court awarding marriage expenses to the daughters and reduce the amount of marriage expenses to Rs.3,00,000/-(Rupees three lakhs only) payable to each of the daughters. The petition schedule property shall be a charge for the aforesaid amounts awarded. The first and the second respondents (the daughters) are entitled to realise the decree debt from the estate of their deceased father.

No costs in the appeal.