K. SADASIVAN NAIR Vs. KAMALAKSHI
HIGH COURT OF KERALA
K. SADASIVAN NAIR
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P.JANAKI AMMA,J. -
(1.) THE revision petitioner is the father of a minor now aged about 7 years,who is a second respondent.The first respondent is the mother of the minor.The revision petitioner and the first respondent executed Ext.P -1,the deed of divorce dissolving their marriage on 19th March 1970.The second respondent was then a child aged about 3 years.The child was then living with the mother.It was agreed that the child should remain with her and that she should look after her and maintain her as before and that the revision petitioner would not be asked to maintain the child.Contrary to the above provision,the first respondent,as the guardian of the minor demanded maintenance from the revision petitioner.A registered notice making such a demand was also sent.The revision petitioner did not respond to such demand and this led to the filing of M.C.16 of 1973 before the Additional First Class Magistrate,Trivandrum.The revision petitioner denied his liability to maintain the child placing reliance on the term in Ext.P -1,the deed of divorce.He also disputed the quantum of maintenance.The Additional First Class Magistrate,Trivandrum overruled his objections and directed him to pay maintenance to the child at the rate of Rs.30 per month.This order is being challenged in this revision petition.
(2.) THE main contention of the revision petitioner is that having undertaken to maintain the child at the time of divorce,the first respondent is precluded from putting forward a claim against the revision petitioner for the maintenance of the child.The stand taken by the revision petitioner is that the undertaking by the first respondent was consideration for the deed of divorce and as such,he is not bound to pay anything towards the maintenance of the child.
It has come out that both the revision petitioner as also the first respondent were employed at the time of their marriage in 1966.The petitioner is an Attender in the University Library,Trivandrum,while the first respondent is at present a Typist -Clerk in the Kerala State Electricity Board Office.The case of the petitioner is that at the time of the marriage,the first respondent was only a menial employee and that it was subsequent to the marriage that she got the present post.She thereafter felt that the continuance of her marriage with the petitioner,who was still an Attender was derogatory to her.This gave rise to rift between the two culminating in their divorce.The divorce,according to the revision petitioner,was effected at the instance of the first respondent and that was the reason why she undertook to maintain the child.
(3.) THE question that arises for consideration is whether the undertaking in Ext.P -1 by the first respondent to maintain the child would in any way stand against her claiming maintenance for the child from the revision petitioner.It is well recognised that the statutory provision in section 488 of the Code of Criminal Procedure casts a duty on a father to maintain both his legitimate as well as the illegitimate children.The general principle is that when a statute direct a thing to be done by a person,it is not open to him to contract out of that obligation.Therefore,the mere fact that a term is incorporated in Ext.P -1 that the first respondent would maintain the child is no answer to the claim of maintenance put forward on behalf of the child against the revision petitioner [See Abu Baker v. Katheesa ,1961 K.L.T.581].;
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