Safiya Malik

The High Court of Kerala Single Bench of Justice A. Badharudeen dismissed the Criminal Revision Petition challenging concurrent findings of the Trial Court and the Appellate Court that directed the payment of interim maintenance under the Protection of Women from Domestic Violence Act, 2005. Significant directives include the payment of arrears within thirty days and liberty for the petitioner to adopt coercive measures if the respondent fails to comply.

The petitioner, respondent in the original proceedings, approached the High Court under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the judgment dated 11 April 2024 rendered by the II Additional District Court, Thiruvananthapuram. The matter originated from an interim maintenance application filed under Section 23 of the Domestic Violence Act, 2005, in connection with a main petition under Section 20.

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The petitioner and respondent were previously married, and their marriage was dissolved by decree of divorce issued by the Family Court in 2018. Allegations included demands for gold ornaments amounting to 301 sovereigns and Rs. 10 lakhs in cash, followed by persistent demands leading to acts of domestic violence. The respondent is a Pilot, reportedly earning more than Rs. 15 lakhs monthly.

The respondent resisted the maintenance claim, submitting that an agreement executed before a Notary Public on 28 October 2017 (Annexure A2) recorded an amicable settlement where the petitioner allegedly waived any future claims of maintenance. He further contended that the petitioner independently ran a Yoga Centre with an alleged monthly income of Rs. 2 lakh.

The Trial Court, not persuaded by the respondent's assertions, granted Rs. 30,000/- per month as interim maintenance, relying on the disclosed gross income of Rs. 8,35,000/- by the respondent. The Appellate Court dismissed the appeal, affirming the Trial Court’s finding.

Before the High Court, the respondent stated the binding effect of the settlement agreement, arguing that the waiver clause in Annexure A2 precluded any maintenance claim. Conversely, the petitioner argued that the agreement did not explicitly record any maintenance paid and was under challenge in independent proceedings.

The respondent's contention regarding the petitioner's independent income was dismissed for lack of evidence. The Court recorded that no reliable materials were produced to substantiate the income from the Yoga Centre.

The Court framed the following principal questions for determination:

1. Whether waiver or abandonment of right to maintenance would negate the claim of maintenance to a wife?

2. What are the matters to be considered when interim maintenance is canvassed?

3. Whether the decree of divorce would absolve the liability under the Domestic Violence Act?

4. Whether the verdicts impugned required interference?

On the question of waiver of maintenance rights, the Court referred to the Supreme Court judgment in Bhupinder Singh v. Daljit Kaur and observed in italics, "S.125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself."

The Court further recorded that "a waiver in derogation of a statutory right could not 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" referencing Haroon v. Sainabha.

On interim maintenance, relying on Rajnesh v. Neha, the Court recorded in italics, "Financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid."

On the impact of divorce on maintenance claims, the Court referred to Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, recording in italics, "an erstwhile wife can also claim maintenance under the D.V Act".

On the facts, the Court noted that despite the settlement agreement, there was no clear evidence that any payment was made towards maintenance. The clause waiving maintenance rights was therefore not enforceable to defeat a claim under statutory provisions.

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In light of the disclosed income of Rs. 8,35,000/- per month by the respondent and the absence of substantiated independent income by the petitioner, the interim maintenance award of Rs. 30,000/- was held reasonable.

The High Court dismissed the Criminal Revision Petition, recording:

"In the result, this petition fails and is accordingly dismissed with direction to the respondent to clear the entire due amount within a period of 30 days from today, failing which, the petitioner is at liberty to go with coercive steps to realise the same as per law."

Further, the interim order of stay was vacated. The Registry was directed to forward a copy of the order to the jurisdictional court for necessary action.

Advocates Representing the Parties:

For the Revision Petitioner: P.A. Ayub Khan, Niji K. Shahul

For the Respondent: Rema Smrithi V.K, Jibu T.S, Public Prosecutor

Case Title: XXX v. YYY

Neutral Citation: 2025: KER:31422

Case Number: Crl.Rev.Pet No. 1121 of 2024

Bench: Justice A. Badharudeen

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