Wife Who Waived Maintenance During Mutual Divorce Can Still Claim It | Change In Circumstances Revives Statutory Right : Kerala High Court
Sanchayita Lahkar
The High Court of Kerala Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar held that a divorced wife is entitled to claim maintenance under Section 37 of the Divorce Act or Section 125 of the Criminal Procedure Code if she is unable to maintain herself, notwithstanding the terms of a prior compromise agreement. The Court set aside the Family Court's rejection of the maintenance claim filed by a divorced wife and her son and directed the matter to be reconsidered afresh along with a related pending petition. Both parties were granted the liberty to adduce further evidence. The Family Court was directed to expedite the proceedings.
The appellants, a divorced woman and her son, filed a petition before the Family Court, Mavelikkara, seeking ₹3,60,000 as arrears of maintenance and ₹5,000 per month for future maintenance. The petition was filed under Section 26 and Rule 1 of Order VII of the Code of Civil Procedure read with Section 7 of the Family Courts Act. The petition cited the financial inability of the appellants to sustain themselves and the respondent’s alleged stable income of ₹30,000 per month from his lottery business.
The first appellant and the respondent had married on 20 April 1995, and their marriage was dissolved by mutual consent on 3 August 2004 under Section 10A of the Indian Divorce Act. Following the filing of the joint petition for divorce, the parties executed an undated compromise agreement (marked as Ext.B2), under which the respondent relinquished his rights in 15 cents of land conveyed to him at the time of marriage by the first appellant’s parents. Additionally, the respondent paid ₹30,000 to the first appellant, who in turn waived any future claims to maintenance.
The Family Court rejected the petition. It found that the first appellant had relinquished her maintenance rights under Ext.B2 and had not proved her inability to maintain herself or the respondent’s ability to pay. As for the second appellant (their child), the Family Court held that Section 37 of the Indian Divorce Act did not apply to minors and directed that any modification in maintenance be sought under Section 127 of the Cr.P.C., given the respondent had been paying ₹175 per month pursuant to an earlier Magistrate’s order in M.C. No. 34/1998.
The appellants challenged this dismissal on appeal. The appellants contended that the statutory provisions of the Divorce Act and the Cr.P.C. allowed for independent and future maintenance claims by both a divorced wife and a child, even in the presence of prior agreements, where circumstances had since changed. They also argued that the Family Court had incorrectly dismissed the petition solely on maintainability and did not appropriately address their claims on the merits.
During the High Court proceedings, it was brought to light that the first appellant had filed a subsequent petition, O.P. No. 1509/2024, before the Family Court, Mavelikkara, also claiming maintenance, including for the past period. Meanwhile, the respondent filed a separate maintenance claim against the second appellant, citing severe health conditions and lack of income.
Given these developments and the basis of the Family Court's decision, the High Court considered whether a prior compromise could permanently bar a maintenance claim, whether statutory rights to maintenance are waivable, and whether the Family Court had jurisdiction under the Indian Divorce Act to entertain a minor child’s maintenance claim.
The Court observed: “A reading of Section 37 makes it clear that a divorced wife is entitled to raise a claim for permanent alimony against the former husband. There exists no legal bar to file a separate petition asserting such a claim subsequent to the conclusion of the proceeding for dissolution of marriage.”
The Bench stated: “When the wife obtained a decree of divorce through a joint petition filed under Section 10A of the Act, we find no reason to hold that Section 37 of the Act is inapplicable.”
Addressing the scope of Section 125 Cr.P.C., the Court recorded: “In order to attract Section 125(4), it must be shown that the husband and wife are living separately by mutual consent... sub-clause (4) of Section 125, by its apparent tenure, seems to be inapplicable in the case of a divorced husband and wife.”
The Bench referred to the decision in Vanamala v. Ranganatha Bhatta and observed: “The Supreme Court held... there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately.”
On Section 127(3)(c), the Court stated: “The provision does not bar a divorced wife who had previously surrendered her right to maintenance from seeking maintenance... if there is a change in circumstances.”
Regarding the Ext.B2 agreement, the Court held: “The clause in an agreement whereby the wife has waived her right to claim future maintenance cannot always hold against her.” It added: “She must establish that the benefits she received in lieu of maintenance are no longer sufficient for her livelihood, due to a change in circumstances or for other eventualities.”
On the Family Court’s ruling regarding the child’s maintenance, the Court noted: “In view of the above provisions, it can be concluded that the Family Court was not correct in holding that a minor child has no right to claim maintenance under the provisions of the Act.”
Addressing the evidence required, the Court observed: “We deem it appropriate to remit the case for a fresh decision on merit by the trial court, after affording opportunity to both sides to adduce evidence, on change of circumstances, if any, after the dissolution of their marriage.”
The High Court allowed the appeal and set aside the impugned order, directing the Family Court to reconsider the matter afresh along with O.P. No. 1509/2024, after providing both parties an opportunity to present evidence.
The Court expressed confidence that the Family Court would dispose of the matter expeditiously, taking into account that the maintenance claim had been pending since 2012. It directed the parties to appear before the Family Court on 25 June 2025.
The Court noted that this course of action was necessary because the trial court had mainly proceeded on the incorrect assumption that the maintenance claim was not legally maintainable, despite ultimately addressing the merits.
Advocates Representing the Parties
For the Petitioners: Sri. Nirmal V. Nair, Advocate
For the Respondents: Sri. V.N. Madhusudanan, Dr. V.N. Sankarjee, Sri. S. Sidhardhan, Smt. M. Suseela, Smt. R. Udaya Jyothi, Sri. M.M. Vinod
Case Title: Sheela George & Anr. v. V.M. Alexander
Neutral Citation: 2025:KER:37581
Case Number: Mat.Appeal No. 586 of 2017
Bench: Justice Sathish Ninan, Justice P. Krishna Kumar
[Read/Download order]
