Wife Who Gave Up Maintenance Right During Mutual Divorce Not Barred From Seeking It Due To Change Of Circumstance: Kerala High Court

The Kerala High Court recently held that a wife who had voluntarily surrendered her right to maintenance is not barred from seeking it at a later stage, when there is a change in circumstances.The judgment was passed by a Division Bench comprising Justice Satish Ninan and Justice P. Krishna Kumar. The Court was considering a Matrimonial Appeal challenging a Family Court order that rejected an application for maintenance made by the appellants (divorced wife and son) against the respondent (husband/father).Factual BackgroundThe first appellant (wife) and respondent (husband), who were a married couple, dissolved their marriage in 2004 by a decree of divorce on mutual consent under S.10A of the Divorce Act. They had a son, who is the second appellant in the appeal.The first appellant and respondent had entered into a compromise agreement (Ext. B2) whereby the respondent relinquished his rights over a property in favour of the first appellant. The said property was conveyed to the respondent at the time of the marriage between the parties by the parents of the first appellant. Moreover, the first appellant relinquished her right to future maintenance on receiving a sum of Rs. 30,000/-.In another proceeding under S.125 of the Code of Criminal Procedure (Cr.P.C.) before the Judicial First Class Magistrate Court (JFCM), the respondent was ordered to pay Rs. 175/- per month to his minor child, the second appellant.Later, the appellants filed a petition before the Family Court, Mavelikkara under S. 26 and Order VII Rule 1 of the Code of Civil Procedure (CPC) r/w S.7 of the Family Courts Act claiming arrears of maintenance and future maintenance. However, the petition was dismissed. The Family Court found that the first appellant relinquished her right to maintenance by virtue of the compromise agreement and that she failed to prove her inability to maintain herself and the ability of the respondent to maintain them. Moreover, it was also found that the maintenance claim for a minor child is not maintainable under S. 37 of the Divorce Act (the Act). It further held that the correct remedy would have been to make an application before the JFCM under S. 127 Cr.P.C. for enhancement.Issues consideredThe three issues that were considered by the High Court are summarised below: Whether the first appellant is entitled to get maintenance from the respondent after her divorce, and if so, whether the compromise agreement would disentitle her from claiming maintenance?Whether Ext. B2 agreement would stand in the way of the first appellant to make a claim for maintenance?Whether the second appellant is entitled to get maintenance under the provisions of the Act?No bar on permanent alimony in divorce obtained jointlyThe Court looked into S. 37 of the Act and summarised the conditions that need to be satisfied for awarding alimony to the divorced wife. It was of the opinion that even though the petition before the Family Court was not instituted under S. 37 of the Act or under S. 125 Cr.PC., there was no irregularity in it. The Court found that as per S.45, the proceedings under the Act would be regulated by the provisions of the CPC. Moreover, omitting to quote or misquoting a provision would not disentitle parties from claiming a right under the substantive provisions of law.It observed:“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. For the purpose of Section 37, such a decree can be considered as 'obtained by the wife', though the husband also joined her in that endeavour…”Divorced wife may later claim maintenance even if right was surrenderedThe Court also considered the question whether a divorced wife is entitled to claim maintenance as per S. 125(4) Cr.P.C. if the divorce was obtained by mutual consent. The Court observed that the position of law in this regard was settled in a Supreme Court decision. In Vanamala v. Ranganatha Bhatta, it was held that S. 125(4) Cr.P.C. does not apply to a divorced wife.Thereafter, the Court looked into S. 127(3) Cr.P.C. and found that there is no bar on a divorced wife, who had previously surrendered her right to maintenance, from seeking maintenance under S. 125 if there is a change in circumstance.It observed: “In other words, while Section 127(3)(c) enables a divorced husband to have a maintenance order under Section 125 cancelled when the wife voluntarily relinquishes her right to maintenance, it does not prohibit the wife from later claiming maintenance if circumstances change and she becomes incapable of maintaining herself...”Parties cannot contract out of paying maintenanceThe Court also examined the validity of the relinquishment clause in Ext. B2 compromise agreement. It looked into decisions wherein a similar question was addressed. In Nagendrappa Natikar v. Neelama, the Supreme Court found that a wife is entitled to claim maintenance under S. 18 of the ...

Wife Who Gave Up Maintenance Right During Mutual Divorce Not Barred From Seeking It Due To Change Of Circumstance: Kerala High Court

K. Salma Jennath

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