Right To Maintenance Not Extinguished By One-Time Settlement: Kerala High Court Allows Divorced Wife’s Appeal, Holds Clause Waiving Maintenance Is Not Absolute
The Court said that a divorced wife’s statutory right to claim maintenance under Section 37 of the Indian Divorce Act, 1869 is not extinguished by a clause in a compromise agreement waiving future maintenance, if circumstances change.
Justice Sathish Ninan, Justice P. Krishna Kumar, Kerala High Court
The Kerala High Court has set aside an order of the Family Court rejecting the maintenance claim of a divorced wife and her son, holding that the court below had wrongly assumed their claims were not maintainable under the Indian Divorce Act and that the compromise agreement entered at the time of divorce foreclosed such claims.
A Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar observed, “The right to claim maintenance is a statutory right created by the Parliament, and an agreement by which a wife waived her right guaranteed by the statute would only be an agreement against public policy.”
The Court explained, “Although the clause in an agreement whereby the wife has waived her right to claim future maintenance cannot always hold against her, in order to obtain further allowance for maintenance later, 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.”
Advocate Nirmal V. Nair appeared for the Appellants, while Advocate V.N. Madhusudanan represented the Respondent.
Brief Facts
The Petitioners, a divorced woman and her son, had approached the Family Court seeking monthly maintenance of Rs. 5,000/- each, along with arrears of Rs. 3,60,000/-. The Respondent, her former husband, opposed the claim citing a prior settlement agreement entered at the time of mutual divorce in 2004, under which Rs. 30,000/- was paid in full and final settlement and the wife relinquished her claim for future maintenance.
The Family Court dismissed the petition, while holding that the woman had waived her claim through the settlement and had not proved that she was unable to maintain herself. It also held that the minor child’s remedy lay exclusively under Section 125 of the CrPC.
Reasoning of the Court
The High Court noted that Section 37 of the Indian Divorce Act, 1869 expressly recognises the right of a divorced wife to seek maintenance even after divorce. It 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 Court rejected the finding that a joint petition under Section 10A disentitled the wife from seeking alimony under Section 37, stating, “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.”
Addressing the waiver clause in the settlement agreement, the Bench observed, “The right to claim maintenance is a statutory right created by the Parliament, and an agreement by which a wife waived her right guaranteed by the statute would only be an agreement against public policy.”
The Court further noted that even where consolidated amounts were paid in earlier settlements, a claim for maintenance may be revived upon change in circumstances. “Although the clause in an agreement whereby the wife has waived her right to claim future maintenance cannot always hold against her, in order to obtain further allowance for maintenance later, 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”, it added.
The Court further held that the Family Court’s view that the child had no remedy under the Indian Divorce Act was erroneous.
The Bench referred to Section 44 of the Act which empowers the court to make provisions for custody and maintenance of minor children even after divorce, and noted, “Where a decree of dissolution or nullity of marriage has been passed, the District Court may… make from time to time all such orders and provisions with respect to the custody, maintenance and education of the minor children…”
The Court held that the clause in the compromise agreement waiving future maintenance could not extinguish the Petitioner’s statutory right to seek support if circumstances had changed, and further that the minor child’s right to claim maintenance under the Indian Divorce Act continued independently of any prior CrPC order.
Finally, noting subsequent developments, including pending proceedings for maintenance by both parties and alleged change in financial conditions, the Court remitted the matter 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.
Consequently, the Court allowed the appeal, set aside the order of the Family Court, and directed that the claim be considered afresh on its merits along with the connected petition pending between the parties.
Cause Title: Sheela George & Anr. v. V. M. Alexander (Neutral Citation: 2025:KER:37581)
Appearance:
Appellants: Advocate Nirmal V. Nair
Respondent: Advocates V.N. Madhusudanan, Dr. V.N. Sankarjee, S. Sidhardhan, M. Suseela, R. Udaya Jyothi, M.M. Vinod
