“The statutory provisions for maintenance are intended to protect the spouse, children or parents from destitution and vagrancy, and they declare the public policy of the nation. Thus, the above legal principle is equally applicable to an agreement attempting to contract out of the provisions of the Act.”
Kerala High Court: In an appeal challenging the rejection of a wife and minor child’s application for maintenance, the Division Bench comprising Justices Sathish Ninan and P. Krishna Kumar held that a wife who has previously relinquished her right to maintenance through a compromise is not barred from claiming it later if circumstances have changed. The Court emphasized that the wife is entitled to maintenance from the husband under either Section 37 of the Divorce Act or Section 125 of the Code of Criminal Procedure, 1973, provided she is unable to maintain herself during the relevant period. Furthermore, the Court noted that it retains the authority to vary, modify, or rescind any order related to permanent alimony and maintenance under Section 37 of the Act when there is a material change in circumstances.
Background
The appellants filed a petition under Section 26 and Order VII Rule 1 of the Code of Civil Procedure, 1908, read with Section 7 of the Family Courts Act, 1984, before the Family Court. They sought ₹3,60,000 as arrears of maintenance for the preceding three years, along with ₹5,000 per month as future maintenance. Both parties were Christians. The Family Court dismissed the petition, stating that the wife had relinquished her claim to maintenance under a prior compromise agreement, wherein she had received ₹30,000 from the husband. The Court further observed that she failed to establish her inability to sustain herself, as well as the husband’s financial capacity to pay the claimed maintenance.
Regarding the claim made on behalf of the minor child, the Court ruled it as non-maintainable, noting that Section 37 of the Divorce Act does not extend to children. Additionally, it pointed out that the husband was already paying ₹175 per month under an earlier order by the Judicial First-Class Magistrate Court. Therefore, the proper course of action for the child would be to seek enhancement of that amount by filing an application under Section 127 of the CrPC before the same court.
Issues, Analysis and Decision Whether the wife is entitled to get maintenance from the husband after their divorce.
The Court examined Section 37 of the Divorce Act along with Section 125 of the CrPC and reaffirmed the well-established principle that a divorced wife is entitled to seek permanent alimony from her former husband. It clarified that there is no legal impediment to filing a separate petition for such a claim even after the divorce proceedings have concluded.
In determining eligibility for permanent alimony, the Court laid down the following criteria:
- The wife must have obtained a decree of divorce or judicial separation;
- The financial condition of the wife and the paying capacity of the husband must be considered;
- The conduct of both parties must be taken into account; and
- The amount awarded must be reasonable in the given circumstances.
Furthermore, the Court ruled that a divorce decree obtained through a joint petition under Section 10A of the Divorce Act does not disqualify the wife from seeking relief under Section 37. It clarified that such a decree could still be regarded as one “obtained by the wife” for the purposes of Section 37, even if the petition was jointly filed by both spouses.
Referring to the case of Daniel Anand v. G.N. Sujatha, 2017 SCC OnLine Kar 4441, the Court observed that a combined reading of Sections 37 and 38 of the Divorce Act reveals that there is no legal bar preventing a wife—even if she is the respondent in a divorce petition—from claiming permanent alimony under the Act. It emphasized that when these two provisions are interpreted together, it becomes clear that the remedy of alimony extends to all cases covered under Section 37.
Aligning with the broader constitutional ideals and the underlying intent of Section 37—particularly the right to live with dignity and protection from destitution—the Court endorsed the reasoning adopted in the Daniel Anand judgment.
The Court further clarified that under Section 37 of the Divorce Act, a wife may be granted permanent alimony either in the form of a lump sum or through periodic payments (annual, monthly, or weekly), subject to the satisfaction of the conditions laid out in the provision. Additionally, it noted that if the husband later becomes incapable of continuing the payments, the court holds the authority to discharge, alter, or temporarily suspend the alimony order, with the option of reinstating it when appropriate.
The Court noted that the Trial Court had pointed out a lack of clarity in the appellants’ petition regarding whether it was filed under Section 37 of the Divorce Act or Section 125 of the Code of Criminal Procedure (CrPC). In response, the Court observed that the appellants had filed the petition under Section 26 and Order VII Rule 1 of the Code of Civil Procedure (CPC), read with Section 7 of the Family Courts Act. It found no procedural flaw in this, emphasizing that Section 45 of the Divorce Act specifically provides that proceedings under the Act are to be conducted in accordance with the CPC.
The Court further clarified that the mere misstatement or omission of a specific statutory provision does not, in itself, deprive a party of substantive relief, as long as the legal entitlement to such relief exists.
Additionally, the Court addressed Section 127(3)(c) CrPC, which allows a divorced husband to seek cancellation of a maintenance order under Section 125 CrPC if the wife has voluntarily given up her right to maintenance. However, it made clear that this does not bar the wife from reasserting her claim for maintenance later, if there is a change in circumstances and she is no longer able to support herself.
Whether the compromise agreement would disentitle the wife from claiming maintenance.
The Court observed that, while the husband had asserted before the Trial Court that he had relinquished his rights over 15 cents of land and paid ₹30,000 as part of the settlement, the compromise agreement revealed otherwise. It showed that the land in question had, in fact, been gifted to him by the wife’s parents in connection with the marriage. Thus, the primary issue centered on the validity of the clause in the agreement wherein the wife had ostensibly given up her right to future maintenance in exchange for ₹30,000.
The Court highlighted that in cases where a wife has accepted a lump-sum amount in lieu of future maintenance, any subsequent claim must be examined in light of whether there has been a significant change in circumstances and whether the amount previously received was adequate to support her. While such a waiver clause cannot be rigidly enforced against the wife in every situation, she bears the burden of proving that the benefits received under the agreement have become insufficient to sustain her livelihood—either due to altered circumstances or other relevant considerations—in order to justify a renewed claim for maintenance.
The Court further held that even when a decree or order for maintenance has been passed—whether on merits or by mutual consent—the court retains the discretion to vary or modify such an order if there is a subsequent change in circumstances. It referred to Section 127 of the CrPC, which authorizes a Magistrate to revise the maintenance amount upon proof of altered circumstances. Similar powers are vested under Section 25(2) of the Hindu Marriage Act, 1955, and Section 37(2) of the Special Marriage Act, 1954, allowing the court to vary, modify, or revoke maintenance orders at the request of either party.
While Section 37 of the Divorce Act does provide for modification or cancellation of such orders, it explicitly allows this relief only at the behest of the husband. However, Constitutional Courts have adopted a purposive interpretation to ensure gender parity, extending the equitable principles from other matrimonial statutes—such as the Hindu Marriage Act and the Special Marriage Act—to the Divorce Act as well. Based on this reasoning, the Court held that the power to alter, modify, or rescind an order for permanent alimony under Section 37 must be interpreted as available to either party, especially where there is a proven change in circumstances. This principle, the Court emphasized, should guide parties involved in such cases.
The Court also took note that the compromise agreement in question was executed in 2004, whereas the wife raised her maintenance claim only in 2012. It held that the lump-sum payment of ₹30,000 made under the earlier settlement could not, by itself, preclude the wife from seeking maintenance at a later stage if she was genuinely unable to support herself.
Therefore, the Court concluded that the wife was entitled to claim maintenance from the husband under Section 37 of the Divorce Act or Section 125 of the CrPC, provided she was unable to maintain herself during the relevant period, regardless of the earlier compromise agreement.
Whether the child is entitled to get maintenance under the provisions of the Act.
The Court noted that the child had by then attained the age of majority, rendering the issue of future maintenance moot. However, it clarified that the question of whether he was entitled to maintenance until reaching majority remained a separate and relevant consideration. The Court thus proceeded to evaluate the Trial Court’s reasoning, which had held that a minor child could only seek maintenance through the Magistrate under Section 125 of the CrPC, as he was not covered under Section 37 of the Divorce Act.
Clarifying the legal position, the Court observed that the Divorce Act expressly empowers the Court to grant maintenance for minor children both during and after matrimonial proceedings. It referred to Section 43 of the Act, which authorizes the Court to award interim maintenance during the pendency of proceedings for dissolution or nullity of marriage, and Section 44, which allows maintenance orders even after the decree is passed.
Accordingly, the Court held that the Family Court erred in concluding that a minor child could not seek maintenance under the Divorce Act. While a Magistrate had already ordered maintenance of ₹175 per month under Section 125 CrPC, the Family Court could have considered the petition under the appropriate provisions of the Divorce Act as well. The Court emphasized that since proceedings under Section 125 CrPC are summary in nature, they do not preclude the child from pursuing a higher maintenance claim before the Family Court under the broader jurisdiction of the Divorce Act.
Whether the evidence on record is sufficient to establish that the wife lacked the means to maintain herself and the child, and that the husband, despite having the ability, refused to pay maintenance.
Taking note of certain subsequent developments, the Court observed that the wife had filed a fresh petition before the Family Court seeking maintenance from the husband, including arrears for the past period. The husband, in turn, submitted that his health had severely declined due to a terminal illness and that he currently had no source of income.
Considering these developments, the Court found it appropriate to remit the matter back to the Trial Court for a fresh adjudication on merits. It directed that both parties be given an opportunity to present evidence, particularly concerning any change in circumstances since the dissolution of the marriage. The Court noted that this course of action was necessary, as the Trial Court had primarily proceeded under the assumption that the wife’s maintenance claim was not legally sustainable, despite ultimately addressing some merits of the case.
Consequently, the appeal was allowed and the impugned order was set aside. The Family Court was instructed to re-examine the matter afresh, affording both parties a full opportunity to produce evidence. The Court also emphasized that the matter, pending since 2012, should be disposed of at the earliest. The parties were directed to appear before the Family Court on 25-06-2025.
Taking note of certain subsequent developments, the Court observed that the wife had filed a fresh petition before the Family Court seeking maintenance from the husband, including arrears for the past period. The husband, in turn, submitted that his health had severely declined due to a terminal illness and that he currently had no source of income.
Considering these developments, the Court found it appropriate to remit the matter back to the Trial Court for a fresh adjudication on merits. It directed that both parties be given an opportunity to present evidence, particularly concerning any change in circumstances since the dissolution of the marriage. The Court noted that this course of action was necessary, as the Trial Court had primarily proceeded under the assumption that the wife’s maintenance claim was not legally sustainable, despite ultimately addressing some merits of the case.
Consequently, the appeal was allowed and the impugned order was set aside. The Family Court was instructed to re-examine the matter afresh, affording both parties a full opportunity to produce evidence. The Court also emphasized that the matter, pending since 2012, should be disposed of at the earliest. The parties were directed to appear before the Family Court on 25-06-2025.
