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).
The 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.
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.
It observed:
โWhen 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 endeavourโฆโ
The court also 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: โIn 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…โ
However, the Court was of the opinion that whether or not there is an actual need to modify the maintenance ordered would depend on the circumstances in the case.
Case No: Sheela George and another v. V.M. Alexander
Case Title: Mat. Appeal No. 586 of 2017
