The Kerala High Court has ruled that a wife who relinquished her right to maintenance during a mutual divorce is not barred from seeking it later if there is a significant change in her circumstances. The decision was delivered by a Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar in the case Sheela George & Another v. V.M. Alexander.
The Court was hearing a matrimonial appeal filed by a divorced woman and her son, challenging the Family Court’s order which rejected their plea for arrears and future maintenance. The Family Court had earlier ruled that since the wife had received ₹30,000 and waived her maintenance rights in a compromise agreement during the divorce, she could not claim further support.
However, the High Court emphasized that under Section 37 of the Divorce Act, a divorced wife retains the right to claim maintenance even after the decree, especially when she proves a change in financial conditions.
“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… such a decree can be considered as 'obtained by the wife',” the Court observed.
The Court clarified that misquoting a section or filing under the wrong provision does not negate the wife’s legal entitlement to maintenance if her claim is substantiated under law.
It further noted that while Section 127(3)(c) Cr.P.C. allows a husband to cancel maintenance if the wife surrenders it voluntarily, there is no legal prohibition for the wife to reclaim it later if her circumstances have worsened.
“Section 127(3)(c)... does not prohibit the wife from later claiming maintenance if circumstances change and she becomes incapable of maintaining herself,” the Bench stated.
On the validity of the earlier agreement where maintenance rights were waived, the Court relied on landmark rulings including Nagendrappa Natikar v. Neelamma and Rajesh R. Nair v. Meera Babu, asserting that maintenance is a statutory right that cannot be waived by private agreement if it leads to destitution.
“The statutory provisions for maintenance… declare the public policy of the nation. Thus, such agreements are unenforceable if they aim to override those provisions,” the Court asserted.
Regarding the minor son’s claim, the High Court clarified that although Section 37 of the Act does not cover minor children, Sections 43 and 44 allow the Family Court to award maintenance for them. Thus, the minor child could rightfully seek higher maintenance despite an earlier Magistrate’s order.
In conclusion, the High Court set aside the Family Court’s ruling and remitted the matter for fresh consideration, asking the lower court to reassess the situation based on the present financial and personal circumstances of both parties.
Case Title: Sheela George and Another v. V.M. Alexander
Case Number: Mat. Appeal No. 586 of 2017
Counsels for the Appellants: Nirmal V. Nair
Counsels for the Respondent: V.N. Madhusudanan, Dr. V.N. Sankarjee, S. Sidhardhan, M. Susheela, R. Udaya Jyothi, M.M. Vinod
