Kerala High Court: In an appeal filed against the order rejecting an application for maintenance by the wife and minor child (the appellants) against the husband, the Division Bench of Sathish Ninan and P. Krishna Kumar*, JJ. held that a wife who voluntarily relinquished her right to maintenance is not precluded from seeking it at a later stage if there is a change in circumstances. The Court concluded that the wife was entitled to claim maintenance from the husband, notwithstanding the terms of the earlier compromise agreement, either under Section 37 of the Divorce Act (‘the Act’) or under Section 125 of the Code of Criminal Procedure, 1973 (‘CrPC’) provided she was unable to maintain herself during the relevant period. Further, the power to vary, modify or rescind any order passed by the court for permanent alimony and maintenance at the instance of either party inheres in the Court even under Section 37 of the Act, when there is a change in circumstances.
Background
The appellants had filed a petition under Section 26 and Rule 1 of Order VII of the Code of Civil Procedure, 1908, read with Section 7 of the Family Courts Act, 1984 before the Family Court. They sought a sum of ₹3,60,000 as arrears of maintenance for the previous three years, along with ₹5,000 per month towards future maintenance. The parties were Christians. The Family Judge dismissed the claim, holding that, as per a compromise agreement, the wife had relinquished her right to maintenance from the respondent upon receiving ₹30,000. The court also found that she had failed to prove both her inability to maintain herself and the husband’s capacity to pay for the claimed maintenance. With respect to the claim made on behalf of the child, the Family Court held that it was not maintainable, as Section 37 of Act did not apply to minor children. Furthermore, it was observed that, since the husband had already been paying ₹175 per month to the child under the order of the Judicial First-Class Magistrate Court, the appropriate remedy available to the child was to file an application under Section 127 CrPC for enhancement of the maintenance amount before that court.
Issues, Analysis and Decision
Whether the wife is entitled to get maintenance from the husband after their divorce.
The Court took note of Section 37 of the Act, and Section 125 of CrPC, and noted that it was well established that a divorced wife is entitled to raise a claim for permanent alimony against her former husband. It held that there existed no legal bar to file a separate petition asserting such a claim after the conclusion of proceedings for the dissolution of marriage.
The Court observed that the following conditions were required to be satisfied for awarding alimony to a divorced wife:
(a) a decree of dissolution of marriage or judicial separation must have been obtained by the wife;
(b) the order for permanent alimony must take into account the means of the wife and the ability of the husband to pay;
(c) the conduct of the parties must be considered; and
(d) only a reasonable sum could be ordered as alimony.
The Court held that when the wife had obtained a decree of divorce through a joint petition filed under Section 10A of the Divorce Act, there was no reason to conclude that Section 37 of the Act would be inapplicable. It observed that, for the purposes of Section 37, such a decree could be considered one “obtained by the wife,” even though the husband had also joined her in filing the petition.
The Court, after referring to Daniel Anand v. G.N. Sujatha, 2017 SCC OnLine Kar 4441, noted that it had been held in that case that a conjoint reading of Sections 37 and 38 of the Divorce Act indicates that there is no legal impediment for a wife, even if she is the respondent in a divorce petition, to seek permanent alimony under the Act. It was further observed that when Sections 37 and 38 are read together, it becomes evident that the relief of alimony is applicable to all cases falling within the scope of Section 37. Taking into account the broader constitutional principles and the underlying objective of Section 37 — namely, the right to life and protection against destitution — the Court concurred with the view expressed in the said decision.
The Court noted that, as per Section 37 of the Divorce Act, an order for permanent alimony could be issued by securing for the wife either a gross sum of money or by directing payment of an annual, monthly, or weekly amount, provided the other conditions mentioned in the section were satisfied. It further observed that if the husband subsequently became unable to make such payments, the court was empowered to discharge, modify, or temporarily suspend the order, which could later be revived.
The Court further noted that the Trial Court had observed that the appellants did not clearly specify in their petition whether it was filed under Section 37 of the Divorce Act or under Section 125 of the Code of Criminal Procedure. In response, the Court acknowledged that the appellants had instituted the petition under Section 26 and Rule 1 of Order VII of the Code of Civil Procedure, read with Section 7 of the Family Courts Act. However, it found no irregularity in this approach, emphasising that Section 45 of the Divorce Act stipulates that proceedings under the Act are to be governed by the provisions of the Code of Civil Procedure. The Court further clarified that the misquoting or omission of a specific legal provision does not, by itself, disentitle a party from seeking relief under the substantive law, provided they are otherwise legally entitled to such relief.
Moreover, the Court highlighted that while Section 127(3)(c) CrPC permits a divorced husband to seek cancellation of a maintenance order issued under Section 125 CrPC when the wife voluntarily relinquishes her right to maintenance, the provision does not preclude the wife from subsequently claiming maintenance if there is a change in circumstances and she becomes incapable of maintaining herself.
Whether the compromise agreement would disentitle the wife from claiming maintenance.
The Court noted that although the husband had claimed before the Trial Court that he had relinquished his right over 15 cents of land as part of the settlement, along with providing ₹30,000—it was evident from the compromise agreement that the said property had in fact been conveyed to him by the parents of the wife in connection with the marriage. Therefore, the central issue narrowed down to the validity of the clause in the agreement wherein the wife purportedly relinquished her right to future maintenance upon receiving the sum of ₹30,000.
The Court emphasised that in cases where the wife had received a consolidated amount in lieu of maintenance, the court, before issuing any order for further allowance, must primarily consider whether there had been any change in circumstances and whether the amount already received was sufficient to meet the wife’s needs. Although a clause in an agreement in which the wife waives her right to claim future maintenance cannot always be enforced against her, she must establish that the benefits received under the agreement had become insufficient to support her livelihood, either due to a change in circumstances or other relevant factors, in order to claim additional maintenance.
The Court further observed that even if a decree or order for maintenance has been passed, either on merits or by consent—the court retains the authority to vary or modify such an order if there is a subsequent change in circumstances. It referred to Section 127 CrPC, which permits a Magistrate to alter the maintenance allowance upon proof of changed circumstances. Similarly, under Section 25(2) of the Hindu Marriage Act, 1955, and Section 37(2) of the Special Marriage Act, 1954, the court is empowered to vary, modify, or rescind any maintenance order upon proof of a change in circumstances, at the instance of either party. While Section 37 of the Divorce Act contains a provision for modifying or cancelling such orders, it explicitly provides for such relief only at the instance of the husband. However, Constitutional Courts have extended the beneficial principles from other matrimonial laws, such as the Hindu Marriage Act and the Special Marriage Act, to ensure parity of treatment under the Divorce Act as well. Drawing upon these analogous provisions, the Court held that the power to vary, modify, or rescind an order for permanent alimony and maintenance at the instance of either party must be read into Section 37 of the Divorce Act, particularly when there is a change in circumstances. The same principle, the Court emphasised, should guide the parties in such situations.
The Court noted that the compromise agreement had been executed in the year 2004, while the claim for maintenance was raised only in 2012. Hence, it held that the consolidated payment of ₹30,000 towards permanent alimony under the said agreement would not, by itself, disentitle the wife from raising a claim for maintenance at a later stage, if she was genuinely unable to maintain herself.
Accordingly, the Court concluded that the wife was entitled to claim maintenance from the husband, notwithstanding the terms of the compromise agreement, either under Section 37 of the Divorce Act or under Section 125 CrPC provided she was unable to maintain herself during the relevant period.
Whether the child is entitled to get maintenance under the provisions of the Act.
The Court noted that the child had now attained majority, and therefore, the question of future maintenance for him no longer arose. However, the Court observed that whether he was entitled to maintenance until attaining the majority was a distinct issue. It proceeded to examine the correctness of the trial court’s finding that the remedy available to a minor child was solely to approach the Magistrate’s Court under Section 125 CrPC, since a minor child is not covered under Section 37 of the Divorce Act.
The Court clarified that the Divorce Act expressly empowered the Court to order maintenance for minor children, either during the pendency of proceedings under the Act or even thereafter. Specifically, Section 43 of the Act permitted the Court to pass interim maintenance orders during the course of proceedings for dissolution of marriage or decree of nullity, while Section 44 authorized the Court to make maintenance orders after such decree was passed.
Hence, the Court concluded that the Family Court was incorrect in holding that a minor child has no right to claim maintenance under the provisions of the Divorce Act. Despite the Magistrate Court having passed an order directing payment of maintenance at the rate of ₹175 per month to the child, the Court could have treated the application as one filed under the relevant provisions of the Act. Since the remedy available under Section 125 CrPC is summary in nature, there is no legal bar preventing the child from claiming a higher amount of maintenance from the Family Court.
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.
After taking note of certain subsequent developments in the matter, the Court observed that the wife had instituted a fresh petition before the Family Court, seeking maintenance from the husband, including arrears of past maintenance. In addition, the husband submitted that his health had deteriorated significantly, as he was suffering from a terminal illness, and that he presently had no source of income.
In view of these developments, the Court deemed it appropriate to remit the matter to the Trial Court for a fresh decision on merits, after providing both parties an opportunity to adduce evidence, particularly with respect to any changes in circumstances following the dissolution of the marriage. The Court was constrained to adopt this course of action, as the Trial Court had largely proceeded on the assumption that the claim for maintenance was not legally maintainable, even though it ultimately addressed the merits of the case.
As a result, the appeal was allowed, and the impugned order was set aside. The Family Court was directed to dispose of the matter afresh, after giving both parties full opportunity to lead evidence. The Court expressed its expectation that the Family Court would dispose of the matter expeditiously, considering that the maintenance claim had been pending since 2012. The parties were directed to appear before the Family Court on 25-06-2025.
[Sheela George v. V.M.Alexander, 2025 SCC OnLine Ker 3501, decided on 02-06-2025]
*Judgment Authored by: Justice P.Krishna Kumar
Advocates who appeared in this case:
For Appellants: BY ADV SRI.NIRMAL V NAIR
For Respondent: BY ADVS. SRI.V.N.MADHUSUDANAN DR.V.N.SANKARJEE SRI.S.SIDHARDHAN SMT.M.SUSEELA SMT.R.UDAYA JYOTHI SRI.M.M.VINOD
Buy Code of Criminal Procedure, 1973 HERE
I don’t understand why the courts encourage gender bias.Can a man think of reducing the alimony being paid in case of change in his life circumstances?
DO LIFE CIRCUMSTANCES CHANGE ONLY FOR THE WIFE ???
INJUSTICE OF OUR COURTS.