Any agreement between husband and wife which tries to waive the wife’s legal right to maintenance is not valid, the Court said.
The Kerala High Court upheld the Order of interim maintenance granted to a wife under the DV Act.
The Kerala High Court held that the waiver or abandonment of right to maintenance by a wife will not negate the future claim to maintenance by a wife. The Court dismissed a Revision petition filed by the husband under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and upheld the Order of interim maintenance granted to a wife under the Protection of Women from Domestic Violence Act, 2005 (DV Act). A Single Bench of Justice A Badharudeen held that “when an agreement is entered into between the wife and the husband, as a part of compromise filed in the Court or otherwise, whereby the wife relinquishes or waives the right to claim maintenance in future from the husband, such an agreement is opposed to public policy and it does not preclude her from claiming maintenance. Therefore waiver or abandonment of right of maintenance by the wife would not negate the claim of maintenance by the wife or by the child/children.”
The Kerala High Court held that the waiver or abandonment of right to maintenance by a wife will not negate the future claim to maintenance by a wife. The Court dismissed a Revision petition filed by the husband under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and upheld the Order of interim maintenance granted to a wife under the Protection of Women from Domestic Violence Act, 2005 (DV Act). A Single Bench of Justice A Badharudeen held that “when an agreement is entered into between the wife and the husband, as a part of compromise filed in the Court or otherwise, whereby the wife relinquishes or waives the right to claim maintenance in future from the husband, such an agreement is opposed to public policy and it does not preclude her from claiming maintenance. Therefore waiver or abandonment of right of maintenance by the wife would not negate the claim of maintenance by the wife or by the child/children.”
Advocate PA Ayub Khan appeared for the Revision Petitioner, while Public Prosecutor Jibu TS represented the Respondents.
Brief Facts
The wife had approached the Trial Court under Section 20 of the DV Act, seeking various reliefs, including interim maintenance. She argued that her marriage with the husband was dissolved in 2018, and she had no means of maintenance. She also alleged that the husband, a pilot with a substantial monthly income, was obligated to provide for her. The husband argued that the wife had waived her right to maintenance in a prior agreement and that she had an independent income from a Yoga Centre.
Court’s Reasoning
The High Court considered the question of whether a waiver or abandonment of the right to maintenance would negate a wife’s claim for future maintenance.
The Court noted, “Whether the petitioner is having an independent income to live, as in the same standard of the respondent, who is admittedly doing the job of a Pilot and the assets for herself thereof, is a matter of evidence and the court cannot look into those aspects in detail while considering an interim application for maintenance. As I have already pointed out, agreement, prima facie, doesn’t provide expressly that anything paid towards maintenance and otherwise the inference, prima facie, is that the right of maintenance was waived or relinquished.” The Court also referred to the decision in Bai Tahira v. Ali Hussain Fidaalli Chothia (1979), wherein the Supreme Court considered the question as to whether a divorced wife would lose her right to claim maintenance for herself under Section 125 of the CrPC, on making a declaration in the compromise resulting in a consent decree that she had no further claim against the husband.
The Court noted, “Whether the petitioner is having an independent income to live, as in the same standard of the respondent, who is admittedly doing the job of a Pilot and the assets for herself thereof, is a matter of evidence and the court cannot look into those aspects in detail while considering an interim application for maintenance. As I have already pointed out, agreement, prima facie, doesn’t provide expressly that anything paid towards maintenance and otherwise the inference, prima facie, is that the right of maintenance was waived or relinquished.” The Court also referred to the decision in Bai Tahira v. Ali Hussain Fidaalli Chothia (1979), wherein the Supreme Court considered the question as to whether a divorced wife would lose her right to claim maintenance for herself under Section 125 of the CrPC, on making a declaration in the compromise resulting in a consent decree that she had no further claim against the husband.
The Supreme Court upheld the decision of the Trial Court which held that “the former husband was liable to pay maintenance to his former wife and the children in spite of receiving the customary dues and other rights in the properties.
” “Such relinquishment or waiver has no legal footing as already found. But I leave the question regarding payment of maintenance, if any, as per Annexure A2 to be decided by the trial court on evidence. As things stand now, acting on the income disclosed by both sides, considering the status of the husband as a Pilot getting Rs.8,35,000/- as monthly take away salary, where income of the petitioner is not at all established, prima facie, the trial court granted interim maintenance of Rs.30,000/- and the appellate court confirmed the same. The said concurrent findings do not require any interference,” the Bench held.
Consequently, the Court ordered, “In the result, this petition fails and is accordingly dismissed with direction to the respondent to clear the entire due amount within a period of 30 days from today, failing which, the petitioner is at liberty to go with coercive steps to realise the same as per law.” Accordingly, the High Court dismissed the Petition.
Cause Title: X v. Y & Anr. (Neutral Citation: 2025:KER:31422)
Appearance:
Revision Petitioner: Advocates PA Ayub Khan and Niji K Shahul
Respondents: Public Prosecutor Jibu TS; Advocate Rema Smrithi VK