Waiver of Maintenance Is Opposed to Public Policy: Kerala High Court Upholds Interim Maintenance Award to Divorced Wife

"A wife cannot be contractually excluded from her statutory right to maintenance" - Kerala High Court delivered a significant judgment concerning a woman’s right to maintenance under the Protection of Women from Domestic Violence Act, 2005. Justice A. Badharudeen ruled that a woman’s waiver of maintenance by a private agreement, even post-divorce, cannot override her statutory right under the law.

The judgment reinforces the principle that maintenance is not merely a contractual right but a statutory obligation imposed on the husband. “A waiver in derogation of a statutory right could not be recognised by the court as it affects public policy,” the Court observed, dismissing the revision petition of a husband challenging the award of interim maintenance to his former wife.

The woman, who was earlier granted a divorce decree in 2018, filed a maintenance application under Section 20 of the Domestic Violence Act along with an interim maintenance plea under Section 23. She alleged that she had been subjected to dowry demands and acts of domestic violence, and despite gifting 301 sovereigns of gold and Rs.10 lakh, the abuse persisted.

She sought interim maintenance on the grounds that she was unemployed and her former husband, a pilot earning more than Rs.15 lakh per month, had the means to support her. The husband opposed the claim by relying on an October 2017 agreement (Annexure A2), where the wife allegedly waived all claims including maintenance.

The trial court rejected his defence and granted Rs.30,000 per month as interim maintenance. This was upheld on appeal, prompting the husband to approach the High Court in revision.

“A Statutory Order Can Only Be Demolished in Terms of the Statute”: Legal Principles Reiterated
Citing the Supreme Court's decision in Bhupinder Singh v. Daljit Kaur, Justice Badharudeen held that orders of maintenance cannot be defeated by private contracts. The Court emphasized: “S.125 is a provision to protect the weaker of the two parties, namely, the neglected wife.”

It also referenced Haroon v. Sainabha, in which the Kerala High Court had previously ruled that agreements to forgo maintenance are unenforceable as they contradict the statutory duty to support dependents. “It is the statutory obligation of the husband to maintain his wife and minor son and he could not be permitted to contract out of such an obligation,” the Court reiterated.

The Court further cited Bai Tahira v. Ali Hussain Fidaalli Chothia, holding that declarations in compromise agreements post-divorce do not nullify the right to claim maintenance unless a substantial financial settlement was demonstrated.

Interim Maintenance: Determination Must Be Realistic and Grounded in Financial Reality
Referring to the landmark Supreme Court decision in Rajnesh v. Neha, the High Court noted the importance of a reasoned approach to interim maintenance. It stressed that "the plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications."

Since the petitioner-wife had no proven independent income while the husband admitted a monthly gross income exceeding Rs.8.35 lakh, the Court found the interim award of Rs.30,000 justified and “very reasonable.”

Post-Divorce Claim Under Domestic Violence Act Is Maintainable
The Court also clarified that the woman’s claim under the Domestic Violence Act was not extinguished by the decree of divorce. Referring to Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, the Court affirmed that "an erstwhile wife can also claim maintenance under the D.V Act.”

Justice Badharudeen summed up the legal position: “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 refused to interfere with the concurrent findings of the lower courts and dismissed the husband’s revision petition. It directed him to clear all due amounts within 30 days, failing which the wife could proceed with coercive recovery measures.

Date of Decision: April 10, 2025