IMPORTANT POINTS
(1) Maintenance/alimony – Divorced wife is entitled to raise claim for permanent alimony against former husband – There exists no legal bar to file a separate petition asserting such a claim subsequent to conclusion of proceeding for dissolution of marriage.
(2) Misquoting or omission to quote a provision will not debar parties from claiming right under substantive provisions of law, if they are actually entitled to it.

JUDGMENT

P. Krishna Kumar, J.—This appeal is preferred against the order rejecting an application for maintenance filed by the appellants against the respondent.

2. The first appellant is the divorced wife of respondent, and the second appellant is their child. The appellants filed a petition under Section 26 and Rule 1 of Order VII of the Code of Civil Procedure r/w Section 7 of the Family Courts Act before the Family Court, Mavelikkara, claiming Rs.3,60,000/- as arrears of maintenance for the previous three years and Rs.5,000/- each per month towards future maintenance. The parties are Christians.

3. The learned Family Judge dismissed the claim on the finding that, as per a compromise agreement (Ext.B2), the first appellant had relinquished her right to maintenance from the respondent on receiving Rs. 30,000/-. It was also found that she failed to prove her inability to maintain herself, as well as the ability of the respondent to provide the amount of maintenance claimed. Regarding the claim for the child, the Family Court found that it is not maintainable as Section 37 of the Divorce Act (‘the Act’, for short) does not apply to a minor child. It was also observed that, since the respondent had been paying a monthly sum of Rs.175/- to the child as per the order in M.C.No.34/1998 on the file of the Judicial First Class Magistrate Court, Mavelikkara, the remedy available to the child is to make an application under Section 127 of the Code of Criminal Procedure (‘Cr.P.C.’, for short) for enhancing the allowance of maintenance before that court.

4. We have heard Sri. Nirmal V. Nair, the learned counsel for the appellants, and Dr. V.S. Sankarjee, the learned counsel for the respondent.

5. The first appellant and the respondent got married on 20.04.1995. Their marital tie was dissolved by a decree of divorce on mutual consent under Section 10A of the Act with effect from 3.8.2004. After applying for a joint divorce, they entered into a compromise agreement (Ext.B2, undated), by which the respondent relinquished his rights in favour of the first appellant in respect of 15 cents of land which was conveyed in his name at the time of their marriage by the parents of the first appellant. Further, on receiving Rs.30,000/- from the respondent, the first appellant also relinquished her rights to future maintenance.

6. In 2012, the appellants filed the petition claiming maintenance on the ground that they were unable to maintain themselves, as the first appellant had to give up her job to bring up the second appellant. The respondent has been deriving Rs. 30,000/- per month from his lottery business, and thus he was bound to maintain them, but he refused to do so, it was contended.

7. Let us first consider whether the first appellant is entitled to get maintenance from the respondent after her divorce, and if so, whether Ext.B2 agreement would disentitle her from claiming maintenance.

8. The appellants resorted to Section 37 of the Act and Section 125 of the Cr.P.C. to support their right to claim maintenance. Section 37 of the Act reads as follows:

“37. Power to order permanent alimony.- Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.

Power to order monthly or weekly payments - In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be