Right to maintenance under CrPC cannot be waived

A Kerala High Court judgment established that a wife's statutory right to maintenance under Section 125 of the Code of Criminal Procedure (CrPC) cannot be waived in a private agreement, even if she agrees to waive it in a mutual consent divorce. She can still claim maintenance later if she is unable to support herself. 

 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, 1869 (‘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 inherits in the Court even under Section 37 of the Act, when there is a change in circumstances. [Sheela George v. V.M.Alexander, 2025 SCC OnLine Ker 3501].