R.K. Dash, J.
1. The petitioner challenges the legality and correctness of the order of the Judge, Family Court, Cuttack, in a proceeding under Section 125, Cr. P.C. whereby he has been directed to pay maintenance to his wife, opposite party herein.
2. It is not disputed that the petitioner had married the opposite party according to Hindu rites and customs and after marriage both had been leading a marital life for some time. According to the opposite party, after marriage the petitioner at the instigation of his parents demanded colour T.V., motor cycle and cash as dowry and the same having not been satisfied, started ill-treating her and even tried to do away with her whereupon she left for brother's house and has been residing there.
3. The petitioner's case, on the other hand, is that the opposite party being a woman of easy virtue has been leading an immoral life, inasmuch as she having extra-marital relationship with her brother-in-law (sister's husband) left the mari- tal aboard on her own accord and, therefore, she has forfeited her right to separate maintenance.
4. The learned Judge, Family Court heard the case ex-parte and allowed the maintenance to the opposite party @ Rs. 400/- per month with effect from January, 1993. The said order was assailed in this Court by the petitioner in Criminal Revision No. 139 of 1993 and upon hearing, the Court allowed the revision and remanded the case for fresh hearing. Thereupon the learned Judge, Family Cburt on the very day of appearance of the parties allowed the claim of the opposite party in a hot haste and without affording any opportunity to the petitioner to lead evidence. Aggrieved thereby the petitioner moved this Court against in Criminal Revision No. 405 of 1994 challenging the said order. Upon hearing the parties, the Court set aside the said order and remanded the case for final disposal within a specified time. Consequent upon remand, the learned Court below proceeded with the hearing, recorded the evidence adduced by the parties and on evaluation of the same, passed the impugned order directing the petitioner to pay maintenance @ Rs. 400/- per month with effect from 15.5.1992 or in the alternative a sum of Rs. 60,000/- in lumpsum as permanent alimony. It is for the third time that the petitioner has approached this Court disowning his liability to provide any maintenance to the opposite party.
5. Learned Counsel for the petitioner has raised four points in course of argument. Firstly, he urged that principles of audi alterant partetn had not been followed by the learned Judge, Family Court while disposing of the case on merit inasmuch as he did not afford any opportunity to the petitioner to advance argument and passed the final order by proponing the date. Secondly, when the petitioner had/has always been ready and willing to keep the opposite party and lead a happy conjugal life, the learned Court below ought not to have allowed the opposite party's claim of maintenance. Thirdly, since it was agreed upon between the parties before the Village Panch that neither party would lay any claim for maintenance, the very initiation of the proceeding and the consequent orders passed by the learned Court below are illegal and without jurisdiction. Lastly, it was contended that the scope of power of the Court under Section 125 of the Code of Criminal Procedure (for short, 'the Code') is to award monthly maintenance and not permanent alimony in lumpsum and, therefore, that part of the impugned order allowing a sum of Rs. 60,000/- in lumpsum being contrary to the statutory provision, is liable to be set aside.
6. Learned Counsel for the opposite party on the other hand, supporting the impugned order submitted that it would be evident from record that after conclusion of hearing both parties made their submissions in support of their respective cases, but because the learned Judge, Family Court by advancing the date pronounced the final order, he cannot be faulted with since by doing so no prejudice can be said to have been caused to the petitioner. He further contended that the petitioner's plea of his readiness and willingness to bring back the opposite party and live with her as husband and wife is quite absurd and unbelievable in view of the accusation made against her that she has been leading an adulterous life inasmuch as she has extra-marital relationship with her brother- 'in-law. It was further submitted that since the accusation of aforesaid amounts to 'cruelty' as settled by a catena of judicial pronouncements, the opposite party is entitled to separate residence and maintenance from the petitioner. As regards the alleged relinquishment of right to maintenance, it was contended that the opposite party being not a signatory to any settlement the question of her having agreed not to lay any claim for maintenance did not arise.
7. Section 125 of the Code provides a swift and cheap remedy against any person who despite means neglects or refuses to maintain his wife, minor or major child either legitimate or illegitimate (not being a married daughter), his father or mother when they are unable to maintain themselves. The primary object of the section is to prevent starvation and vagrancy. It is a measure of social justice falling within the Constitutional sweep of Articles 15(3) and 39 enacted to protect the weaker sections. The object is to compel a man to perform the moral obligation which he owes to society in respect of his wife, children and parents so that they are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The jurisdiction of the Court is preventive and not remedial and certainly not punitive. Having a social purpose, Section 125 must receive a compassionate expanse of the sense mat the words permit. The power to be exercised under the said section is discretionary. However, the Court has to exercise such discretion in a judicial manner consistently with the language of the statute with due regard to other relevant circumstances. Bearing in mind the legislative intention behind such provision, it is to be seen whether in the present case learned Judge. Family Court on proper appreciation of facts, circumstances and available evidence passed the impugned order.
8. The consistent case of the opposite party which finds support from her oral evidence is that she was being pestered to bring motor cycle, colour T.V. and cash of Rs. 50,000/- from her brothers and when such demand was not satisfied, she was ill-treated and assaulted by no other than her husband, the petitioner. Her evidence further reveals that when she was pregnant her husband did not take care of her, as a result, there was miscarriage. So when the hope of marital peace was doomed, she left for her father's house and has been staying there. The evidence of the opposite party regarding demand of dowry and consequent ill- treatment has been supported by her brother, P.W.2. As against this, the evidence of the petitioner is that he suspected the fidelity of his wife because of frequent visit of her brother-in-law during his absence. He dissuaded her from the paths she was following and to be loyal to him, but she did not. On the other hand, on some pretext she left for her brother-in-law's house at Tulsipur and has been staying there. This plea of his that his wife has become unchaste has not been supported by any evidence either direct or circumstantial. His father who was examined as O.P.W. 3 did not attribute anything touching character of the opposite party. He has given altogether a different version as to the cause of dispute between the two spouses. According to him, at the time of marriage the petitioner was given an impression that the opposite party was Matriculate, but later on the same was found to be false. So if at all, there was distrust between both the spouses due to frequent visit of the opposite party's brother-in-law, O.P.W. 3 would have been the best person to see that this did not continue further. In that view of the matter and on evaluation of the evidence, I am of the considered opinion that the allegation of adultery as made against the opposite party is unfounded and baseless. This takes me to the next question whether false accusation of adultery amounts to cruelty necessitating the opposite party to remain separate and claim maintenance.
9. Word 'cruelty' has not been defined in the Code. In Halsbury's Law of England, Third Edition, Volume 12, para 514, the meaning of 'cruelty' has been given as under:
'The legal conception of cruelty, which is not defined by statute, is generally described as conduct of such a character as to have caused danger to life, limb, or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger.......'
Generally speaking any intentional and malicious infliction of physical or mental suffering, or the wanton, malicious and unnecessary infliction of pain upon body or the feeling and emotions would amount to cruelty. In matrimonial relation, cruelty includes mental as well as physical injury. A deliberate false imputation with intent to wound and humiliate the other spouse and to make his or her life miserable amounts to cruelty.
In the case of Jaishree Mohan Otavnekar v. Mohan Govind Otavnekar, A.l.R. 1987 Bombay 220, it was held that unauthorised and unfounded allegation of adultery by the husband against his wife amounted to cruelty. Similar view has been taken by other High Courts, (see Ashok Kumar v. Smt. Vijay Laxmi, A.l.R. 1992 Delhi 182; Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe, A.l.R. 1984 Bombay 413;Smt.Aruna Jalan v. Ramesh Chand Jalan, A.l.R. 1988 All. 239 and A v. B, A.l.R. 1985 Gujarat 121). This Court in the case of Ananta Bhottamisra v. Smt. Saraswati Bhottamisra, 59(1985) C.L.T. 11, has held that when this charge of unchastity levelled by the husband is not proved, the wife can refuse to stay with her husband and claim maintenance.
10. Next, it was urged by the petitioner that he is always ready and willing to take back the opposite party and to lead a happy conjugal life and, therefore, is not liable to pay separate maintenance. This plea, in my opinion, is too big a pill to be swallowed, in view of the stand taken by him that the opposite party is unchaste and has extra-marital relation with her brother-in-law. One with a little common sense would hardly believe that a person who has suspected the fidelity of his wife would ever like to keep her any more and have marital relationship with her.
11. The next question arises whether there was mutual agreement between the parties that neither spouse will claim separate maintenance against the other. It appears from the record that the petitioner although produced one xerox copy of a deed of settlement in support of his case, but he could not bring the same into evidence. Therefore, in absence of any acceptable evidence, petitioner's plea of relinquishment of claim of maintenance does not merit any consideration. How- ever, conceding for the sake of argument that there was any such agreement between the parties as claimed by the petitioner, the question arises as to whether such agreement not to enforce legal right to maintenance has the sanction under law. In this context it will be apposite to refer to Section 23 of the Contract Act which, inter alia, provides that any agreement which is opposed to public policy is not enforceable in Court of Law. Such agreement is void, since the object is unlawful. Therefore, if objector consideration of an agreement would defeat the provision of any law and if it is opposed to public policy, the agreement will be treated as unlawful and consequently void. In that view of the matter, the clause in the agreement, if any, that the opposite party will not claim maintenance from the petitioner cannot be legally used as a defence in the present proceeding.
12. The last limb of submission of the petitioner was that the learned Judge, Family Court, lacked jurisdiction to grant maintenance in lumpsum as permanent alimony in a proceeding under Section 125, Cr. P.C. and, therefore, that part of the order being unsustainable, has to be set aside. The section is very clear and explicit, in that the Court while allowing the prayer can order for payment of 'monthly allowance'. Permanent alimony can be granted in a civil proceeding under Section 25 of the Hindu Marriage Act. The present proceeding being one under Section 125, Cr.P.C, the learned Court below did not have power to resort to the aforesaid provision of the Hindu Marriage Act and grant permanent alimony in lumpsum. In that view of the matter, that part of the impugned order granting permanent alimony cannot be allowed to be sustained.
13. In the result, the revision is allowed in part. While maintaining the order of monthly maintenance passed in favour of the opposite party, the alternative order for payment of a sum of Rs. 60,000/- in lumpsum towards permanent alimony is set aside. Before parting with, I may observe that the opposite party has been running to the Court since 1992 claiming maintenance for her sustenance. The petitioner is presently working as a higher grade Assistant in Life Insurance Corporation of India. It is, therefore, desirable that monthly maintenance allowance of Rs. 400/- including the arrears should be deducted from his monthly salary and paid to the opposite party. To carry out this order, a copy of this judgment be sent to the Divisional Manager, L.I.C., Cuttack.