The court emphasized the importance of public policy against vagrancy or destitution and held that the waiver clause in the consent terms cannot oust the jurisdiction of the court as expressly conferred by Section 25(1) of the Hindu Marriage Act.

JUDGMENT :

S. Talapatra, J.

This appeal U/s.19(1) of the Family Court Act, 1984 arises from the Judgment dated 19.09.2019 delivered in Civil Proceeding No.108 of 2018 by the Judge, Family Court, Baripada, District-Mayurbhanj.

2. Be it noted at the outset that, the entire Judgment is not under challenge. Only the direction, by which the appellant has been asked to pay the permanent alimony of Rs. 4,00,000/-(Rupees four lakhs) has been challenged.

3. Briefly stated the facts those are relevant are that the appellant and the respondent failing to live a peaceful conjugal life, filed a petition under section 13(B) of the Hindu Marriage Act, 1955 for dissolution of their marriage, after they lived two years separately. During that period, it has been asserted, by the parties that there had been no cohabitation. To reconcile the differences, the efforts taken by the Court did not bring any settlement, hence the Court proceeded to decide the petition.

4. Finally, by the impugned Judgment, the marriage between the appellant and the respondent has been dissolved by a decree on mutual consent but with a direction on the appellant to pay a lump sum permanent alimony to the extent of Rs. 4,00,000/-to the respondent.

5. Being aggrieved by that direction, the appellant has filed this appeal contending inter alia that the Judge, Family Court has transcended the jurisdiction as conferred by Section 13 (B) of the Hindu Marriage Act by giving the said direction.

6. Mr. S. K. Mishra learned counsel appearing for the appellant has drawn our attention to a part of the petition that was filed under Section 13 (B) Hindu Marriage Act with an object to show that the respondent had expressly waived any claim of alimony, any other claim from the appellant. For the purpose of reference, the relevant Clause dealing with the said aspect is reproduced here under :

“6. That the petitioner No. 1 undertakes not to claim any alimony from the petitioner No.2 in future and there shall have no other claim in any manner, against that petitioner No.2.”

7. Mr. Mishra, learned counsel has referred to the finding in the Judgment dated 19.09.2019, where it has been recorded that, the parties were examined and they supported the averments of the petition. They have admitted that they have filed the petition jointly and prayed for mutual divorce. Mr. Mishra, learned counsel has laid emphasis by stating that it therefore, clearly transpires that, the Court on due consideration found the clauses of the settlement in order, not unlawful. Hence, it was the duty of the Judge, Family Court to effectuate the understanding as reproduced in the said petition filed U/S. 13 (B) of the Hindu Marriage Act.

8. To buttress his contention, Mr. Mishra, learned counsel for the appellant has relied on a decision of the Apex Court in Ganesh vs. Sunil Kumar Srivastava and another reported in (2020) 20 SCC 787, where it has been enunciated that, when the spouses filed the petition by mutual consent

“Appropriate course to be adopted in the matter is to effectuate the understanding” It has been further observed in Ganesh (supra) that it was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or Stridhan is concerned. According to Mr. Mishra, learned counsel, a direction for payment of permanent alimony to the extent of Rs. 4,00,000/-is unsustainable, in as much as such relief was not sought by the respondent and, hence, is required to be intervened by this Court for ends of justice.

9. Per contra, Mr. T. K. Mishra learned counsel appearing for the respondent has submitted that, it is the duty of the Judge, who is passing decree of divorce under the provisions of Hindu Marriage Act, 1955 to pass the appropriate direction for alimony or maintenance. Mr. Mishra, learned counsel for the respondent has extensively referred to Section 25 (1) of the Hindu Marriage Act. Hence, the said provision may be reproduced.

“25. Permanent alimony and maintenance-(1) Any Court exercisin