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Pirojshah Bharucha Vs. Hirabai Bharucha - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberParsi Matrimonial Suit No. 2 of 1943
Judge
Reported inAIR1945Bom537; (1945)47BOMLR514
AppellantPirojshah Bharucha
RespondentHirabai Bharucha
DispositionAppeal allowed
Excerpt:
parsi marriage and divorce act (iii of 1936), section 40 - permanent alimony-agreement between husband and wife not to claim future alimony-agreement contrary to public policy-void agreement-indian contract act (ix of 1872), section 23.;a consent, given by a wife to her husband, after dissolution of marriage between them,. giving up her claim to future maintenance, is contrary to public policy and therefore void, even if it is embodied in a consent order. such a consent does not prevent the wife from claiming future alimony under section 40 of the parsi marriage and divorce act, 1936.;hyman v. hyman : hughes v. hughes [1929] p.1 referred to. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated.....coyajee, j.1. the petitioner in this application asks for fixing of maintenance by the court under section 40 of the parsi marriage and divorce act, iii of 1936. the respondent filed a suit for divorce against the petitioner and the petitioner had filed a counter-claim for the same relief, and the husband not having pressed his suit, the counter-claim was decreed and the petitioner was granted a decree. after the decree for divorce was passed, parties arrived at certain consent terms in connection with the custody of the children, permanent alimony and provision for the maintenance of the children and the said terms were set out in the consent order. one of the terms of the consent order runs as follows :this court doth declare that the defendant hereby agrees not to claim alimony now or.....
Judgment:

Coyajee, J.

1. The petitioner in this application asks for fixing of maintenance by the Court under Section 40 of the Parsi Marriage and Divorce Act, III of 1936. The respondent filed a suit for divorce against the petitioner and the petitioner had filed a counter-claim for the same relief, and the husband not having pressed his suit, the counter-claim was decreed and the petitioner was granted a decree. After the decree for divorce was passed, parties arrived at certain consent terms in connection with the custody of the children, permanent alimony and provision for the maintenance of the children and the said terms were set out in the consent order. One of the terms of the consent order runs as follows :

This Court doth declare that the defendant hereby agrees not to claim alimony now or at any time in future.' When this order was obtained I had drawn the attention of the counsel to the nature of the order and remarked that this part of the order may not be enforceable. But the counsel said they would take that risk. The petitioner has now made this application to the Court on the ground that at the time when this order was made she was being helped by her brother who maintained her apart from her income by personal exertion to maintain herself, but now that support of her brother has ceased and she applies that the Court should fix maintenance for her. The question arising on this application is an important one, namely, whether the wife after the dissolution of marriage can give up her claim to future alimony. This question is of importance because I have found in disposing of matters in this Court that parties to several proceedings do make arrangements of this nature which arrangements are incorporated as part and parcel of the consent orders consequent upon decrees for divorce. My attention has also been drawn to the fact that similar orders have been made for a long number of years. When the matter came up for hearing last time, I adjourned it so that counsel may appear on behalf of the respondent and argue this matter, and at my invitation Mr. Khambatta has appeared on behalf of the respondent as amicus curiss. Full arguments have been addressed to me by both counsel and I may say that I am indebted to Mr. Khambatta for the very clear and thorough manner in which he has helped the Court in discussing authorities cited on both sides. The question before me is one that has been argued before the Courts of law in England for a long number of years. Certain questions have arisen in England where the husband and wife have entered into an agreement by a deed whereby the wife undertook not to ask for maintenance at any future time other than that provided for under the deed, and the question whether such an agreement by the wife made prior to the dissolution of marriage is legal and binding has also been considered. The question before me is still further complicated by the fact that the agreement relied upon was arrived at by consent of parties and made part of the order of the Court in the form of a consent order between the parties.

2. I have therefore to answer two questions, whether such an agreement either before or after dissolution of marriage is binding on the wife, and whether an agreement of this nature (a) is contrary to public policy, and (b) whether the Court will recognize such an agreement where the Court has statutory powers under Section 40 of the Parsi Marriage and Divorce Act, 1936, to grant and fix maintenance. This section is equivalent to Section 190 of the English Divorce Act.

3. In this connection I have been referred to certain leading cases in England which were discussed before me. The first case of this nature appears to be Morrall v. Morrall (1881) 6 P.D. 98. In that case the wife by a deed of separation agreed to accept certain sums as a provision for her support and not to sue her husband for any further maintenance. Subsequently having discovered that he had been guilty of incestuous adultery she obtained a decree for dissolution of marriage. The President of the Divorce Court held that in those circumstances where the husband was found guilty of adultery a state of things arises not in contemplation when the deed was executed and the wife was not restrained by the deed. He held that circumstances having arisen they would justify the wife in bringing an action for dissolution of marriage and that she is entitled to all the incidents of that suit and amongst them to an allowance based upon her husband's actual income. Mr. Khambatta has pointed out to the Court that the learned President has grounded his reasoning on the chain of circumstances and, that it was on the particular ground that the husband was found guilty of incestuous adultery that the relief was granted to the wife. That position of the parties had changed and it was on that basis the Court proceeded to ignore the deed and the provisions of the deed and passed an order for maintenance as prayed for.

4. The next case referred to is the most important one, namely, Hymm v. Hyman [1929] P. 1, which was first considered by a very strong bench in the Court of Appeal and was from that Court taken to the House of Lords. In this case by a deed of separation the wife covenanted not to take proceedings to compel her husband to allow her alimony or maintenance beyond a stipulated amount and thereafter the wife obtained a decree for dissolution of the marriage on the ground of the husband's adultery. It was held that she no longer remained bound by the covenant but was free to take proceedings for permanent maintenance under Section 190 of the Supreme Court of Judicature (Consolidation) Act, 1925. The President of the Court Lord Merrivale in his judgment pointed out that it was contended! on behalf of the respondent that (p. 10) 'the covenant, having been made for good consideration by a competent contracting party, ought to be enforced by the Court..' The deed of compromise was not made in contemplation of any proceedings for dissolution of marriage. The learned President further says (p. 10) :

The matter last mentioned does not present the true ground on which, as it seems to me, the issue between the parties is to be dealt with.

5. The decisive question was as follows (p. 11) :

The decisive question here is whether the present applicant has covenanted not to do what she now seeks to do. In' my opinion, she has not. She covenanted, as a wife, against making, as a wife, any claim upon her husband, as a husband, for support, maintenance or alimony, that is to say, she covenanted not to proceed in a Court having jurisdiction in such matters..

She is not so proceeding. She is no longer a wife; but having been the wife of the respondent, she comes to the Court under a statute applicable to her present plight to ascertain whether the Court shall, under the circumstances of her case, deem it right that her some-time husband shall make her some pecuniary allowance.

6. The learned President further points out (p. 11) that the wife's application in this particular case was not weakened by the observations in Morrall v. Morall to the effect that a wife's covenant not to claim increased maintenance was released by the adultery of her husband established in a suit for divorce, and as observed by the President in that case an order was made in favour of the wife. The husband appealed to the Court of Appeal and the leading judgment was delivered by Lord Hanworth M.R. The learned Master of the Rolls after reviewing the facts of several cases including the case of Morrall v. Morrall the case of Bishop v. Bishop : Judkins v. Judkins [1897] P. 138 and the case of Gandy v. Gandy (1882) 7 P.D. 77 observed as follows (p. 27) :

In the Court of Appeal it was argued in both cases that a new state of facts had arisen, since the agreements of separation had been entered into.

7. After considering the case of Gandy v. Gandy he observes as follows (p. 28) :

Just as an agreement between husband and wife providing for a future separation has been held void, so also it is not possible by a covenant in a deed of separation to bar a suit for judicial separation or for divorce. The Court is charged under the original Acts, and the Consolidation Act, to be satisfied in divorce suits that the case has been proved, that there has not been connivance or collusion for the purpose of obtaining a divorce 'contrary to the justice of the case' that there has not been condensation, and that its interference is justified.. The Court cannot forego its duties, and it cannot be bound by an estoppel between the parties : for the jurisdiction in matters of divorce is not affected by consent. No admission of cruelty or adultery, however formal, can bind the Court. The public interest does not allow parties to obtain divorce by consent and the analogy of ordinary actions cannot be applied.

8. The learned Master of the Rolls concluded by saying (p. 29):

.upon a decree being made absolute for the dissolution of the marriage, the effect of the deed of separation is gone... that the parties are no longer living apart by agreement, but by the decree of the Court

9. and the learned Master of the Rolls thereupon agreed in dismissing both the appeals. Now I refer to the judgment of Lord Justice Scrutton which is very much to the point as far as questions arising before me are concerned. Scrutton L.J. observes as follows (p. 30) :

The Court in these proceedings is not deciding what effect, if any, the Divorce Court should give to the previous agreement.. Nor is the Court considering, if it grants maintenance, whether it should make any order as to the continued validity of the deed of separation.... The question is simply : does the contract in the separation deed not to take any further proceedings for maintenance, in itself and without more inquiry bar the Court from hearing an application for maintenance after a decree for divorce, based on adultery sub. sequent to the separation deed?

10. The learned Lord Justice observed further as follows (p. 30) :

The Divorce Court is entrusted with a jurisdiction of national importance. The stability of the marriage tie, and the terms on which it should be dissolved, involve far wider considerations than the will or consent of the parties to the marriage.

11. Then he quotes from Harriman v. Harriman [1909] P. 123, 131 as follows (p. 31) :

The jurisdiction in matters of divorce is not affected by consent. No admission of cruelty or adultery, however formal, can bind the Court. The public interest does not allow parties to obtain divorce by consent, and the analogy of ordinary actions cannot be applied.

12. The learned Lord Justice then proceeds to observe (p. 31) :

The alteration of the status of marriage involves considerations far beyond the private agreement of the parties.

13. He cites with approval (p. 31) the observation in Judkins v. Judkins [1897] P. 138 to the effect that the power as regards permanent alimony is very wide and it would not be right for this or any Court to put a narrow construction upon it, or to fetter in any way the Court or Judge entrusted with its application in cases of divorce. The learned Lord Justice says this (p. 32) :

Dissolving the marriage, the Court has then1 the statutory power and duty of providing, at the expense of the adulterous husband, such maintenance for the woman who ceases to be a wife, and the children who have no longer a married couple to depend on as the Court thinks proper after considering all the circumstances. If the private agreement of the parties before the adultery complained of cannot stop the proceedings for divorce, I do not understand how it, without more, can stop the incidental but necessary consequences of divorce, proper maintenance for the wife and children.

14. Then he further observes as follows (p. 33) :

Four Presidents of the Divorce Division have for varying reasons all taken the view that in a case of divorce the agreement of the parties before the adultery complained of not to apply for maintenance is not enough in itself to stop the Courts granting maintenance under their statutory power.

15. Lawrence L. J. observes as follows (p. 43) :

In my judgment the principle upon which these cases were decided apply equally to a covenant by a wife not to sue the husband for further maintenance, and accordingly no provision restricting the operation of such a covenant, if absolute in terms, ought to be implied either on the ground that, unless so restricted, the covenant might be against public policy, or on the ground that the covenant ought to be construed as being commensurate only with the period during which the husband is fulfilling the character of husband.

16. With reference to the question of public policy the learned Lord Justice again observes as follows (p. 45) :

Dealing now with the question whether the wife's covenant is against public policy ; it is, of course, well settled that all provisions, whether made before or after marriage, for a future separation of the spouses or for a future dissolution of the marriage contract, are void on the ground of public policy.

17. This observation has been in a sense dissented from in a subsequent judgment by Sir Wilfred Greene M. Rule which I shall refer to hereafter, Lawrence L. J. thereafter observes (p. 46) :

It has, however, never been decided whether express provisions contained in. a separation deed for what is to happen in the event of a future judicial separation or of a future divorce are or are not void as against public policy, but the Court of Appeal in Bishop v. Bishop considered such provisions to be of doubtful validity.

18. I wish to emphasize a further observation which is as follows and which is pertinent to the discussion which is to take place in my judgment (p. 48) :

In the absence of any contract to the contrary the wife is free to make an application for maintenance on obtaining a divorce or not to make such an application, just as she pleases.

19. Then he says that she is at liberty to come to Court at (p. 48) :

One strange result of holding that she is precluded from making such a contract would be that she could not, after haying presented a petition for maintenance, compromise the proceedings but would have to prosecute them to judgment.

20. The case of Gandy v. Gandy was considered by several Lords Justices, Lord Justices Lawrence holding that the actual decision in the case of Gandy v. Gandy was in his opinion of no direct bearing on the question to be decided in the case of Hyman v. Hyman. I do not wish to quote further except certain observations of Lord Justices Russell at p. 90 where he says as follows :

I put to counsel for the respondent in argument the question whether after divorce obtained by a wife, and an order made for payment to the wife of an annual sum under Section 190, Sub-section 2, of the Act of 1925, the man and woman could for valuable consideration bargain not at any time thereafter to apply to the Court under Section 196 of the Act of 1925 It was admitted that such a contract would be valid and enforceable. In my opinion the admission was correctly made, but it is quite irreconcilable with all the arguments of the respondent, except the argument of invalidity founded upon public policy.

21. Their Lordships after setting out the reasons dismissed the appeal, and an appeal from the decision of the Court of Appeal was preferred to and heard by the House of Lords Hyman v. Hyman [1929] A.C. 601. Their Lordships confirmed the decision of the Court of Appeal which I have referred to. The principal judgment was delivered by Lord Hailsham L.C. and he observed (at p. 606) that the decision of the Court of Appeal was based partly on the ground that the deed of separation on its true construction ceased to operate when the relation of husband and wife ceased to exist, and therefore that there was no agreement by the respondent not to bring her petition for maintenance before the Court. If this contention be well founded, the obvious result was that the appeal would necessarily fail. But the majority of the Court of Appeal further reached their decision upon the ground that even if the respondent had covenanted in express terms not to bring the present petition, she could not be bound by such a covenant so as to preclude the exercise by the Court of its statutory power to award maintenance. Their Lordships of the House of Lords proceeded to consider the matter because they opined that the second ground of decision raised a question of far-reaching importance, and if it be correct, it was sufficient to decide the appeal. After referring to the Act of 1857 Lord Hailsham concluded that paragraph by saying (p. 608) :

If this be the proper inference from the language of the statute, I am prepared to hold that the parties cannot validly make an agreement either (1.) not to invoke the jurisdiction of the Court, or (2.) to control the powers of the Court when its jurisdiction is invoked.

22. After considering the case of Morrall v. Morrall Lord Hailsham referred to the case of Gandy v. Gandy and discussed further cases and observed that the fact that in Gandy v. Gandy the Court had only decreed judicial separation, whereas in the case of Hyman v. Hyman it had dissolved the marriage altogether and that may make such a difference in principle as to render the two cases distinguishable. He then observes as follows (p. 614) :

However this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the Court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own covenant preclude herself from invoking the jurisdiction of the Court or preclude the 'Court from the exercise of that jurisdiction.

23. The next judgment is that of Lord Shaw of Dunfermline, who after referring to. the Supreme Court of Judicature Act, 1925, and the language of the earlier part of Section 190 on which the power of the Court depends fundamentally, says as follows (p. 616) :

I am humbly of the opinion that the Court granting divorce is charged, and charged fully, under that section with the power of settling the allowance to the wife, and that is; not precluded from discharging that duty by the existence of the provisions of a voluntary deed of separation between the parties.

24. At p. 617 Lord Shaw says as follows :

I do not conceal from your Lordships that I think the judgment of the Court of Appeal in the first case of Gandy v. Gandy was-I say so quite boldly-an erroneous judgment.

25. And then he goes on to discuss the case of Gandy v. Gandy in detail. The gist of the judgment of the Law Lord is to be found at p. 622 which is as follows :

The true principle is that whenever the aid of a Court is invoked to grant a judicial allowance and there is presented to it an agreement as in bar of the exercise of the right or the discharge of the duty under statute then the Court is bound to look at such an agreement and to decline to be turned from the performance of its judicial duty or the exercise of its judicial rights when the agreement so tabled is of a nature repugnant to and defiant of those obligations which are inherent in the sanctity of marriage itself. To hold otherwise would bring the law into confusion and Courts into contempt, for, as already indicated, it would be using Courts of law for purposes essentially subversive of society.

26. The judgment of Lord Buckmaster lays down in the forefront three propositions, and the first was that the covenant in the deed did not apply to the rights arising on divorce, (2) that the covenant if applicable to divorce was void in law as contrary to public policy ; and (3) that it was impossible by covenant to exclude the statutory rights in favour of the wife arising on divorce. The first point was special to the subject-matter of the case under consideration. The second point was more difficult. The learned Law Lord referred to the Act of 1857 and held that in his opinion the Court had power to grant the application on the change of status and to decree maintenance for the wife.

27. An important paragraph in the judgment of Lord Atkin is to be found at p. 628 where he observes as follows :

I think, however, that the wife is entitled to succeed upon another ground. Her marriage has been finally dissolved upon her petition.

28. and then he refers to the powers conferred under the Statute which have been extended by the Acts of 1863 and 1907 and are now contained in Sections 190 to 192 of the Judicature Act of 1925. The necessity for such provisions according to the learned Law Lord is obvious (p. 626) :

While the marriage tie exists the husband is under a legal obligation to maintain his wife. The duty can be enforced by the wife, who can pledge his credit for necessaries as an agent of necessity.., But the duty of the husband is also a public obligation, and can be enforced against him by the State under the Vagrancy Acts and under the Poor Relief Acts. When the marriage is dissolved the duty to maintain arising out of the marriage tie disappears.

29. and the learned Law Lord held that in the absence of any statutory enactment the former wife would be left without any provision for her maintenance other than recourse to the poor law authorities, and he says (p. 629) :

In my opinion the statutory powers of the Court to which I have referred were granted partly in the public interest to provide a substitute for the husband's duty of maintenance and to prevent !the wife from being thrown upon the public for support.

30. and further observes (p. 629) :

The wife's right to future maintenance is a matter of public concern, which she cannot barter away.

31. The decision in Hynian v. Hyman both of the Court of Appeal and of the House of Lords is really based on the observations I have quoted above and on the ground that on dissolution of marriage there is no longer the position of husband and wife between the parties and therefore any deed containing a covenant could not be operative ,as between parties whose status had changed. Both in the Court of Appeal and in the House of Lords reliance was placed on two further grounds. The first is that statutory powers are conferred on the Courts of law and the Courts ought not to allow parties to come to any arrangement subversive to any of these statutory powers, and secondly that these provisions are based on the ground of public policy as pointed out by Lord Justice Atkin.

32. In this connection I have been referred to the observations of Sir Wilfrid Greene M. Rule in the case of Mills V. Mills [1940] P. 124. The Master of the Rolls at p. 131 refers to the observations in Hyman v. Hyman that the law does not allow the wife by any bargain to deprive the Court of the power to vary an order for maintenance once it has been made. The suggestion was not approved of in the case of Mills v. Mills in the following terms (p. 132) :

I can see no reason, in the language of the statute, or in the policy of the law, why parties in such circumstances, where an order for maintenance of this nature has been obtained, should not be able by agreement to put an end to it, and to substitute some other provision which they may agree upon.

33. These remarks apply to an order for maintenance that has been already made and the Master of the Rolls was refuting the suggestion that once an order for maintenance was made it was indestructible and that such a view was based upon an extravagant construction of the Act of Parliament and an extravagant view of public policy. These remarks, however, do not apply to the principle discussed above, namely, that the wife cannot waive altogether all claims to future alimony, at the date when the decree for dissolution of marriage was passed. That in my opinion stands altogether on a different footing and is based both on a proper construction of the Act and on a proper view of public policy as indicated above. Therefore these remarks of the Master of the Rolls do not, in my opinion, affect the position laid down in Hyman v. Hyman that the question of a wife's maintenance is both a question of the statutory powers of the Court to grant alimony on a proper application being made and on a proper view, a matter of public policy.

34. I may say that the Parsi Marriage and Divorce Act of 1936 has been at all times grounded on English law both as regards the statute and the common law. In fact the remodelling of the Parsi Marriage and Divorce Act of 1936 was based on Lord Buckmaster's Bill of 1920, which was much ahead of the English Act that was in existence at the time. Section 40 of the Parsi Marriage and Divorce Act gives wide powers to the Parsi Matrimonial Court. I may say that Section 40 is also based on grounds of public policy and based directly on the principle of not allowing parties whose marital ties are severed to become a burden on charitable institutions of the community like the Parsi Punchayat who are really the guardians of Poor Relief of the community.

35. The facts and circumstances of this case are different from the facts and circumstances of the cases I have discussed above. This is not an agreement between parties arrived at prior to the date of the dissolution of marriage as in the cases referred to by me above. In this case parties arrived at certain consent terms immediately after the decree for dissolution. In fact a decree was first passed. The parties ceased to be husband and wife and subsequent to that a consent order was taken, when a consent order setting out the arrangement between the parties was passed whereby the wife gave up all her rights to alimony in future. This is a consent order between the parties and a consent decree between the parties, it has been argued, should be set aside only on well known grounds, and therefore there should be first a proceeding to set aside such a consent decree or consent order before the Court can grant maintenance. A consent decree between the parties is a contract between the parties which has been recognised by the Court and as such it will stand as a contract. The question is whether such a contract, namely, the wife giving up her claim to alimony altogether is a valid contract. In other words is it a voidable contract or a void contract? If it were a voidable contract, in my opinion the Court would not entertain this application unless the contract has been avoided by a proceeding to set aside the consent order or the consent decree. Where, however, the contract is void ab initio it is a nullity and there can be no question of setting aside such a contract, as a void contract is a contradiction in terms. Therefore the principle is that where on grounds of pu51ic policy a wife cannot enter into such a contract, then the contract is void and the Court will take notice of that and ignore that part of the order although it was made by consent, because as remarked by Lord Atkin 'The wife's right to future maintenance is a matter of public concern which she cannot barter away.' Accepting this proposition, in my opinion, the wife could not barter away such a right and enter into a contract to that effect so that such a contract would be a void contract in the eye of the law. It is on the same footing, in a sense, as contracts made by minors. Such a contract is no contract in the eye of the law as laid down by their Lordships of the Privy Council in the case of Mohori Bibi V. Dhurmodas Ghose ( : Bom. L.R. 421. I am fortified in this position by a reference to the case of Narasagounda V. Chawagounda I.L.R (1918) Bom. 638 :20 Bom. 608 F.B., in which Kemp J. observed (p. 663) :.a minor's deed stands on a particular footing by itself. It has been decided by the highest tribunal that a minor's contract is null and void ab initio.

36. and that therefore (p. 663):.it can scarcely have been intended to impose an obligation on the minor, after attaining majority, to set aside a transaction entered into during minority and which it has expressly declared to be void and incapable of ratification.

37. In these circumstances I am of the opinion that it is not necessary for the petitioner to take any steps for the purpose of setting aside that particular part of the consent order as the contract is contrary to public policy and is, in my opinion, null and void. Referring to the question of public policy I am of the opinion that for a Matrimonial Court to recognize such an arrangement would be an inducement to the parties to collude so that the husband may allow the wife to take an ex parte decree on the undertaking that the wife will not apply for alimony at any time in future. This is a further ground on which it would be contrary to public policy to allow such an arrangement.

38. In these circumstances I hold that that particular part of the consent order is not a bar to the present application by the wife for fixing her alimony under Section 40 of the Parsi Marriage and Divorce Act of 1936.


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