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Bai Jaya Vs. Ganpatram Kalidas Dave - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 631 of 1939
Judge
Reported in(1941)43BOMLR618
AppellantBai Jaya
RespondentGanpatram Kalidas Dave
Excerpt:
.....as a sufficient change in the circumstances to justify the court in reducing the amount of maintenance fixed under a decree. it is only the permanent reduction in the income of the family property which affords a valid reason for reducing the amount of maintenance. ;jai ram v. mst. shiv devi (1937) i.l.r. 19 lab. 352, followed.;bahuria saraswati kuer v. bohuria sheoratan kuer (1933) i.l.r. 12 pat. 869, sundari ammal v. verkatarama, [1934] a.i.r. mad. 384, gopikabai v. dattatraya (1900) i.l.r. 24 bom. 386, s.c. 2 bom. l.r. 191 and lala maheshwari prasad v. musammat sahdei kunwar (1936) i.l.r. 13 luck. 13, referred to. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category..........that the income of the ancestral property had decreased,. that since about a year before the suit the widow had been earning rs. 45 per month as a nurse in a private institution at ahmedabad, and that the changed circumstances justified the cessation of the payment, or in any case, a reduction of the amount. the widow contended that her service was only temporary and insecure, that she had got no property fetching any income, and that the fact that she was earning by private service at that time did not entitle the plaintiff to stop or reduce the payment for her maintenance which had already been fixed under the consent decree.3. the trial court found that there was no appreciable reduction in the income of the ancestral property, but that the widow had been earning rs. 45 per.....
Judgment:

Divatia J.

1. The parties to this dispute are a Hindu widow and her husband's brother. The appeal arises in a suit filed by the plaintiff, who is the husband's brother, against the widow for a declaration that the defendant is not entitled to get Rs. 65 per annum for her maintenance as settled in a consent decree in a previous suit in 1928, and for a permanent injunction restraining the defendant from executing the decree. In the alternative he prayed for a reduction of the said amount of maintenance in view of the changed circumstances of the parties.

2. The facts which led to the litigation are shortly these:--In 1928 the widow filed a suit against the present plaintiff for getting her maintenance from the joint family property. That suit ended in a compromise under which the plaintiff was to give Rs. 65 per year as maintenance to her. That amount had been paid by him since then, but in 1935 the plaintiff brought the present suit on the ground that the income of the ancestral property had decreased,. that since about a year before the suit the widow had been earning Rs. 45 per month as a nurse in a private institution at Ahmedabad, and that the changed circumstances justified the cessation of the payment, or in any case, a reduction of the amount. The widow contended that her service was only temporary and insecure, that she had got no property fetching any income, and that the fact that she was earning by private service at that time did not entitle the plaintiff to stop or reduce the payment for her maintenance which had already been fixed under the consent decree.

3. The trial Court found that there was no appreciable reduction in the income of the ancestral property, but that the widow had been earning Rs. 45 per month as a nurse and that income was likely; to continue in future. In its opinion that was a sufficient change in the circumstances justifying a reduction of the amount of maintenance already fixed, and on that ground alone the trial Judge reduced the amount of maintenance from Rs. 65 to Rs. 15 per year.

4. On appeal by the widow the Assistant Judge confirmed this decision on the same ground that the income of the defendant as a nurse was a sufficient change in the circumstances which would justify a Court in reducing the amount of maintenance. The learned Judge, however, modified the order of the trial Court by adding that in case the widow lost her service or in case of a change in her circumstances she was at liberty to apply to the Court in execution proceedings to claim a higher amount for maintenance and residence than Rs. 15 per year up to Rs. 65 per year which was fixed under the original decree.

5. It is against this order that the present appeal has been filed by the widow, and it is contended on her behalf that the fact that she has at present got some income on account of her personal exertions cannot be regarded as a sufficient change in the circumstances which might justify the Court in reducing the amount already fixed under the decree. For this proposition the appellant relies upon several decisions of the Indian High Courts. The latest, decision is in Jai Ram v. Mst. Shiv Devi (1937) I.L.R. 19 Lah. 352. There the suit was brought by a person, who was bound to pay Rs. 10 per mensem as maintenance allowance to a widow of the family, for its reduction on the ground that she was employed as a mistress in a Municipal girls' school and was earning more than Rs. 50 per month. It was found that it was not a stable income of the widow and that after her appointment she had consented to work on a reduced salary. It was held that the fact that the widow was having some separate income of her own by her personal exertions was no reason to vary the decree obtained by her because such income cannot be treated as permanent and described as her means. It was observed in the judgment that the income was liable to be stopped at any time when her employers chose to do so, and it was obvious that she could not be forced to work for her own living if she did not wish to do so. In the present case also the evidence shows that the widow is working as a nurse in a private hospital since nearly a year before the suit was filed, and that it was not a permanent job with gradation of salary or security of tenure. The principle of the Lahore case is, therefore, applicable to the facts of the present case.

6. The Patna High Court has also taken the same view in Bahuria Saraswati Kuer v. Bahuria Sheoratan Kuer (1933) I.L.R. 12 Pat. 869. There the widow, who was claiming maintenance from her husband's relations, was being paid some amount annually by her brother for her maintenance. It was contended that that income should be taken into consideration in assessing the amount of maintenance which the defendant was liable to pay to her. It was held that a voluntary payment of such an amount by the widow's brother to her could not be taken into consideration in fixing the amount which she was entitled to receive from her husband's estate, and that such an amount cannot be described as 'means' which the widow possessed, because the word 'means' meant only the income to which she was either legally entitled or the income of her stridhan estate. The Madras High Court also has, in Sundari Ammat v. Venkatarama [1934] A.I.R. Mad. 384, held that where a widow received certain amount of maintenance from the family but subsequently improved her financial condition either by her own efforts or by the generosity of others, she was not liable to have that allowance reduced. There some amount was being paid to the widow by a person out of compassion for her by way of an annual gift, and it was held that such an amount cannot be described as an increase in the means of the widow.

7. There is no authority for the proposition that any personal income obtained by a widow by her own exertions is a justifying cause for reduction of the amount of her maintenance already fixed. The principle which would apply to the case of reduction of an amount already fixed, has been laid down by cur High Court in Gopikabai v. Dattatraya (1900) I.L.R. 24 Bom. 386. That principle is that a suit will lie to obtain a reduction in the amount of maintenance decreed to a Hindu widow on a change of circumstances, such as permanent deterioration in the value of the family property; but where such deterioration was due to the plaintiff's own default in not keeping the property in a proper state of repair, he had no right to ask for a reduction. To the same effect is a recent decision of the Chief Court of Oudh in Lala Maheshwari Prasad v. Musam-mat Sahdei Kunwar (1936) I.L.R. 13 Luck. 13, in which it is held that the amount of maintenance fixed for a Hindu widow can be subsequently reduced by the Court if the income of the family property is permanently reduced, but it should not keep on varying with every fluctuation in the income of the estate. On the same principle the amount of maintenance, already fixed, cannot be varied with every fluctuation in the private income of the widow even if such income could at all be taken into consideration. It is obvious that income by personal service is always contingent and irregular on account of various causes such as illness, leave without pay, change in salary, etc.

8. It is, however, contended on behalf of the respondent that the stridhan property of a widow must be taken into consideration in fixing the amount of her maintenance, and her income from service is her stridhan property. Even assuming that it is so, it is not every kind of stridhan that goes to reduce the amount of maintenance. Just as unproductive stridhan of not very high value and which the widow is not likely to dispose of cannot be taken into account in fixing the amount of maintenance, so also her personal earnings, especially when they are uncertain in amount and unstable in duration, should not go to reduce the amount of her maintenance from her husband's property, much less when it is already fixed by a consent decree. On principle, such reduction is objectionable as it would, in many cases, encourage the widow to lead an idle life when she feels that her own earnings will not materially add to her income as her maintenance would be proportionately reduced. It is, therefore, a sound principle that once her amount of maintenance is fixed, it is only the permanent reduction in the income of the family property which would afford a valid reason for reducing the amount, and that it should not be affected by her income from personal service. This principle is not opposed to any provision of Hindu law. On the other hand, it is consistent with its rule that it is only the stridhan property of a widow capable of producing, income that is to be considered in fixing the amount of maintenance.

9. I think, therefore, that the lower, Courts were wrong in holding that the amount of maintenance, which the defendant had already obtained under the consent decree was liable to be reduced because of her earnings by personal service.

10. The appeal is, therefore, allowed, the decree of the lower appellate Court is set aside, and the plaintiff's suit is dismissed with costs throughout.


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