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Mary Do Rozario Vs. Ernest Do Rozario - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Matrimonial Suit No 260 of 1941
Judge
Reported in(1941)43BOMLR830
AppellantMary Do Rozario
RespondentErnest Do Rozario
DispositionPetition dismissed
Excerpt:
.....other--petition by wife for judicial separation and alimony--whether such petition maintainable--wife's costs.;the courts should give full effect to agreements of the nature of separation deeds. such agreements are formed, construed and dissolved and are enforced on precisely the same principles as any commercial agreement. courts will not enforce stipulations in such agreements which are illegal either as being opposed to positive law or public policy. ;observations of lord atkin in hyman v. hyman [1929] a.c. 601, 625 referred to.;petitioner and respondent, wife and husband, who were christians, entered into a separation deed on september 25, 1934, under which the respondent made all the payments he was required to make. a clause in the deed provided--'neither party from this day..........party in respect of any matter or account. that agreement was duly executed by the parties, the wife's solicitors attesting her signature, and the sums required to be paid by the husband were duly paid. but the wife says that they are now exhausted, and her case is that she is practically destitute.3. it is suggested by mr. forbes that it is not open to a husband to pay a lump sum to his wife and get rid of his liability to maintain her; but that question does not arise in these proceedings. it may very well be that in the christian community a husband is under a common law liability in this country, as i think he is in england, to maintain his wife and save her from destitution, and it may be that the wife, having no means of livelihood, could maintain a suit to establish her right.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a wife's petition for judicial separation and a consequential order for alimony.

2. The position is this. The parties, who are Christians, were married in 1932. They were married at Vienna, and soon after the marriage the husband came to India, and later in the year the wife followed him. The petition alleges that his sisters objected to his having married a European lady, and were not friendly towards her. In November, 1933, she went back to Vienna, and in April, 1934, returned to India. But the parties did not live together. They have not lived together since November 27, 1933, when the wife left India for Vienna. After her return in April, 1934, negotiations took place between the husband and the wife with regard to a separation, and the correspondence, which is annexed to the respondent's answer, shows that from August 6, 1934, until September 25, 1934, the husband and wife through their respective solicitors were negotiating with a view to the parties entering into a separation deed. It is not necessary to refer to that correspondence further than to say that it shows that the wife was being advised by independent solicitors, who were looking after her interest. This is not a case of the separation deed having been arranged entirely by the solicitors of the husband who brought in a tame solicitor to advise the wife to execute it. On September 25, 1934, the separation deed was executed. In the first clause the husband covenanted that the wife should live separate, and he agreed to make her certain payments. He was to pay her Rs. 1,500 down; he was to pay Rs. 500 to her solicitors for costs; he was to provide her with a passage back to Europe; and on receiving a cable advice that she had reached Vienna a sum of Rs. 5,000 was to be placed to her credit at some bank in Vienna. Then in Clause II there is the usual covenant by the wife not to molest the husband and to allow him to live separately, and keep him indemnified against debts, and so forth, and not to institute any proceeding for restitution of conjugal rights. Then in Clause IV it is provided:

Neither party from this day shall have any claim against the other party in respect of any matter or account.

That agreement was duly executed by the parties, the wife's solicitors attesting her signature, and the sums required to be paid by the husband were duly paid. But the wife says that they are now exhausted, and her case is that she is practically destitute.

3. It is suggested by Mr. Forbes that it is not open to a husband to pay a lump sum to his wife and get rid of his liability to maintain her; but that question does not arise in these proceedings. It may very well be that in the Christian community a husband is under a common law liability in this country, as I think he is in England, to maintain his wife and save her from destitution, and it may be that the wife, having no means of livelihood, could maintain a suit to establish her right to maintenance notwithstanding the separation deed. I can see a considerable difference in principle between a separation deed, which provides for a weekly or monthly sum to be paid to the wife by way of maintenance, and an agreement, such as I have to deal with in this case, which provides only for payment of a single lump sum. It certainly seems strange that a husband by paying down a lump sum, whether large or small, can rid himself of his obligation to maintain his wife. However, that is not the question which I ha;ve to decide in this case. This is a matrimonial suit, and my jurisdiction to allow alimony, which is another name for maintenance, only arises on my granting a decree for judicial separation, there being no claim in this case to a divorce. Until I determine that I ought to grant a decree for judicial separation, no question of allowing alimony can arise. The jurisdiction of the Court is statutory, and I can only pass such a decree on proof of facts required by the statute to be proved. The only such facts relied on in the petition are cruelty and desertion. It is faintly suggested that there was cruelty, because seven or eight years ago there was some form of moral cruelty consisting mainly of the rudeness of the husband's sisters to the wife. But that is really a fantastic clairn. The suggested cruelty is nebulous and was condoned by the separation deed.

4. With regard to desertion it is clear that a separation deed is a conclusive answer to a claim for desertion without reasonable cause. The deed constitutes a reasonable cause. Mr. Forbes has strenuously argued that this Court is not bound by the deed, that sitting as a Judge in a matrimonial cause I can ignore it, and he has referred to two cases, Adamson v. Adamson (1907) 23 T.L.R. 434, and Holroyd v. Holroyd (1920) 36 T.L.R. 479, in support of his proposition. But in both those cases the husband had deserted the wife, and she had signed without any independent advice an informal document agreeing to live apart on payment of maintenance which the husband had failed to pay. No doubt, the Judges in those cases held that the document she signed did not really amount to an agreement to live apart. But this is an entirely different case. I have to deal with a formal separation deed entered into by the parties on the advice of their respective solicitors, acted upon for years and under which the husband has made all the payments he was required to make. No attempt has been made to set the deed aside, and in my opinion it is quite impossible for me to ignore it. Lord Atkin in Hyman v. Hyman [1929] A.C. 601 deals with separation deeds. He points out that such deeds were not recognized by the Ecclesiastical Courts, but were enforced by the common law, though at one time not favoured by equity, but as a result of various decisions their effect had been recognized. Then Lord Atkin says (p. 625):--

Full effect has therefore to be given in all Courts to these contracts as to all other contracts. It seems not out of place to make this obvious reflection, for a perusal of some of the cases in the matrimonial Courts seems to suggest that at times they are still looked at askance, and enforced grudgingly. But there is no caste in contracts. Agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any respectable commercial agreement, of whose nature indeed they sometimes partake. As in other contracts stipulations will not be enforced which are illegal either as being opposed to positive law or public policy. But this is a common attribute of all contracts, though we may recpgnize that the subject-matter of separation agreements may bring them more than others into relation with questions of public policy.

In my opinion, that passage correctly states the law, and there having been no attempt in this case to get the deed of separation set aside, I can only act upon it. As long as the deed stands, it seems to me apparent that it is impossible to maintain that the husband has deserted his wife without reasonable cause. That being so, the petition must be dismissed.

5. I have felt some difficulty with regard to the proper order to make in this case as to costs. The wife's petition has failed, but the general rule in matrimonial suits is that the wife is entitled to receive her costs from the husband, whether she is successful or not, and whether she is petitioner or respondent. That rule was introduced into England at a time when on marriage the whole of the wife's property vested in her husband, and, therefore, unless he was bound to pay the wife's costs, a husband could never be charged with matrimonial offences, and a wife could never defend herself against unjust charges. Although there may not be the same cogent reason for the rule now, it has not been altered, and still applies with its original force in a case like the present, where the wife has no separate property. But the rule is always qualified in this sense that the solicitor of the wife must have an honest belief in his case. I do not mean to say that he must be satisfied that his case is going to succeed, but he must consider that his client has a case which ought properly to be put before the Court. To apply the rule without any qualification would be to encourage unscrupulous attorneys to file suits in the matrimonial Court, which had no real justification, and were merely a means of making costs. But although the rule is qualified in that way, it is very important that attorneys, who are asked to take up a case on behalf of a wife who has no money, should feel that they can safely do so as long as they act properly. Now, in this case there is no suggestion that the petition was filed with a view to making costs; I have no doubt that the real object of the petition was to secure maintenance for the wife, who is no doubt badly in need of it. But I feel grave doubt whether the wife's attorney really supposed that there was the slightest chance of obtaining a decree for judicial separation; and if I thought that the claim was preferred in this Court merely to bring pressure to bear on the husband taking advantage of the rule which allows the wife her costs in any event, I should decline to give her any costs. But Mr. Forbes, counsel for the petitioner, says that the form of the proceedings was based on his advice. His view was that the only possible way of getting maintenance was to apply to the matrimonial Court for judicial separation, and he assures me that he thought that there was a chance of getting) a decree for judicial separation. I think the petitioner's attorney was entitled to rely on counsel's advice, and in so doing must be taken to have acted bona fide in filing the petition. I propose, therefore, to make the usual order that the husband pay the wife's costs.


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