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Bai Gulbai Behramsha D. Harver Vs. Behramsha D. Harver - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 105 of 1913
Judge
Reported inAIR1914Bom26; (1914)16BOMLR211
AppellantBai Gulbai Behramsha D. Harver
RespondentBehramsha D. Harver
Excerpt:
.....of the high court.;the high court on its original side has no jurisdiction in a suit between a parsi husband and a parsi wife to make an order for-permanent alimony unaccompanied by any order for judicial-separation, which lies within the jurisdiction of the parsi chief matrimonial court at bombay. - - 1. the plaintiff, a parsi married woman has filed this suit for maintenance alleging that her husband has treated her with such cruelty as to render it improper that she would be compelled to live with him and that, therefore, in law that amounts to desertion, or a failure on the part of the husband to fulfill the legal liability entailed upon him to maintain his wife. there is no record of any ecclesiastical court having given a decree simply for maintenance on the ground that the..........matrimonial disputes amongst the parsis and though there is apparently no provision by which a parsi wife can apply to the parsi matrimonial court for an order of maintenance by itself on the ground of desertion, she can on certain grounds claim that she is entitled to demand judicial separation and on the court granting a decree for judicial separation, the court can order that the husband provide her with permanent alimony.3. now, the plaintiff in this case in her plaint alleged facts which come within section 31 of the parsi matrimonial act, and it seems clear that if she can establish those facts she would be entitled in the parsi matrimonial court to a decree for judicial separation. she comes to this court to establish those very facts on the ground that she is not bound to ask.....
Judgment:

Macleod, J.

1. The plaintiff, a Parsi married woman has filed this suit for maintenance alleging that her husband has treated her with such cruelty as to render it improper that she would be compelled to live with him and that, therefore, in law that amounts to desertion, or a failure on the part of the husband to fulfill the legal liability entailed upon him to maintain his wife. The question arises whether she is entitled to file a suit on the Original Side of the Court for maintenance It appears that in England when the Ecclesiastical Courts' had exclusive jurisdiction in Matrimonial matters those Courts only granted maintenance or alimony when the order was coupled with a decree for what was equivalent to the present decree for judicial separation. There is no record of any Ecclesiastical Court having given a decree simply for maintenance on the ground that the husband had failed to maintain his wife. The powers of the Ecclesiastical Courts were handed over to the High Court in the Probate and Divorce Division by the Matrimonial Causes Acts, and no authority has cited to me to show that the High Court, either under or apart from the divorce jurisdiction, has jurisdiction to pass orders for maintenance in a suit by a wife against her husband on the ground that the husband has declined to maintain his wife. In England the Justices have now summary powers to h' the husband to maintain his wife if she can prove that the husband has deserted her, and in case the Justices refuse to order maintenance there can be a reference to the High Court, and it seems clear that the application would be made to the High Court in its Probate and Divorce Jurisdiction.

2. In the case of Parsis there is a special Act which establishes a special court for the purpose of deciding matrimonial disputes amongst the Parsis and though there is apparently no provision by which a Parsi wife can apply to the Parsi Matrimonial Court for an order of maintenance by itself on the ground of desertion, she can on certain grounds claim that she is entitled to demand judicial separation and on the Court granting a decree for judicial separation, the Court can order that the husband provide her with permanent alimony.

3. Now, the plaintiff in this case in her plaint alleged facts which come within Section 31 of the Parsi Matrimonial Act, and it seems clear that if she can establish those facts she would be entitled in the Parsi Matrimonial Court to a decree for judicial separation. She comes to this Court to establish those very facts on the ground that she is not bound to ask for a judicial separation but is entitled to get from this Court on its Original Side an order for permanent alimony. It seems to me clear that this Court has no jurisdiction in a suit between a Parsi husband and a Parsi wife to make an order for permanent alimony unaccompanied by any order for judicial separation, which admittedly by itself this Court has no jurisdiction to grant.

4. There is no question about a denial of justice because the plaintiff can file her petition in the Parsi Matrimonial Court and there establish the very facts which she relies upon in her present plaint. Apparently she has some objection to applying for a decree for judicial separation, but as I pointed out, as far as I can see, in the Matrimonial Courts, both in England and India, this is the only way by which a wife is entitled to get a decree for permanent alimony.

5. I may add that it appears that under the Parsi Matrimonial Act such questions of fact as are alleged in this case are questions which the Act specifically directs should be tried by the Parsi delegates in the Parsi Matrimonial Court, and not by the Judge.


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