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Audumbar Gangaram and anr. Vs. Sonubai Audumbar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 660 of 1957
Judge
Reported inAIR1962Bom35; (1961)63BOMLR595; ILR1961Bom814
ActsContract Act, 1872 - Sections 23; Bombay Hindu Divorce Act, 1947 - Sections 8 and 8(3)
AppellantAudumbar Gangaram and anr.
RespondentSonubai Audumbar
Appellant AdvocateS.B. Sukthankar, Adv.
Respondent AdvocateT.N. Walawalkar, Adv. for ;S.G. Samant, Adv.
Excerpt:
.....life subsequent to order for maintenance -- forfeiture of her right to claim maintenance.;the right of maintenance allowed to the wife on dissolution of marriage tinder the hindu marriage act, 1955, must be kept confined within the four corners of the provisions of the statute. it will not be legitimate to amplify the scope of that right by reference to general principles of hindu law. therefore, once it is proved that the wife has been leading an immoral life she forfeits her right to claim maintenance which is awarded to her at the time of the dissolution.;parami v. mahadevi (1909) 12 bow. l.r. 196, kishanji v. lakshmi (1930) 33 bom. l.r. 510, shivlal v. bai sankli (1930) 33 bom. l.r. 490, sathyabhama v. kesavacharya (1915) i.l.r. 39 mad. 658 and bhikubai v. hariba (1924) 27 bom...........i will now address myself to the main argument that was advanced by mr. walavalkar viz., that the wife's right to claim maintenance from the husband was based on the compromise between the parties. the husband had filed a suit for divorce and one of the grounds urged in support of the prayer was that the wife was living in adultery with one baba mahadu. there was also an allegation of desertion. it was common ground that the relations between the parties had been strained to such an extent that there was no possibility of reconciliation between the husband and wife. therefore even if the husband's suit for dissolution of marriage eventually came to be thrown out in limine there was no possibility of the wife being received by the husband under his roof. that is the main consideration.....
Judgment:

(1) This appeal arises an interesting question under Hindu Law and also the provisions of the Bombay Hindu Divorce Act and the Hindu Marriage Act, 1955. Appellant No. 1 Audumbar who would hereafter be called the husband, was married to Sonubai, the respondent who would hereafter be called the wife, in the month of March 1946. The husband filed a suit against the wife being Suit No. 664 of 1952, asking for divorce on the ground that the wife was living in adultery with one Baba Mahadu who was also added as a co-respondent in that suit. On that ground and also on the ground of desertion the husband asked for dissolution of the marriage under the provisions of the Bombay Hindu Divorce Act 1947. The wife resisted the suit and denied the allegations made by the husband on both the points viz. adultery and desertion. On 11th March 1954 there was a compromise between the husband and the wife under which it was settled that these spouses should pass divorce deeds according to the custom of the caste, that the husband should withdraw the allegations unconditionally made against the wife in the plaint and that the husband should give maintenance to the wife till her re-marriage or till her death. The parties however could not agree on the quantum of maintenance and therefore they submitted this dispute to arbitrator Dattatray Shivram Patil for decision. On the 12th March 1954 Datatraya Shivram Patil gave his award by which he allowed the maintenance at the rate of Rs. 30 p. m. The award further provided that the wife was entitled to receive this amount from the husband till she re-married or till her death and that she would be entitled to that amount irrespective of the consideration as to whether she remained chaste or unchaste. The husband then withdrew the suit the same day i.e. 12th March 1954. The wife filed a suit being Suit No. 268 of 1954 for obtaining a decree in terms of the award. The husband put in his written statement and contended that the clause relating to the provision of maintenance to the wife irrespective of the consideration whether she was leading a chaste or unchaste life, is opposed to public policy and therefore that clause should not be embodied in the decree. On 14th February 1955 the Court passed an order for drawing up a decree in terms of the award except the clause relating to the right of the wife to receive maintenance irrespective of as to whether she was leading a chaste or an unchaste life. The same day a decree was drawn up in terms of the award so far as the quantum of maintenance is concerned and so far as the provision that the wife would be entitled to receive the amount of maintenance till her remarriage or till her death, was concerned. The wife started execution proceeding under Darkhast No. 272 of 1955 for the recovery of the amount in terms of the award decree. The husband appeared and stated that the wife was living in adultery with one Ramchandra Shingte. He therefore contended that she was not entitled to execute the award decree because of her aforesaid act of unchasting. The executing Court referred the husband to file a separate suit. It may be mentioned that in the award decree the charge for the maintenance was kept on the family property. The joint family of the husband comprised of himself and his father. On 9th April 1955 the husband and his father together filed a suit being Suit No. 255 of 1955 which has given rise to the present second appeal, for a declaration that the award decree has become unexecutable by reason of her subsequent act of unchastity and for an injunction restraining her from executing the decree. The trial court held that the wife was living in adultery with Ramchandra Shingte. Consequently the trial Court decreed the suit. The wife preferred an appeal and the learned Assistant Judge to whom the appeal was transferred held that the decree for maintenance was based on a contract and not on principles of Hindu Law and therefore concluded that the fact that the wife was living in adultery after the passing of the decree will not invalidate the decree. Consequently he allowed the appeal and dismissed the suit. It is against that decision that husband Audumbar and his father Gangaram have come up in appeal.

(2) Mr. S. B. Sukhthankar for the husband contended that the real basis for the decree that was passed in Suit No. 268 of 1954 was the provisions of Section 8 of the Bombay Hindu Divorce Act and not the so-called contract. He argued that no contract could possibly entitle the wife to claim maintenance from her husband and for that purpose we will have to fall back upon the provisions of either General Hindu Law or the provisions of the Bombay Divorce Act or the Provisions of the Hindu Marriage and Divorce Act (sic).

(3) Before proceeding to discuss the points of law arising in this case, it is necessary to refer to the agreement which is styled as divorce deed passed by the husband in favour of his wife (Exhibit 31) and the reference to arbitration which also bears the same date. Exhibit 31 is styled as a deed of divorcee. In that document the husband states as follows:

'I am withdrawing all the allegations made by me against you in Suit No. 664 of 1952 unconditionally. Even so it is not possible that hereafter you and I can pull on together well as considerable misunderstanding has arisen between us two. Being convinced of the fact that we will not be able to lead happy married life hereafter, we have mutually decided that we shall obtain divorce according to the custom of the caste. Some intermediaries also suggested to us to take the same course and we accept their suggestion. In accordance with that therefore I am giving you divorce according to the custom of the caste. Hereafter you have ceased to be my wife and I have no claim upon you. Both of us are free to enter into second marriage. The intermediaries have told me and my father that we shall arrange for your maintenance till you remarry or till your death. We have agreed to the term of providing you maintenance till your remarriage irrespective of whether I set up a plea that you have been living in adultery and succeed in establishing that plea. Since we could not agree upon the quantum of the maintenance, we have decided to refer the dispute to Dattatray Shivram Patil of Sholapur'.

Exhibit 18 is the reference which is styled as Rajinama. The principal terms of that document may be set out as follows:

'We have passed divorce deeds in favour of one another in accordance with the custom of the caste. We could not agree about the quantum of maintenance. We have however, no dispute as to the circumstances when payment of maintenance should be stopped and the period during which it is to be continued'.

It is at once clear that the reference does not state that the husband will be liable to pay maintenance to the wife in spit of the fact that the latter was leading an unchaste life. All that this reference stated was that the husband and wife have agreed upon two things: (1) The period during which the husband's liability to provide for the maintenance is to continue and (2) the circumstances under which the liability is to come to an end. This obviously has reference to the well known conditions governing the period of maintenance as also the stoppage of maintenance. In spite of this the arbitrator gave award saying that the liability of the husband will continue in spite of the fact that the wife was leading an unchaste life. The award was attacked on two grounds. Firstly, the arbitrator had no authority to give any decision on this point and secondly the term in the contract was opposed to public policy. Both these contentions were upheld by the Court which passed the decree and the Court directed that the decree should be drawn up in terms of the award after omitting the offending clause.

(4) Mr. Walavalkar for the respondent, wife, laid considerable stress upon the terms embodied in the document styled as divorce deed (Exhibit 31) and contended that this was an essential term of the agreement that was entered into between the parties. According to him the agreement was that the wife should agree to the dissolution of the marriage, that the husband should withdraw the unwarranted allegations made by him regarding the chastity of the wife and that the husband should agree to provide for her maintenance and not to raise a contention about her unchastity in future. I will deal with the nature of the agreement that was arrived at between the parties and its effects in law presently. For the time being I am on the question of the interpretation of the clause inserted in Exhibit 31. According to me, properly construed, the clause means that the husband should not raise the question of wife's chastity in any future litigation and irrespective of whether he succeeded in providing that allegation, the wife would be entitled to claim maintenance. In my opinion this has reference to the dispute already raised by the husband in the suit. This clause must be read in the context of the husband having agreed to withdraw the allegation made by him against the chastity of the wife. Although the husband agreed that he would not raise the question of her unchastity as a ground for invalidating the decree that may be passed on the basis of the award, the clause does not mean that the husband gave a charter to the wife to lead an immoral life in future and gave a blanket undertaking that whatever the behaviour of his wife, he would still continue to pay the amount of maintenance. Assuming for a moment that the interpretation sought to be put upon this clause by Mr. Walavalkar is correct and the Assistant Judges seems inclined to accept that interpretation, I have no doubt in my mind that this particular term is obnoxious to public policy and therefore will become void under Section 23 of the Indian Contract Act.

(5) I will now address myself to the main argument that was advanced by Mr. Walavalkar viz., that the wife's right to claim maintenance from the husband was based on the compromise between the parties. The husband had filed a suit for divorce and one of the grounds urged in support of the prayer was that the wife was living in adultery with one Baba Mahadu. There was also an allegation of desertion. It was common ground that the relations between the parties had been strained to such an extent that there was no possibility of reconciliation between the husband and wife. Therefore even if the husband's suit for dissolution of marriage eventually came to be thrown out in limine there was no possibility of the wife being received by the husband under his roof. That is the main consideration which appears to have induced the parties to agree to differ and to part company. Now the only right which the wife can claim as a consequence of the dissolution of the marriage was the right of permanent alimony. The husband having agreed to provide for permanent alimony, there was no difficulty for the wife agreeing to the dissolution of the marriage. It is not as if the wife was setting up some independent claim in the property of the husband or any other justifiable claim. The only claim in dispute between the parties was as to whether the marriage should be dissolved and if so what provisions should be made after dissolution. Mr. Walavalkar stressed the point that the dissolution was not taking place under the provisions of the Bombay Hindu Divorce Act but that the dissolution was taking place in accordance with the custom of the caste. It is true that there is no decree for divorce although a suit was filed under the provisions of the Bombay Hindu Divorce Act for a decree for divorce. It is also true that ultimately the husband withdrew the suit. Mr. Walavalkar however, conceded the position that all the documents must be read as a whole and must be treated as part of the same transaction. Agreement to divorce, the decision of the husband to withdraw the suit and reference of the dispute regarding the quantum of maintenance were parts of the same transaction and together from one whole transaction. The fact therefore that the divorce was not provided for by the decree is a matter of little consequence. Mr. Walavalkar suggested that the right of the wife to claim maintenance even after dissolution was based upon custom. Such a custom however, was never pleaded at any time before nor has Mr. Walavalkar been able to cite a single instance in which such custom has been judicially recognised. The only custom which has received judicial recognition is the custom of effecting divorce by mutual agreement between the two spouses. Under the ordinary Hindu Law neither the wife nor the husband is entitled to ask for dissolution of the marriage and therefore the question of allowing maintenance or alimony to the wife after the dissolution of the marriage could not possibly arise. For the first time the right to provide for permanent alimony had been provided for under Section 8 of the Bombay Hindu Divorce Act XXII of 1947. Section 8(1) provides:

'If the Court thinks fit, it may, at the time of passing any decree under this Act or subsequent thereto, on application made to it for the purpose, order that the husband shall, while the wife remains chaste and unmarried, secure to the wife, for her maintenance and support, if necessary, by a charge on the husband's property such gross sum or such monthly or periodical payment of money for a term not exceeding her life as, having regard to her own property, if any, her husband's property and the conduct of the parties, shall be deemed just.'

Sub-section 2 relates to the modification of the amount of maintenance in the light of the change of circumstances, Sub-section 3 is important and it runs thus:

'If the Court is satisfied that the wife in whose favour an order has been made under sub-section (1) or (2) has remarried or has not remained chaste, it shall vary or rescind the order.'

Sub-section (3) is modelled on the well known principle of Hindu Law viz:

'a wife, who leaves her home for purposes of adultery, and persists in following a vicious course of life, forfeits her right to maintenance even it is secured by a decree.'

(Section 556, Mulla's Hindu Law)

In my opinion the agreement which the spouses arrived at in the matter of providing permanent alimony to the wife, was based on the provisions of Section 8 of the Bombay Hindu Divorce Act. There was no other basis except the provisions of Section 8 for such a provision. Mr. Walavalkar contended that Section 8 could not form the basis of the agreement because otherwise the agreement would not have provided that the husband would continue to be liable for paying maintenance to his wife in spite of her future misconduct. As I have already pointed out I am not prepared to accept that construction upon the clause. The clause merely provides that the husband should not avail himself of the plea which he had raised in his suit for the purpose of invalidating the decree that may be obtained on the basis of the award. Even assuming that the parties wanted to deviate from the provisions of Section 8 and wanted to go further than what is provided therein, it does not follow that the liability for maintenance of the wife after dissolution can be based on a mere contract independently of the provisions of Section 8 of the Bombay Hindu Divorce Act. For one thing there must be consideration for the contract such as compromise of any independent dispute about property and secondly the agreement must not be opposed to public policy. It is not necessary to discuss this question any further in view of the construction that I have placed on the offending clause in the agreement (Exhibit 31). I therefore feel no hesitation in holding that the decree providing for the permanent alimony to the wife is based on the provisions of Section 8 of the Bombay Hindu Divorce Act. If that is so then it follows that that decree will always be subject to the provisions of sub-section (3). The words 'has not remained chaste' have reference to the future conduct of the wife. The idea is that the wife must continue to remain chaste and it is only so long as she continues to remain chaste that she is entitled to claim maintenance from her husband. The husband waived or condoned the particular instance of unchastity on which he had based his cause of action in suit No. 664 of 1952. In the present suit his allegation is 'that the wife is staying with Ramchandra Shingte as his kept mistress'. It is true that he has stated that she has been so living with Ramchandra Shingte for a year and half. Mr. Walavalkar pointed out that just two months have lapsed between the date of the award decree and the institution of the suit. The award decree was passed on 14th February 1955 and the suit was filed on 9th April 1955. The date of the award decree has hardly any relevance and we will have to refer to the date of the award or the date of the agreement between the parties. The date of the agreement as stated above was 11th March 1954 and the date of award was 12th March 1954. That means that about one year had lapsed between the date of agreement and the date of the institution of the suit. Now it may be that there is an element of exaggeration in the statement that the wife was living with Ramchandra Shingte for a year and half. It may be that she was living with him for a period of a year or 11 months. But that does not affect the principle to be applied to the present case. Undoubtedly this is a subsequent act and the husband is entitled to take advantage of the subsequent lapse on the part of his wife although he may have agreed to condone the previous lapses. The learned Assistant Judge was in error in thinking that the wife's right to claim maintenance after dissolution of the marriage flows from what he chooses to call a contract between the parties. The learned Judge has failed to consider that even assuming that the right was based on contract between the parties the clause being opposed to public policy was unenforceable and it is on that ground that that clause was not embodied in the award decree.

(6) In the view that I have taken above it is not necessary to discuss all the rulings that were cited by Mr. Walavalkar in support of his contentions. It will be sufficient to make a brief reference to the authorities on which he relied in support of his argument. In Parami Ramayya v. Mahadevi, 12 Bom LR 196, the Division Bench was considering the case of annuity bestowed upon his wife by the husband by will. It was proved that although the wife was leading unchaste life for some time after her husband's death and actually gave birth to an illegitimate child, she had abandoned that conduct and had returned to chastity. Justice Chandavarkar who delivered the judgment for the Division Bench held that although the word maintenance was used, as a matter of fact what was granted was an annuity by a bequest. He further pointed out that since the wife returned to a chaste life she was at least entitled to claim bare maintenance if not full maintenance. This decision was considered by Mr. Justice Madagavkar in a subsequent case reported in Kishanji Mohanlal v. Lakshmi, 33 Bom LR 510 : AIR 1931 Bom 286. In that case Mr. Justice Madagavkar distinguished the earlier case by pointing out that the decision therein is of no assistance as it merely decided that the bequest by the will by her husband could not be set aside on the ground of unchastity. Mr. Justice Madagavkar also pointed out that under the Hindu Law unchastity disentitles a widow from recovering maintenance, even though it is claimable under an agreement. Mr. Walavalkar relied upon another decision of the Division Bench reported in Shivlal Bhurabhai v Bai Sankli, 33 Bom LR 490 :AIR 1931 Bom 297. In that case the plaintiff was contending that she had a share in the family business. Disputes arose between herself on one side and her husband's brothers on the other. Husband's brothers executed a document in favour of the plaintiff agreeing to pay to her a maintenance of Rs. 175 per year. The agreement ran thus:

'There was a dispute between us regarding the joint business between your husband and us. As you are our brother's wife and as it seemed necessary to us to put an end to the said dispute. . . . . . . . . . . .we agree to pay you, till your life time Rs. 175.'

The brothers of the husband pleaded that the agreement could not be enforced since the plaintiff did not remain chaste. This argument was negatived and it was held that in so far as the claim for maintenance was based on an agreement the question of chastity of the plaintiff did not fall to be considered. I am unable to understand how the ratio laid down in this case assists Mr. Walavalkar in the argument that he is advancing. In Shivlal's case, 33 Bom LR 490 : AIR 1931 Bom 297, the plaintiff was laying claim to a share in the joint family business. This dispute was settled by compromise and she gave up her claim to a share in the business on her husband's brothers agreeing to pay her a fixed amount for her life time. There is no such dispute in the present case and the wife had no independent claim against her husband apart from the right of maintenance; the right of maintenance also after dissolution of marriage, does not flow from the provisions of ordinary Hindu Law but only from S. 8 of the Bombay Hindu Law. Mr. Walavalkar also relied upon the decision of the Madras High Court in Sathyabhama v. Kesavacharya, ILR 39 Mad 658 : AIR 1916 Mad 464. In that case there was an agreement between the widow and her deceased husband's brother for maintenance. The amount of maintenance was fixed. Since the date of the agreement the plaintiff widow was leading an immoral life and therefore the defendant contended that she was not entitled to claim maintenance. It was argued in favour of the defendant that the maintenance was secured by a deed of agreement. The learned Judges did not accept this contention and proceeded to observe:

'The instrument is only evidence of the amount which is payable as maintenance. The basis of the claim against the defendant being the duty to maintain, the fact that it is secured by a deed in writing is not a reason for holding that subsequent unchastity would not work a forfeiture.'

Instead of supporting Mr. Walavalkar this affords complete answer to the point of view which he is so strenuously trying to place before me.

(7) Mr. Walavalkar then contended that on the dictum laid down by Mr. Justice Chandavarkar in 12 Bom LR 196, it would not be correct to set aside the award decree in its entirely. He suggested that it is possible that the wife may return to a life of chastity and in case the decree is set aside she will lose her right irrevocably. Actually the Division Bench for which Justice Chandavarkar gave judgment was dealing with a case where it was proved that the wife who led an immoral life soon after the death of her husband had returned to chastity. The observations of Mr. Justice Chandavarkar must be read in the context of the facts of that case and cannot be extended to other circumstances. In Bhikubai Yeshwantrao v. Hariba Swalaram, 27 Bom LR 13: AIR 1925 Bom 153, relevant portion is at page 18 (of Bom LR) : (at p. 154 of AIR) - the Division Bench considered the effect of the observations of Mr. Justice Chandavarkar and observed:

'Therefore it is clear that if the incontinence of Bhikubai is proved, under this rule she would forfeit her right to be maintained by the co-parceners of her deceased husband. Mr. Thakor however, has relied upon the observations of Chandavarkar, J. In 12 Bom LR 196. I do not think that Chandavarkar, J., meant to question in any sense the well settled rule that the right of the widow to maintenance was dependent upon her continuing to be chaste, and that in case her incontinence was proved, she forfeited that right. The opinion of Apararka, referred to by Chandavarkar, J., cannot be read as modifying this view; and even if it means what Mr. Thakor contends it does mean, it cannot be accepted as against the opinions of Vijinanesvara and Nilakantha on this point and the uniform current of decisions. The opinion of Madhavacharya, referred to by Chandavarkar, J., does not in any sense support the contention that even an incontinent widow may retain her right to full maintenance if she has reverted to the path of morality. I am quite clear that the observations of Chandavarkar, J., are directed to the point of bare maintenance, as to which there was an apparent conflict between Honamma v. Timannabhat, ILR 1 Bom 559 and Valu v. Ganga, ILR 7 Bom 84. The lower Court was, therefore, right in disallowing the plaintiff's claim for maintenance generally. She claimed in this suit increased maintenance in spite of the agreement which was entered into between her and her husband's relations. But on account of her proved incontinence, that right is forfeited, and the defendants are entitled to refuse to maintain her.'

It is not necessary to discuss this aspect in greater detail because the right of the wife to claim maintenance after the dissolution of the marriage does not stand on the same footing as the right of a wife to claim maintenance during coverture or after the death of her husband. In the latter case there is room for repentance or locus paenitentiae. Right of maintenance is allowed to the wife on dissolution by statute and that right therefore must be kept confined within the four corners of the provisions of the statute. It will not be legitimate to go on amplifying the scope of that right by reference to general principles of Hindu Law as laid down in the cases referred to above. Once it is proved that the wife was has been leading an immoral life she forfeits her right to claim maintenance which is awarded to her at the time of the dissolution.

(8) The result is that the appeal succeeds. The decree of the lower appellate Court is set aside and the decree of the trial Court is restored.

(9) No order as to costs throughout.

(10) Appeal allowed.


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