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May Geraldine Duckworth Vs. George Francis Duckworth - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 235 of 1917
Judge
Reported inAIR1919Bom133; (1919)21BOMLR137; 50Ind.Cas.427
AppellantMay Geraldine Duckworth
RespondentGeorge Francis Duckworth
DispositionAppeal dismissed
Excerpt:
.....for payment of alimony and maintenance--civil court cannot attach salary in execution of decree--civil procedure code (act v of 1908), sections 4, 60 (2), order xxi, rule 48--repeal of section 60 (2) (b) by the repealing and amending act [x of 1914). ;in a suit for dissolution of marriage the defendant, who was a first class warrant officer of the british army, was ordered to pay permanent alimony to his wife (plaintiff) and maintenance to his children by hen later, the court having fixed the amount of rs. 63 as payable on each account, the plaintiff applied to the court for attachment of the defendant's salary and allowance, under the provisions of order xxi, rule 48, of the civil proccdure code, 1908. in the meanwhile, the commander-in-chief ordered, under section 145 of the army act..........this is an appeal from the district judge of ahmednagar who has dismissed an application under the civil procedure code for execution of an order for alimony in favour of the first wife and children of the respondent, duckworth. the respondent's marriage with the appellant was dissolved by the district judge of ahmednagar and the decree for dissolution was confirmed by the high court.2. the respondent is a first class warrant officer of the british army and as such he falls within the definition of 'soldier' in the army act, 44 & 45 vic. clause 58, section 90. section 145 of that act provides a special procedure when any order or decree is made for payment by a man, who is a soldier, of the cost of the maintenance of his wife or child. under the provisions of that section as amended by.....
Judgment:

Basil Scott, C.J.

1. This is an appeal from the District Judge of Ahmednagar who has dismissed an application under the Civil Procedure Code for execution of an order for alimony in favour of the first wife and children of the respondent, Duckworth. The respondent's marriage with the appellant was dissolved by the District Judge of Ahmednagar and the decree for dissolution was confirmed by the High Court.

2. The respondent is a First Class Warrant Officer of the British Army and as such he falls within the definition of 'soldier' in the Army Act, 44 & 45 Vic. Clause 58, Section 90. Section 145 of that Act provides a special procedure when any order or decree is made for payment by a man, who is a soldier, of the cost of the maintenance of his wife or child. Under the provisions of that section as amended by Army (Amendment) Act No. 2 of 1915, the Commander-in-Chief ordered that a particular sum should be deducted from the pay of the respondent for payment to the appellant. This sum is less than the monthly sum awarded by the order of the District Court. For the appellant it is contended that although Section 145 of the Army Act might once have prevailed over the provisions of the Civil Procedure Code owing to the express saving of the Army Act by Section 60 (2) (b) of the Code of 1908 the saving words have now been repealed by the Repealing and Amending Act, X of 1914, and therefore the appellant has a right to demand the application of the Code and get attachment of one moiety of the respondent's pay and allowances. In support of this contention the decision of a Bench of the Allahabad High Court in H. F. B. D. Hay v. Ram Ghandar I.L.R. (1917) . All. 308 is referred to. We are unable, however, to hold that the removal of the Sub-section (b) of Section 60 (2) from the Civil Procedure Code has the effect contended for. It was removed by a Repealing and Amending Act (X of 1914) on the ground that it, as well as the other Enactments referred to in the Second Schedule, were spent or had ceased to be in force otherwise than by express specific repeal or had by lapse of time or otherwise become unnecessary. The preparation of these Acts is part of the routine work of the Legislative Department in the expurgation of dead law from the Statute Book. They are not Amending Acts. The Sub-section may be taken to be dead law on the ground that it had 'expired' by the re-enactment since 1,908 of the Army Act, which thus became a later Enactment superseding and rendering unnecessary the saving Clause in the Civil Procedure Code: see Craies on Statute Law, Chapter V. Even if this were not so, the terms of Section 4 of the Civil Procedure Code and the maxim 'generalia specialibus non derogant' would compel us to apply the special rule of procedure provided by Section 145 of the Army Act in preference to the general provisions of the Code. We affirm the decree and dismiss the appeal. No order as to costs.

Macleod, J.

1. The respondent, an Assistant Surgeon in the Indian Medical Service, is a Gazetted Officer and therefore a public officer, so that prima facie his pay and allowances would be liable to attachment to the extent of one half under a. CO of the Civil Procedure Code. But he is also a First Class Warrant Officer and is therefore a 'soldier' as defined by Section 90 of the Army Act. Under Section 145 (2) of that Act an order has been made by the Commander-in-Chief that a sum of 1s. 6d. per diem, the maximum allowed, should be deducted from the respondent's pay in respect of the alimony and maintenance awarded to the appellant for herself and her three children by the District Judge, Ahmednagar. J I agree with the learned Chief Justice that we must hold that in this ease the Army Act prevails over the Civil Procedure Code. The respondent has married another woman before the period prescribed by the Indian Divorce Act expired. She is allowed Rs. 150 a month by the authorities out of the respondent's pay, while the wife and children whom ho has deserted get 1s. 6d. a day.


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