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Hormusji M. Kalapesi Vs. Dinbai H. Kalapesi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 114 of 1953
Judge
Reported inAIR1955Bom413; (1955)57BOMLR791; ILR1955Bom856
ActsParsi Marriage and Divorce Act, 1930 - Sections 2(3), 32, 37, 40, 40(1) and 47; Code of Civil Procedure (CPC), 1908 - Sections 100 - Order 41, Rule 27; Bombay Hindu Divorce Act, 1947 - Sections 8; Matrimonial Causes Act, 1857 - Sections 32; Supreme Court of Judicature (Consolidation) Act, 1925
AppellantHormusji M. Kalapesi
RespondentDinbai H. Kalapesi
Appellant AdvocateM.M. Javeri and ;J.R. Vimadalal, Advs., i/b., Gagrat and Co.
Respondent AdvocateH.D. Banaji and ;D.P. Madan, Advs., i/b., Eastly, Lam and Co.
Excerpt:
parsi marriage and divorce act (iii of 1936) - section 40(1)--decree for divorce obtained by husband against wife on ground of desertion--application by wife for permanent alimony--maintainability of application.; the word 'decree' used in section 40(1) of the parsi marriage and divorce act, 1936, includes a decree obtained by the husband against his wife on the ground that she has deserted him. therefore under section 40(1) of the act it is open to the court to award alimony even to a guilty or defaulting wife in a decree obtained by the husband against the wife.; section 40(1) of the parsi marriage and divorce act, 1936, applies to all decrees which may be passed under this act. whether or not in respect of any particular decree relief by way of permanent alimony could be granted to.....gajendragadkar, j.1. this is an appeal by the husband against his wife and it has been preferred against the order passed by coyajee j. directing him to pay alimony to his wife at the rate of rs. 80 per month. the learned judge has also directed mat this amount should be paid from the date when the petition for alimony was presented, that is to say, front 18-9-1950. as to the costs, the learned judge has ordered that the husband should pay the costs and the wife's costs have been fixed at a lump sum of rs. 2,100. 2. in the present appeal, mr. javeri contends that the learned judge was in error in holding that the husband was liable to pay alimony to the wife and that he was also in error in fixing the amount at rs. 80 and in directing that the said amount should be paid from the date of.....
Judgment:

Gajendragadkar, J.

1. This is an appeal by the husband against his wife and it has been preferred against the order passed by Coyajee J. directing him to pay alimony to his wife at the rate of Rs. 80 per month. The learned Judge has also directed mat this amount should be paid from the date when the petition for alimony was presented, that is to say, front 18-9-1950. As to the costs, the learned Judge has ordered that the husband should pay the costs and the wife's costs have been fixed at a lump sum of Rs. 2,100.

2. In the present appeal, Mr. Javeri contends that the learned Judge was in error in holding that the husband was liable to pay alimony to the wife and that he was also in error in fixing the amount at Rs. 80 and in directing that the said amount should be paid from the date of the petition. The order of costs has also been challenged by Mr. Javeri.

3. This unfortunate litigation has had a very chequered career. Indeed the marriage between the parties has turned out to be a complete failure. The parties were married on 15-8-1945. The wife belonged to Nasik and the husband to Bombay. The husband is a doctor and is employed by the Tatas. It appears to have been a very short-lived period of married life between the two parties and it is fairly clear that both the parties found it difficult to adjust themselves to each other.

The husband is disposed to take care of his brothers and his sisters and he expected that his wife should join him in his household which consisted of the said relatives. The wife was unable, to appreciate the husband's affection for his relatives and that in substance is the genesis of the bickerings and disputes between the parties. Though the litigation between the parties has gone through a chequered career, it must be said in fairness to both the parties that no allegation has been made by either of them against the other in respect of character.

The predicament in which the husband found himself is not unusual. He felt that he owed some obligation to his relatives and he was apparently trying to adjust his obligations to his relatives with those to his wife, while the wife apparently felt that she would not be able to live her full personal life unless the husband and she alone built up a world of their own. In such circumstances, it is sometimes futile to try to apportion blame between the parties.

Even so, the unfortunate fact stared at both the parties to the present dispute that they were not able to pull on together for any length of time. It is unnecessary to set out the details in regard to the developments that took place in the married life of this couple. A girl was born of this marriage in August 1946. But even this happy event made no difference in the relationship between the husband and wife. The wife came and stayed with the husband for some time; then she went back to her parents ostensibly for the purpose of attending 'a navjot' ceremony in her family. She came back again, but that was with a view to return to her parents once again and she did leave the husband's protection sometime in May 1946 irrevocably.

On 21-6-1949, the wife sued the husband for divorce on the ground of desertion. The husband counter-claimed and prayed for divorce on the ground of his desertion by the wife. It appears that the hearing of this suit and counter-claim commenced before Bbagwati J. on 10-10-1949. The wife gave evidence and she examined nine witnesses. Her case was closed on 13-10-1949. On October 14, the husband stepped into the box and gave evidence-in-chief.

Then the learned counsel for the wife told Bhagwati J. that he did not propose to cross-examine the husband. Bhagwati J. then ruled that the failure of the wife to cross-examine the husband necessarily meant that the statements made by the husband on oath in the witness-box were not disputed by the wife and on this ruling the matter came to be decided,

The delegates were asked to answer the issues which had been framed for their decision and in the light of the answers given by the delegates, the learned Judge dismissed the wife's suit and gave a decree to the husband in terms of prayer (a) on the counter-claim. Even so, the learned Judge felt that, the proper order of costs would be that the defendant should pay the plaintiff's costs of the suit as well as the counter claim.

Thereafter the matter was taken before Bhagwati J. on 7-12-1949, for speaking to the minutes and Mr. Khambatta for the wife moved the learned Judge that he Should make an order reserving liberty to the wife to apply for permanent alimony and custody of the child. The learned Judge held that, since the suit preferred by the wife had been dismissed, there was no. question of reserving her claim for alimony.

In regard to the question of the custody of the child, however, the learned Judge ruled that the wife could not be and was not concluded by the disposal of her suit. It was open to her to resist the defendant's prayer for custody of the child whenever she thought necessary so to do. That is where the matters stood between the parties for some time.

On 19-4-1950, an application was preferred by the wife, for permanent alimony in the suit and the matter came before Bhagwati J. again. The learnedJudge held that no application for alimony could lie in the suit since the suit had been dismissed. He however observed that the plaintiff could, if so advised, apply in the counter-claim. That inevitably led to the next step which was taken by the plaintiff on 18-9-1950. She applied for permanent alimony in the counter-claim and it is this petition which has given rise to the present appeal.

4. This petition came before Shah J. on 24-10-1950. The learned Judge dismissed the petition on the ground that, since the petitioner's suit had been dismissed, all the reliefs which she had claimed in that suit must be deemed likewise to have been rejected. In his opinion, it was then not open to the petitioner to file an application for a relief which was inconsistent with the adjudication arrived at in her suit.

The learned Judge no doubt observed that, if an application had been made in the suit at the time when it was heard and disposed of by Bhagwati J. he had no doubt that the learned Judge would have considered the said application on the merits. This decision was challenged by the plaintiff by an appeal and on 2-7-1952 the appeal was allowed and the matter was sent back to the trial Court for disposal in accordance with law.

It was at this stage that this matter went before Coyajee J. and Coyajee J. made the order which has given rise to present appeal. Meanwhile, Gulshan, the only daughter from this marriage died on 3-10-1951, and the father of the plaintiff died on 20-3-1952. These broadly stated arc the material facts in regard to the present dispute.

5. Under the Parsi Marriage and Divorce Act, III of 1936, an 'appeal lies under Section 47 of the Act and the appeal lies on the ground that the decision under appeal is contrary to some law or usage having the force of law or on the ground that a substantial error or defect in the procedure has been committed and on no other ground. In other words, our powers in dealing with an appeal under Section 47 of this Act are analogous to our powers under Section 100 Civil P.C.

The provisions of Section 47 inevitably impose certain well-defined limitations on the exercise of appellate jurisdiction and it is within those limits that we must proceed to deal with the present appeal.

6. The first point which Mr. Javeri has raised before us on behalf of the appellant, however, is a pure point of law. Mr. Javeri contends that the order under appeal assumes that under Section 40 of the Act it is open to the Court to award alimony to a defaulting or guilty wife. According to Mr. Javeri, this view is based upon a misconstruction of Section 40 of the Act.

Before dealing with this point, it may be relevant to refer to some other provisions of this Act. Subsection (3) of Section 2 defines the expression 'to desert'. It says that to 'desert', together with its grammatical variations and cognate expressions, means to desert the other party to a marriage without reasonable cause and without the consent, or against the will, of such party.

This was a case of desertion and Mr. Javeri is entitled to rely upon the fact that the party claiming alimony has been divorced on the ground that she had deserted her husband, which means that she had left her husband without reasonable cause and without his consent or against his will and that the period of desertion satisfied the statutory requirement of Section 32, Sub-section (h), of the Act.

It had spread over three years and more. Section 37 of the Act allows a counter-claim to be made and, as I have already indicated, whilst the suit was first filed by the wife claiming divorce, the husband counter-claimed for divorce in the same suit and it is the counter-claim which was decreed and the suit was dismissed.

In other words, there can be no doubt whatever that it is decided between the parties to the present dispute that the wife had deserted the husband for three years and more and so the husband had obtained a decree for divorce against her. Section 40 provides that the Court may, if it shall think fit at the time of passing any decree under this Act or subsequently thereto on application made to it for the purpose, order that the husband shall, while the wife remains chaste and unmarried, pay alimony to her as mentioned in Clause (a) of Section 40, Sub-section (1).

While making an order for the payment of alimony, the Court shall have regard to the property of the wife, if any, her husband's ability and the conduct of the parties; and in making the order the Court must always consider the question as to what would be a just order to make in the circumstances of any given, case. Mr. Javeri concedes that the words used in Section 40, Sub-section (1), arc wide enough to include even a decree for divorce passed at the instance of a husband on the ground that his wife had deserted him.

But he suggests that, if we were to accept the literal construction of Section 40, Sub-section (1), it would lead to unreasonable and even absurd results and Mr. Javeri relics upon the rule of construction which piovicles that it would be open to the Court in a fit ease to put a narrow construction on words of general or wide import, if putting a liberal construction on the said words is likely to lead to absurd, unjust or unreasonable results. In support of this proposilion, Mr. Javeri has referred us to the statement of the law contained in Maxwell, 10th edn. (p. 229):

'Where the language of a statute , (says the learned author) 'in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be pub upon it which modifies the meaning of the words, and even the structure of the sentence.'

It would be noticed that this rule of construction can be invoked where the Court is satisfied that the contrary construction of the words would lead to manifest contradiction of the apparent purpose of the enactment or it would lead to absurdity, hardship or injustice which was not intended by the statute.

It is not very easy to accept Mr. Javeri's argument that granting alimony to a defaulting or guilty wife is necessarily inconsistent with the object of the statute or can be. reasonably regarded as absurd or unjust. Mr. Javeri has fairly conceded that under the English law, a guilty wife is not, merely by virtue of her guilt, excluded from the provision of alimony.

The measure of the alimony may vary and even its description may change. Tt may be called bare subsistence allowance and may not be described as alimony proper. But it seems to be the practice even under the English law not to deny the relief of alimony and not to force naked starvation on the wife merely because she happens to be the guilty party in the marriage.

Mr. Javeri, however, seeks to strengthen his argument by inviting us to consider the case where the Court may have passed a decree for restitution of conjugal rights and Mr. Javeri contends, that it would be unreasonable to permit a wife who, in defiance of the order passed by the Court granting restitution of conjugal rights to her husband, remains away from him and has the hardihood to apply for alimony under Section 40 of the Act.

But, in considering the question as to whether even in this hypothetical case an absurd reside would follow or nor, it would he necessary to remember that Section 40 does not impose an obligation on the Court to grant alimony to any claimant who moves the Court's jurisdiction in that behalf. Discretion is left in the Court in an absolute manner whether to grant or not the prayer for alimony made before a Court by any party.

Therefore, the obvious answer to the argument based on absurdity flowing from a liberal construction of Section 40 is that all absurd, unjust or unreasonable positions would be avoided by the Court exercising its discretion judiciously & properly. Wherever it appears to the Court that if a claim for alimony is awarded to a wife, it might lead to an absurd or unjust result, the Court has ample discretion to avoid the absurd or unreasonable result by refusing to grant the prayer for alimony made by the wife.

Therefore, in our opinion, it would not be possible to accept the argument that the very general words used in Section 40, Sub-section (1), should be limited artificially and should be confined only to decrees passed at the instance of the wife where a husband has been a defaulter in marital relations. Indeed, it seems to us very difficult to put that construction upon this clause as it stands. In doing so, it would really he necessary to re-draft the clause which is not and can never be the function of the Court.

Besides as I have just indicated, Legislature has deliberately given discretion to the Court in ample 'measure with a view to avoid unreasonable or unjust orders being passed under Section 40. The words, are very clear and they give jurisdiction to the Court to make an order for permanent alimony while passing any decree under this Act or subsequently thereto. If Legislature had intended to confine the right to claim alimony only to wives who were not guilty, Legislature could have easily used appropriate words in that behalf in Section 40, Subsection (1)

On the construction of Section 40, Sub-section (1), therefore, we are disposed to take the view that, as the words stand, this sub-section applies to all decrees which may be passed under this Art, Whether or not in respect of any particular decree relief by way of permanent alimony could be granted to the guilty wife is a matter to be considered on the merits by the Court that is moved under Section 40, Sub-section (1).

7. Incidentally, in considering this point, it may perhaps be relevant to ask oneself whether it would have been necessary to say that the Court should grant alimony 'if it shall think fit' at all in case the section really meant what Mr. Javeri suggests it means.

If Legislature had intended that only the innocent wife, who has been compelled to obtain a decree against her guilty husband, was entitled to apply under Section 40, Sub-section (1), then normally it is difficult to understand how it would Still be necessary to consider whether the claim made by such an innocent wife deserves to be granted or not.

The fact that the Court is asked to consider in every case whether it would be fit to pass an order for alimony or not itself postulates that, within the meaning of Section 40, Sub-section (!), some decrees may fall in respect of which the question of the propriety of making a grant as to alimony would have to be seriously considered.

Therefore, in our opinion, this clause coupled with the wide words in which decrees are referred to in Section 40, Sub-section (1), leads irresistibly to the conclusion that in theory and on principle Section 40, Sub-section (1), applies to all decrees that may be passed under this Act.

8. It may be relevant to refer to a corresponding provision in tbe Bombay Hindu Divorce Act 22 of 1947. Section 8 of this Act has been enacted in substantially similar terms as those which have been employed by the Legislature in enacting Section 47 of the Parsi Marriage and Divorce Act. So far as we are aware, it has been the consistent practice of this Court to entertain applications for alimony even from defaulting or guilty wives and to deal with them on the merits.

An application made for alimony has, so far as we are aware, never been thrown out on the preliminary ground that the said application has been made by a guilty wife. Indeed, that appears to be the position even under the English law. Latey on Divorce observes that the Court has an absolute discretion on or after decree 'nisi' to order a husband to provide for a guilty wife. Some decision were cited before Coyajee J. and they have been cited before us by Mr. Javeri. It would, therefore, be necessary to mention some of those decisions very briefly.

9. In -- 'Ashcroft v. Ashcroft', 1902 270, it has been observed that there is no rule of practice that a wife against whom a decree 'nisi' for dissolution of marriage is pronounced must show special circumstances to entitle her to an order 'under Section 32 of the Matrimonial Causes Act, 1857, that the decree shall not be made absolute except upon the condition of the husband securing a provision for her support. The Court has an absolute discretion vested in it by the section, to be exercised according to the circumstances of each case.

It was also added that the Court would order the husband to secure a provision for his guilty wife, even though his own conduct has been unimpeachable, if the wife is proved to be entirely without means of support and unable through ill-health to earn her own living. Vaughan-Williams L.J., who delivered the judgment of the Bench, has given an interesting account as to the important pronouncements on the point of English practice in this matter, (p. 275):

'It is said', observed the learned Judge:' that the practice is correctly stated by Mr. Inder-wick in his argument in -- 'Robertson v. Robertson', (1883) 8 PD 94, where he says that: The practice under the Divorce Act in this respect has not been similar to that of the House of Lords under the old law. Up to this time permanent alimony for a guilty wife has not been ordered except with the consent of the husband, or under special circumstances'. (This was very strongly dissented from by Jessel M.R. who said):

'I am sorry to hear it. I am not giving a final opinion, but it appears to me that Section 32 was intended to give the Court a discretion which was to be exercised according to the circumstances of each case, and that it was not intended that a guilty wife should be turned out into the streets to starve'.' Williams L.J. then referred to the observations made by Lindley L.J. and these observations showed that the learned Judge refused to give any sanction to what Mr. Inderwick stated to have been the practice of the Court up to that time. This is what Lindley L.J. said (p. 97):

'The question whether what we understand to be the ordinary practice in the Divorce Court is right or wrong is to be considered as left an open question.'

On the merits, however, the learned Judge was not prepared to dissent from the conclusion of the President in that particular case. Therefore, according to this judgment, it would be safe to conclude that under the corresponding provision of the English Act, i.e. Section 32, it was held that the Court had full and absolute discretion to deal with the merits of each case and that it was not usual to throw out the case on the preliminary ground that the claim for alimony had been made by a guilty wife.

10. In Sydenham v. Sydenham and Illing-worth 1949 2 All ER 196. Section 190 of the Supreme Court of Judicature (Consolidation) Act, 1925, which deals with this subject, came to be considered. It was a case where the husband had obtained a decree of divorce against his wife on account of adultery. Denning L.J. in his judgment has considered the question as to whether the wife, found to be guilty of adultery, could be heard to claim alimony.

The argument was that the judgment pronounced by the Matrimonial Court conclusively showed that the wife was guilty and her claim for alimony was resisted on that ground. The learned Judge was apparently not impressed by the argument that the matrimonial order is final because he observed that there was no hiding the fact that the form of the decree was often no real guide to the conduct of the parties or to the merits of a claim for maintenance, Considering the question in a human way, the learn-ed Judge has further added that he had himself tried several cases where a husband left his wife, and unknown to her, committed adultery.

Thereupon, the wife in her loneliness herself committed adultery. Then the husband proceeded to obtain a divorce against her for that adultery. The wife knew that she was guilty and so she did not defend the case, but she did not know that he was equally, and even more, guilty than she was.

The learned Judge, therefore, thought that in cases of adultery, where both the husband and wife may have committed acts of adultery, but the husband is quicker in obtaining any relief against his wife on the ground that she had committed adultery, it would not be fair every time to challenge the claim of the wife for alimony on the ground that she is a guilty wife.

11. The same point came to be considered in-- Trestain v. Trestain', 1950 198, where ithas been observed by Denning L.J. that there isnothing in the relevant statute to show that a wife against whom a decree has been made cannot be granted maintenance, but the Court in awarding maintenance must have regard to the conduct of the parties.

The learned Judge has also added that, if on investigation of the facts, it appears that the conduct of the wife is much less blameworthy than that of the husband, then, even though a decree has been pronounced against her, she is entitled to ask for maintenance as fully as if a decree had been pronounced in her favour.

12. Mr. Javeri contends that Coyajee J. was in error in applying these principles to the case before him and it must be conceded that there is considerable force in Mr. Javeri's argument. The observations which I have cited above tend to show that in cases where the husband obtains a decree against his wife on the ground of adultery, the learned Judges were disposed to take the view that there were two sides to the picture' and that the full and correct view may not necessarily be reflected in the order for divorce which the husband may have obtained.

That is one principle reason why, where a claim for alimony is made by a wife who has been found guilty of adultery. Courts were not inclined to regard the order passed by Matrimonial Courts as being absolutely final. That, however, cannot ba said in the present case.

Whatever may have been the reasons which were responsible for the abrupt decision by the wife not to cross-examine her husband, it must be taken to be settled finally between the parties that the wife deserted the husband and that a decree for divorce was passed against her on that ground. It must also be taken to be settled, and finally, between the parties that the wife's claim that the husband had deserted her had been dismissed.

Therefore, thre is some force in Mr. Javeri's argument that the analogy sought to be drawn from the English decisions on which reliance was placed before Coyajee J. by the learned counsel for the wife should be drawn within limitations. Those observations cannot wholesale be applied to the facts in the present case. That, however, does not make any difference to our decision because, on a fair and reasonable construction of Section 40, Sub-section (1), we have come to the conclusion that the word 'decree' used in that sub-section includes even a decree obtained' by the husband against his wife on the ground that she has deserted him.

13. That takes us to the next question as to whether the learned Judge was right in granting to the wife alimony at the rate of Rs. 80 per month. For determining the amount of alimony, the first thing to consider is the income of the husband. On this point at the hearing of the present inquiry before Coyajee J., Mr. Pardiwala for the wife stated that he did not propose to lead any evidence as regards the income of the plaintiff to the counter-claim and that he would rest content with the statement of income as set out in his affidavit.

According to the affidavit, the nett income of the husband is Rs. 593 per' month. There has been some argument at the bar before us as to whether: it is open to the husband to deduct from his gross income his contribution to the provident hind. This matter was argued even before Coyajee J., Mr. Justice Coyajee did not think it necessary to determine the exact amount of income of the husband and so he put it either at Rs. 640 per month or, as he has said in another place of his judgment, somewhere at Rs. 700 per month.

Coyajee J. did not definitely determine the amount because presumably he must have thought that even if the income was put as low as Rs. 500 a month, the amount of Rs. 80 by way of alimony would be justified. We will assume for the purpose of dealing with the appeal that the nett income of the husband is in the neighbourhood of Rs. 600. It is on this basis that we will proceed to consider the question as to the amount which should be directed to be paid by the husband to the wife as alimony.

14. No doubt Mr. Javeri attempted to argue that even if the section was liberally construed, it would still be necessary for us to decide whether a deserting wife should be given the right to claim alimony in the present case. If desertion by itself does not disentitle the wife from making a claim for alimony under Section 40, Sub-section (1), we do not see any further aggravating circumstance which should have that consequence in the present proceedings

It may be that in a given case desertion by the wife may be so grossly wilful that a Court may feel that a wife who has been guilty of such gross and wilful desertion should not be given alimony against her husband. We do not think it would be proper to characterise the conduct of the wife in those terms in the present case. I have tried to give an objective genesis of the dispute between the parties at the commencement of my judgment and it seems to me that it would be futile to apportion blame as between the two parties before us.

Whereas the husband who feels affectionate towards his relatives and wants to look after them cannot be blamed for expecting his wife to join him in that effort, the wife who probably did not receive full emotional satisfaction of building her own home under those circumstances, cannot also be blamed very much. It is an unfortunate situation and both the victims undoubtedly deserve sympathy. In regard to both of them, it may be said with justification that each one of them is more sinned against than sinning.

If that be the true position of the unfortunate relations between the parties before us, it would not be fair to accede to the argument that desertion by the wife has taken place in circumstances which aggravate the character of that desertion. Therefore, we are not impressed by the plea made before us by Mr. Javeri that, having regard to the conduct of the wife in the present proceedings, we should not entertain her application for alimony at all.

15. That takes us to the question of the quantum of alimony and on this point Mr. Javeri has very strongly pressed upon us to consider whether it would be reasonable to award Rs. 80 to the wife having regard to the facts which have been brought on the record of this case. In dealing with this point, it would be necessary to bear in mind the limits of our jurisdiction under Section 47 of the Act.

We can interfere with the order passed by the learned Judge only if we are satisfied that the order impugned is contrary to law. Mr. Javeri argues that the order fixing the amount of alimony at Rs. 80 per month is contrary to law inasmuch as this order is inconsistent with some of the findings made by the learned Judge himself. We think that there is some force in this contention.

When the claim was agitated before the learned Judge on the merits, the wife was asked whether she had valued the jewellery in her possession and if yes what the valuation was. The wife refused to give any valuation of the property even approximately and that gave rise to an argument before the learned Judge. For the wife naturally the value was sought to be understated and for the husband naturally again the value was sought to be overstated.

The learned Judge was not impressed by the arguments urged on behalf of the wife and he has observed in his judgment that the jewellery, of which the wife admittedly was in possession, must be worth several thousand rupees. The husband himself had valued the jewellery in 1950 in his affidavit at Rs. 5,788 and the learned Judge probably thought that since 1950 the value of jewellery must have appreciated and so he held that the value must be more than Rs. 5,788 and described it as 'several thousand'.

Mr. Javeri argues that it does not appear that this aspect of the matter was taken into account by the learned Judge when he proceeded to fix the amount of alimony. The second point which Mr. Javeri has raised before us is about the conduct of the wife in giving up her post as a nurse which she was holding for some time in a hospital at Bombay. She took the post sometime in January 1952 and she resigned it on 29-5-1952.

Her case was that she had to resign for reason of health and it may be said in her favour that the resignation was given by her at a time when no malicious motive could be attributed to her. Even so, the learned Judge was not prepared to place any credence on the testimony of the wife on this point and Mr. Javeri says, that itself should have created a difficulty against the wife getting alimony in the present proceedings.

In determining the question as to what would be proper amount to award by way of alimony to the wife in the present case, we cannot forget that it is a claim made by a defaulting and guilty wife and that has also been one of the arguments urged before us by Mr. Javeri. When the Court considers the claim for maintenance by an innocent wife, the Court would naturally be justified in adopting a liberal attitude in determining the quantum.

Whenever the Court considers a claim for alimony made by a guilty wife, it would be unreasonable to adopt the same liberal attitude in determining the amount of alimony. The approach has to be very much different and Mr. Javeri argues that his client was entitled to urge before the learned Judge that the wife should have stuck on to thepost of a nurse which she had secured in a local hospital in Bombay.

The learned Judge has found that she gave up the post without any reasonable justification, and if the wife unreasonably gave up her post which she held and which brought about Rs. 85 to her per month, that is a factor which should have been considered by the learned Judge. In our opinion, there is some force even in this contention.

16. There is another point to which Mr. Javeri has invited our attention by way of an additional affidavit and accompanying documents filed before us. It appears that, before his death, the father of the wife had left a will and the wife was asked about the extent of the estate which she was to get under this will. She stated that she was unable to give any definite information because she was not fully aware of the details of the will.

That appears to be the effect of her evidence; and she suggested that at his death her father had left an overdraft account and so there was not much chance of her obtaining a substantial bequest under the will of her father. On this point again the learned Judge does not appear to have been very much satisfied with the evidence given by the wife.

After the matter was disposed of by the learned Judge in November 1954, the will has been probated and Mr. Javeri requested us to exercise our jurisdiction under Order XLI, Rule 27, and to allow him to produce the will before the Court. Mr. Banaji objected to the production of this additional evidence in appeal. It is true that our jurisdiction undo Order XLI, Rule 27, is always sparingly exercised and it is to be exercised only if we are satisfied that for doing justice between the parties we require the help of additional evidence.

In the present case we felt that it was necessary that we should know what the will contained before we decided the quantum of alimony to be allowed to the wife. It may also be borne in mind that the will came to the Probate Court and a probate was obtained subsequent to the decision of Coyajee J. The will had been left in a closed packet with the District Registrar and it was only after the executor of the will produced it before the Court of Probate that it saw the light of the day.

Therefore, we have allowed Mr. Javeri to produce this will before us and this will shows that the wife has been given a house at Surat which is valued at Rs. 3,912. She has also been given a right of residence in the bungalow at Nasik. In other wards, the wife is obviously in possession of the Surat property, the value of which is in the neighbourhood of Rs. 4,000. Mr. Javeri says that even this point mast he taken into account in fixing the quantum of alimony.

As I have just indicated, though normally we should have regarded the determination of the amount of alimony by the learned Judge as amounting to a question of fact, we think that it is necessary to reconsider the matter in view of the fact that some additional evidence has been produced before us and in view of the fact that we have been impressed by the argument that in determining the amount of alimony the learned Judge has not, with respect, given due effect to his own findings on two important points. ' They are, the conduct of the wife in giving up the job without a justifiable reason and the value of the jewellery of which the wife was admittedly in possession.

17. We have, therefore, carefully considered the question as to the amount of alimony and we have come to the conclusion that it would be just to direct that the husband should pay the wife alimony at the rate of Rs. 60 per month.

18. That leaves two more questions to be considered. Mr. Javeri argues that the learned Judge was in error in directing that this amount of alimony should be paid to the wife from the date of her petition, i.e., 18-9-1950. Mr. Javeri contends that the learned Judge should not have passed this order in favour of a guilty wife. It is possible that two views can be taken on this question.

But we are not satisfied that Mr. Javeri would be justified in asking us to interfere with this order on the ground that this order is contrary to law. The normal rule in such cases is to allow alimony from the date of the petition. It may be that another Judge may have taken the view that in the case of a deserting wife, that rule may not be adhered to.

But just because two views are likely to be taken on this question, it does not follow that the Court of appeal should for that reason interfere with the order passed by the learned trial Judge. That is why we do not think that it is open to us to interfere with this order passed by Coyajee J.

19. The last point which has been urged by Mr. Javeri is in respect of the taxation. It is perfectly true that Mr. Javeri's client has been hard-pressed by the costs of this litigation. But that is unfortunately incidental to matrimonial litigation which is fought on the Original Side. It may be that under the normal rules the taxed costs would have been less. But the learned Judge held that this matter raised some important points of law, that it had to be argued before him at length and that, in his opinion, justified the awarding of costs On a higher scale.

We are told that the matter lasted before the learned Judge for full 13 hours. If on these facts the learned Judge came to the conclusion, that his discretion had to be exercised in the mutter of fixing costs and that the ends of justice required that the costs should he taxed at Rs. 2,100, we do not see how we can interfere with that order having regard to our limited powers under Section 47 of the Act.

20 In the result, the order passed by the learned Judge is modified and the amount of alimony directed to be paid to the wife is changed from Rs. 80 per month to Rs. 60 per month. The rest of the order is confirmed, Since the appeal fails in substance, the appellant must pay the costs of the respondent. Liberty to Mr. Banaji's client to withdraw from the amount deposited by the husband in Court at the rate of Rs. 60 per month as also the amount of costs.

21. The cross-objections now remain to be considered. In view of the fact that we have come to the conclusion that the amount of alimony should be fixed at Rs. 60 per month rather than at Rs. 80 per month, the cross-object inns obviously must fail. They are accordingly dismissed. There would be no order as to costs on the cross-objections.

22. Order accordingly.


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