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T.H. Chandler Vs. Mrs. A. Chandler - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1939All696
AppellantT.H. Chandler
RespondentMrs. A. Chandler
Excerpt:
- .....a fixed sum for her maintenance by the divorced husband, and in such order there is no dum sola et casta clause inserted, the court cannot vary the order as made where the divorced husband alleges that his wife has been guilty of adultery. the dum sola et casta clause must be inserted in the order; it will never be inferred. the court observed:the argument of the respondent's counsel really amounts to this, that in every order of the present kind which is made a dum sola et casta clause ought to be included. if, in fact, such a clause is inserted, it is expressed; if by any chance it is not inserted, it ought to be inferred. i cannot think that such a contention is right. when an order of this kind is made, all the circumstances of the case are considered, and it is then determined,.....
Judgment:

Collister, J.

1. These are two cross-petitions. One is by Annie Chandler praying that the alimony which was allowed to her by this Court be increased from Rs. 12.8-0 per mensem to Rs. 20 per mensem, and the other is by Thomas Henry Chandler praying that the order of alimony be discharged or modified on the ground of unchastity on the part of Annie Chandler. Annie Chandler petitioned for dissolution of her marriage or, in the alternative, for judicial separation, in the Court of the District Judge of Cawnpore. The District Judge, on 27th March 1926, dismissed the petition for dissolution of marriage, but granted a decree for judicial separation and directed the respondent to pay his wife Rupees 10 per mensem as maintenance. There was an appeal by the petitioner, i.e. Annie Chandler, to this Court, and on 11th April 1927 the appeal was allowed and a decree nisi was granted. In the course of their order the learned Judges said:

By Section 36 our powers of granting alimony are limited, until the decree is made absolute to the sum of Rs. 10, which is the sum awarded by the Court below. We have no power under Section 87 to grant permanent alimony until the decree is made absolute, which cannot happen until after the expiration of six months. But in order to save the parties further expenditure we express the decided opinion that when the decree is made absolute, there are no grounds upon which the Court ought to increase the permanent alimony to a sum larger than that which has been fixed for the alimony pendente lite.

2. At the end of their order the learned Judges said that the payment of Rs. 10 a month would only continue while the petitioner remained chaste and unmarried. The decree nisi was made absolute by another Bench of this Court on 5th July 1929; The alimony was fixed at Rs. 12-8-0 per mensem, being Rs. 2-8-0 in excess of the amount which had been fixed pendente lite; and the order of this Court confirming the decree nisi contained no clause to the effect that this alimony should only be paid during chastity. It is obvious that the observations of the Bench which passed the decree nisi to the effect that alimony could only be paid so long as the petitioner remained chaste and unmarried could have no effect beyond the period of interim alimony and would not be binding on the Bench which confirmed the decree nisi and which passed orders as regards permanent alimony and as we have shown, the order under which the decree nisi was made absolute contains no 'dum sola et casta' clause. In Collins v. Collins (1910) 103 L.T. 80, it was held that where, upon a decree absolute being obtained by a wife, on a petition for divorce against her husband, an order is made for the payment of a fixed sum for her maintenance by the divorced husband, and in such order there is no dum sola et casta clause inserted, the Court cannot vary the order as made where the divorced husband alleges that his wife has been guilty of adultery. The dum sola et casta clause must be inserted in the order; it will never be inferred. The Court observed:

The argument of the respondent's counsel really amounts to this, that in every order of the present kind which is made a dum sola et casta clause ought to be included. If, in fact, such a clause is inserted, it is expressed; if by any chance it is not inserted, it ought to be inferred. I cannot think that such a contention is right. When an order of this kind is made, all the circumstances of the case are considered, and it is then determined, subject to any appeal that may be made, whether the dum sola et casta clause should be inserted : and I think that there is no more reason now for varying that order than for saying that an order which does not contain the clause ought by implication to be held to contain it. It is not suggested that the means of the husband have been altered. The only question before me is the alleged misconduct of the wife. About that I know nothing and say nothing, and in any case it is not enough to entitle the present motion to succeed.

3. This is authority for the proposition that if there is no dum sola et casta clause in the order granting alimony to the wife, that order should not be varied or discharged on the ground of subsequent un-chastity. In the present case, as we have already shown, there was no such clause or condition in the order of 5th July 1929, under which the decree nisi was made absolute and the amount of permanent alimony was settled. In the circumstances, the petition of Thomas Henry Chandler fails and is dismissed with costs. As regards the application of Annie Chandler for enhancement of the amount of alimony, there is an affidavit by Thomas Henry Chandler containing an averment to the effect that he has been discharged by the company in whose service he was; and in view of this affidavit learned Counsel on behalf of Annie Chandler states that he does not press his application. In the circumstances this application also is dismissed with costs.


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