1. This is an application by the respondent husband in Matrimonial Suit No. 13 of 1935, for an order varying certain settlements in favour of his wife. The present applicant, Mr. Woodward, was i married to the opposite party on 16th March 1924. On 27th September 1927, Mr. Woodward took out three policies of insurance upon his life for Rs. 2000 each. By the terms of these policies, the sums were to be paid to the policy-holder on 15th September 1947, or, if the assured died before that date, the sums were to be paid upon proof of death, to the opposite party. On 31st January 1936, the opposite party obtained a decree nisi against the applicant, and on 7th August 1936 this decree was made absolute. The divorce proceedings were conducted in this Court; and it is clear that the wife obtained, her divorce upon the grounds of adultery and cruelty. Permanent alimony at the rate of Rs. 70 per mensem was awarded to the opposite party, but the custody of the two children of marriage, namely two boys, was given to the father, the present applicant.
2. The present application is made under Section 40, Divorce Act, and it is contended that, now that the marriage has been dissolved, it is only just and equitable that the wife should be deprived of any interest which she might have under these three policies of insurance. Mr. Chiene, who has appeared on behalf of the applicant, has stated before me that the main object of the applicant is to benefit his two infant children and that what he really wants is that the names of these two infant children should be substituted in two policies instead of the name of the wife, and that the husband should only have the absolute right in one of the policies. Mr. Saila Nath Mukerji, on behalf of the opposite party, Mrs. Woodward, has contended in the first place that these policies do not amount to post-nuptial settlements, or to settlements at all, and that in any event this is not a case in which a Court should make any order varying the settlements, if such they be.
3. Seotion 40, Divorce Act, is in these terms:
The High Court, after a decree absolute for dissolution of marriage...may enquire into the existence of the ante nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree and may make such orders with reference to the application of the whole or any portion of the property settled whether for the benefit of the husband, or the wife, or of the children (if any) of the marriage, or of both children and parents as to the Court seems fit. Provided that the Court shall not make any order for the benefit of the parents or either of thorn at the expense of the children.
4. The High Court in this case has made a decree absolute, dissolving the marriage of the parties, and consequently it can enquire into the existence of any post nuptial settlement, and can make orders with reference to the application of the whole or any portion of the settled property, whether such settlement be for the benefit of the husband or the wife. It is to be observed however that the Court is not bound to make any order. The power given to the Court is a discretionary one, and the orders, if any, which it makes are such orders as the Court deems fit in the circumstances of the case. Clearly this section gives the Court a discretion, though of course such discretion must be exercised judicially.
5. In the present case it is unnecessary for me to decide whether or not these policies amount to a settlement within the meaning of Section 40, Divorce Act. The question arose in Gulbenkian v. Gulbenkian (1927) L.R.P. 237. In that case policies similar in terms to the present policies were considered, and Hill, J. did vary the terms of the policies. He however did not expressly hold that the policies amounted to a settlement. He held that the policies were capable of one of two constructions, namely that the wife had no rights at all under the policies, or that she had an equitable interest as a prospective cestui que trust. He accordingly held that if she had no rights under the policies no harm could be done by striking her name out of them; but on the other hand, if she had a right, it could only be if the doou. merits in question amounted to a settlement; and consequently he made the variations prayed for. The case in Shamdas Gobindram v. Mt. Savitribai (1937) 24 A.I.R. Sind 181 is an authority to the effect that a policy such as the present policies amounts to a gift in favour of the wife. If the policies in question amount to a gift, then clearly they cannot come under the provisions of Section 40, Divorce Act. However I leave the matter open because I an satisfied that even if these policies do amount to post-nuptial settlements, this i not a case in which I should exercise mi discretion in favour of the husband.
6. As I have stated, the husband was found guilty of adultery and cruelty in the divorce proceedings. He is the guilty party and he is now asking the Court to deprive the innocent wife of a benefit which was given to her during marriage. It is open to a guilty party to make an application under Section 40; but in my view such applications should not readily be acceded to There may be special cases when it would be just and proper to make an order upon the application of a guilty party varying a settlement, but unless such special circumstances exist, the status quo should, in my opinion, remain undisturbed. This was dearly laid down in Thompson v. Thompson and Barras (1863) 32 L.J.P. & M. 39. In that case the Judge Ordinary observed, while discussing the then English section which corresponds to the present Section 40, Indian Divorce Act:
I think that it would be a gross perversion of the meaning of the Legislature if, at the prayer of an adulterous wife, the Court should deprive an innocent husband of any interest he takes under a settlement, even though it be for the benefit of the children of the marriage.
7. In that case, the applicant was the adulterous wife, but in my view the same principle must obtain where the application is made by the guilty husband. A grievous wrong has been done to the wife in this case, and in my view it is only just that she should be permitted to retain the benefits which she had received when she was the wife of the guilty husband. It is true that the husband is prepared in this case to give the children of the marriage the benefit of two of these policies, but as pointed out in Thompson v. Thompson and Barras (1863) 32 L.J.P. & M. 39, the Court should not deprive an innocent party of any interest which he takes under a settlement, even though it be for the benefit of the children of the marriage. The conduct of the husband in this case wrecked the married life of the opposite party, and in my view she should not be made to suffer any more. All that she has been given by the Court is alimony at the rate of Rs. 70 per mensem, and in my view she should not be deprived of the possible interest which she might obtain under these policies. The result therefore is that I see no ground for varying the terms of these settlements, if they be settlements; and that being so, this application fails and is dismissed with costs. I assess the lawyer's fee at Rs. 75.