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Nanigopal Chakravarty Vs. Renubala Chakravarty - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 42 of 1963
Judge
Reported inAIR1965Ori154
ActsHindu Marriage Act, 1955 - Sections 25(3)
AppellantNanigopal Chakravarty
RespondentRenubala Chakravarty
Appellant AdvocateL.S. Misra and ;S.K. Kundu, Advs.
Respondent AdvocateS.S. Basu, Adv.
DispositionAppeal dismissed
Cases ReferredH. C. D. Goodhall v. Mrs. H. A. Goodhall
Excerpt:
.....under sub-section (1), it may vary, modify or rescind any such order in such manner as it may deem just. on the aforesaid principles i am satisfied that the learned district judge's view is correct......on the ground that she being a brahmin would not be able to remarry. in the judgment the learned district judge did not give the basis as to how he granted a gross sum of rs. 3000/- towards permanent alimony. admittedly the appellant has not made any payment in satisfaction ot the decree. the respondent started an execution case which is pending. she remarried in january 1961 to one chittaranjan goswami, on 8-9-1962 the appellant filed an application with a prayer that the decree dated 8-4-1960 be rescinded or modified under section 25 of the hindu marriage act, 1955 (hereinafter referred to as the act). the respondent filed an objection. the learned district judge found that the story of remarriage was true, but dismissed the application on the ground that the decree awarding a gross.....
Judgment:

G.K. Misra, J.

1. The respondent (wife) obtained a decree for divorce against the appellant (husband) on 8-4-1960. The decree declared that the wife and the husband stood divorced from that day and the appellant was to pay to the respondent a sum of Rs. 3000/- within a month from that day failing which she was to recover the amount by execution. She had claimed a gross sum towards permanent alimony on the ground that she being a Brahmin would not be able to remarry. In the judgment the learned District Judge did not give the basis as to how he granted a gross sum of Rs. 3000/- towards permanent alimony. Admittedly the appellant has not made any payment in satisfaction ot the decree. The respondent started an execution case which is pending. She remarried in January 1961 to one Chittaranjan Goswami, On 8-9-1962 the appellant filed an application with a prayer that the decree dated 8-4-1960 be rescinded or modified under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). The respondent filed an objection. The learned District Judge found that the story of remarriage was true, but dismissed the application on the ground that the decree awarding a gross sum of Rs. 3000/- could not be rescinded as it was payable at a time a month after the decree. Against the order of the learned District Judge dated 3-4-1963 dismissing the petition, this appeal has been filed. The view of the learned District Judge is assailed as being contrary to law.

2. Section 15 of the Act prescribes--

'When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again :

Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the Court of the first instance.'

The remarriage of the respondent with her second husband in January 1961 was within one year from the date of the decree and as such the second marriage is not lawful. Thus though in fact there was a remarriage, it cannot have any recognition in law being hit by the proviso to Section 15. This aspect of the matter was not presented before the learned District Judge. This finding, however, would not dispose of the application as it is maintainable under Section 25(3) of the Act, if the wife has not remained chaste. In view of the admitted position that she had a second marriage, she cannot be said to have remained chaste. The maintainability of the application for rescission of the decree under Section 25(3) must therefore be closely examined.

3. Section 25 of the Act enacts--

25. (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respoadent.

(2) If the Court is satisfied that there is a change in trie circumstances of either party at any time after it has made an order under Sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just

(3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order.'

Under Sub-section (1) the District Judge was quite competent to award a gross sum by way of permanent alimony and maintenance. The binding character of the decree has not been assailed.

The only point for consideration is whether, in the circumstances of this case, the gross sum of Rs. 3000/- decreed can be rescinded under Sub-section (3). Mr. Basu contends that the gross sum payable under the decree within one month From that day had already accrued due long before the remarriage in respect of which an execution case is pending. The judgment of the learned District Judge dated 30-3-60 does not furnish the basis as to how the gross sum of Rs. 3000 was determined. The quantum being indivisible, it is not open to the Court to rescind any part of it. It is, on the other hand, contended by Mr. Misra that the gross sum of Rs. 3000/- was awarded as the wife represented that she being a Brahmin would not be able to remarry, and that once remarriage has taken place, a portion of this amount should be remitted.

4. Under Section 25(1), a gross sum can be decreed. In terms, Sub-section (3) does not restrict the powers of the Court to rescind only the payment of monthly and periodical sums. Sub-section (3) has been widely couched and prima facie it might be made applicable to rescission of an order awarding a gross sum. Though the matter is not free from difficulty on account of the inartistic language in which the section has been worded and the absence of any authority on the point, on a close scrutiny, the view that a decree awarding gross sum cannot be rescinded appears to be more reasonable. The difference in wording in Sub-sections (2) and (3) is somewhat significant. Under Sub-section (2), if the Court is satisfied that there is a change in the circumstances of either party at any time after the order has been made under Sub-section (1), it may vary, modify or rescind any such order in such manner as it may deem just. To illustrate, if the husband had higher income at the time of the decree, but he becomes indigent later on and is not in a position to pay the sums towards maintenance, the Court may step in to reduce the amount. Similarly if the wife gets an employment and earns a substantial income sufficient to maintain herself, the Court may rescind the order or decree granting maintenance. Thus in case of change in circumstances, the Court has been given ample power either to vary, modify or rescind the order.

Under Sub-section (3), however the Gourthas been given the power only to rescind. The word 'rescind' means to annul or cancel. If the conditions prescribed under Sub-section (3) exist, that is, if a party in whose favour the order has been made remarries, or, if such a party is the wife and she does not remain chaste, or, if such a party is the husband and he has had sexual intercourse with any woman outside wedlock, the Court shall rescind the order. In case of payment of monthly or periodical sums, the Court can rescind :he order as such payments relate to future payments only. Conferring power on the Court to annul future payments after accrual of cause of action as prescribed in Sub-section (3) appears to be reasonable. The same argument does not, however, apply to rescission of an order granting gross sum, which would amount to annulment of a past liability and not a future one. Such annulment also would lead to an absurdity inasmuch as the past dues accruing in favour of the wife in between the decree and the remarriage cannot be rescinded under the sub-section as such liability constituted an integral part of the gross sum decreed. The past and future liabilities constituting the gross sum are not severable. Rescission of such an indivisible liability cannot therefore be countenanced. It is for this reason, in Blanche Somerset v. Charles George Bleach, AIR 1915 Bom 50 under the proviso to Section 37 of the Indian Divorce Act, it was held by Hayward J. that where gross sum of money is given to the wife, that is paid absolutely.

Apart from the view that in principle the order awarding a gross sum cannot be rescinded, in this also no evidence has been led as to how the gross sum is to be divided so as to fix the quantum payable to the wife (respondent) from 8-4-1960 (the date of the decree for divorce till January 1961) when she remarried. H. C. D. Goodhall v. Mrs. H. A. Goodhall, AIR 1938 All 121 is not a direct authority on the question. In that case, the alimony ordered to be paid to the wife was a monthly sum of Rs. 50/-. After her remarriage in May 1937, an application was filed to rescind the arrears accruing due under the decree. Harris J. (as he then was) held that the High Court had no jurisdiction to annul the amount already accrued due under the decree. Though the facts of that case bear no analogy to those of the present case, the principle enunciated lends support to the theory that the order of rescission cannot extend to past liabilities accrued under the decree and the power of discharge, modification or annulment must be exercised only with reference to future payments.

As I have already said, the case is not free from difficulty as there is no direct authority on the point. On the aforesaid principles I am satisfied that the learned District Judge's view is correct.

5. In the result, the appeal fails and is-dismissed; but in the circumstances, parties to bear their own costs throughout.


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