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Arthur Malcolm Lloyd Vs. Kathleen Lloyd - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1921Mad230; (1921)41MLJ269
AppellantArthur Malcolm Lloyd
RespondentKathleen Lloyd
Cases ReferredRobertson v. Robertson
Excerpt:
- - 'the words 'on' or 'upon' (it has been decided) may either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require, with reference to the context and the subject matter of the enactment. that would clearly be made an unreasonable time before ;or can she say 'twenty years ago, your lordship gave me a decree for dissolution of marriage, now will you make an order for permanent maintenance' and say nothing more?.....first question is, what is the meaning of on any decree for dissolution? i was inclined at one time to think that it meant at the same time as the decree wa's made, or as it could not precede it, at any rate immediately following upon it. looking however at the decision of sir james hannen in bradley v. bradley and sidney v. sidney ((1878) 3 p.d. 471867) 36 l.j. (p & m) 733 in the house of lords which he follows, and also rcfbertson v. robertson (1883) 8 p.d. 94, it seems to me that what sir james hannen calls a more elastic meaning must be given to the word 'on ' and that it does not mean ' on ' in the very narrow sense that i first thought it ought to be taken to mean, but that it must at any rate be limited to this extent - namely, it must be at the same time as the decree or.....
Judgment:

1. This is an appeal from a judgment of Mr-Justice Kumaraswami Sastri granting the petitioner, the divorced wife ot the respondent, alimony at the rate of Rs. 150 a month. The decree absolute was made on the 15th August 1905. The present application is made under Section 37 of the Indian Divorce Act which empowers the court on confirmation of any decree declaring a marriage to be dissolved to make an order for the payment of alimony. That section corresponded to Section 32 of the Matrimonial Causes Act of 1855 which has now been replaced by Section I(1) of the Matrimonial Causes Act of 1907. Both these Acts also contain similar language authorising an order of alimony to be made on any decree for dissolution or nullity of marriage. Now, much learned argument was addressed to us as to the meaning to be put upon the words 'on confirmation'. It was objected for the appellant that an order made 15 years after the decree for divorce had been made absolute could not possibly be regarded as made on confirmation of the decree. It is unnecessary to do more than to say that the Aprili number of 1921, Probate Division, Page 107, has brought out a decision, Scott v. Scott (1921) P. 107 on this very question. In that case an order for payment of alimony pendente lite had been made which of course ceased to operate on the making of the decree absolute. Payments had been continued for some time under some alleged agreement and seven years after, an application was made to the court under what is now the corresponding section of the Act of 1907. The learned President, Sir Henry Duke conceived that he had a discretion which enabled him to make the order but that decision was overruled by the Court of Appeal in judgments which are equally applicable to the facts of the present case. Lord Sterndale said, 'The first question is, what is the meaning of on any decree for dissolution? I was inclined at one time to think that it meant at the same time as the decree wa's made, or as it could not precede it, at any rate immediately following upon it. Looking however at the decision of Sir James Hannen in Bradley v. Bradley and Sidney v. Sidney ((1878) 3 P.D. 471867) 36 L.J. (P & M) 733 in the House of Lords which he follows, and also Rcfbertson v. Robertson (1883) 8 P.D. 94, it seems to me that what Sir James Hannen calls a more elastic meaning must be given to the word 'on ' and that it does not mean ' on ' in the very narrow sense that I first thought it ought to be taken to mean, but that it must at any rate be limited to this extent - namely, it must be at the same time as the decree or within a reasonable time afterwards and that what constitutes a 'reasonable time' must no doubt depend on all the circumstances of the case. It appears to me that the learned President has not quite taken that view. He has, I think, taken it as meaning at the same time as or immediately after or within such time as the judge in his discretion may think the petition may be presented. That in my opinion is too wide. What constitutes 'a reasonable time' is, I know, not very easy to define ; but we have some guide, although I do not think it does lay down an absolute hard and fast rule, in what was said by Jessel M.R. in Robertson v. Robertson (1883) 8 P.D. 94 . He said: 'In the first place, it appears that there is no instance of an application of this nature being made at so late a period as the present application. Whatever meaning may be given to the word 'on' in the Act of Parliament, it is very difficult to extend it to above a year. It is not necessary to express an opinion as to what time should be allowed, but it is not to be conceived that a period of more than a year can be included in the word 'on'. 'On' if not confined to the time of making the decree must mean shortly after.' In that case the time was eighteen months, but as the decision of the court went in agreement with that of the learned president on the merits of the application and not really on the question of time, I do not think that statement ought to be taken as a decision as to the absolute limit. It does however point in the direction I have already indicated - namely that the word 'on' does not mean an unlimited time within the judge's discretion, but it does mean within a reasonable time having regard to all the circumstances of the case. That to my mind reduces this case to a very short question: Is the fact of the agreement or arrangement, whatever it may be called, having been made between the parties a circumstance that extends the reasonable time in this case to seven years? In my opinion it is not. It may be that parties were not quite clear as to the actual effect of the agreement or arrangement they had made. It may be that they or their advisers were under the impression that an order had been obtained for the payment of this money. I do not think either of these circumstances is one that justifies the postponement of the application for an order for maintenance for this period.' Warrington, L.J. agreed and Scrutton L.J. (at page 125) referred to some other authorities on the meaning of the word 'on'. He says, 'Lord Denman C.J. in Reg v. Arkwright (1846) 12 Q.B. 960 says. 'The words 'on' or 'upon' (it has been decided) may either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require, with reference to the context and the subject matter of the enactment.' A series of cases on various branches of the law have been decided in which the word 'on' has been given one or other of those meanings. Lord Denman does not say, as he might have said, ' I think it means all three.' Then the learned Judge goes on to say ' But although the order may be made after the decree for dissolution or nullity of marriage there still arises the question, is there any limit of time within which it may be made? Can the wife come and say' 'I am going presently to present a petition for dissolution ' of marriage and in the meanwhile I make an application for permanent maintenance in case I succeed?' Obviously not; that would clearly be made an unreasonable time before ; or can she say 'Twenty years ago, your Lordship gave me a decree for dissolution of marriage, now will you make an order for permanent maintenance' and say nothing more? Again it seems to me equally obviously not. There is some limitation to be implied in the temporary nature of the order for security as to the order or decree for dissolution. In my view that limitation is this, that inasmuch as the matters to be considred are matters which should be in the mind of the judge at the time when he is making the decree for dissolution of marriage, the limitation is that the application should be made within a reasonable time from the decree for dissolution of marriage. As to what period of time that means, one has the guidance of Jessel M.R's. views in Robertson v. Robertson (1883) 8 P.D. 94 to which we were referred, but at the time when that case was decided there was no case in which the power had been exercised more than a year after the decree, and the learned Judge could hardly conceive that a period of more than a year could he included in the word 'on'. In that particular case the time was eighteen months. 1 see the same limitation has been approved in In Re Leigh (1988) 40 Ch. D. 290 where the power of the court was sought to compel a ward of Court to make a settlement 'upon or in contemplation of the marriage.' And the learned judge concludes: ' I think in this particular case the application ought to have been made within a reasonable time after the decree for dissolution and I see nothing whatever in the circumstances of this case to justify an application being made seven.years after the decree.' Everything that has been said in that case by these eminent judges applies to this case and the result is that the appeal must be allowed and the petition dismissed. In the circumstances, we make no order as to costs.

2. The memorandum of objection is also dismissed.


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