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ErwIn KleIn Vs. Kathleen Klein - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 158 of 1952
Judge
Reported inAIR1954Cal406,58CWN169
ActsDivorce Act, 1869 - Section 37
AppellantErwIn Klein
RespondentKathleen Klein
Appellant AdvocateP.K. Sen, Adv.
Respondent AdvocateSabyasachi Mukherji, Adv.
DispositionAppeal dismissed
Excerpt:
- .....any modification.13. i cannot but observe that the conduct of the respondent in resisting the wife's application on the technical point, on which he thought it right to rely, cannot be regarded as very honourable. it may be recalled that the decree passed in this case is not a decree for dissolution of marriage. it is a decree for judicial separation which means that the respondent remains the appellant's wife. the decree which, we are told, was not resisted, was made on the ground of the appellant's misconduct. that he should now try to take advantage of the delay which had occurred in making the application for alimony, reflects little credit on him, whether as a husband or as a man, seeing particularly that the inability of the wife to move the court earlier was caused by his own.....
Judgment:

Chakravartti, C.J.

1. This appeal is wholly unmeritorious on the facts and I am glad to be able to say that even no technical support is lent to it by the provision of law upon which the learned Counsel for the appellant relied.

2. The appellant is one Erwin Klein, who is said to be a musician by profession. The respondent is his wife. The parties were married in 1940, but in November, 1947, while living in Calcutta they separated. The husband continued paying a maintenance allowance to the wife till February 1950, but thereafter stopped payment altogether. In those circumstances, the respondent brought a suit on 24-6-1950, for judicial separation as also the custody of the two children of the marrige, a boy and a girl. The decree for Judicial separation was, we are informed, asked for on allegations of adultery on the part of the husband. The wife obtained a decree on 25-8-1950, by which the custody of the children was also given to her. in the suit itself she had made no prayer for alimony 'pendente lite' or permanent alimony and so no order for alimony was made in her favour.

3. The application out of which the present appeal arises was made by the respondent on 24-1-1952, that is to say, sixteen months after the date of the decree. The wife alleged that the husband had still not been paying her any money at all and she was in serious difficulty. It appears that the appellant had been paying a sum of Rs. 130/- per month as the educational expenses of the son, but we are told that after the son had been removed from the school where he had been studying, even that allowance was stopped.

4. Mr. Justice Sinha made an order in favour of the respondent on 1-7-1952. Before him it was argued that the application should be thrown out at sight inasmuch as having regard to the language of Section 37, Divorce Act, the application was not maintainable at all. It was submitted, in the second place, on behalf of the appellant that In any event, the alimony awarded to the wife must bear some reasonable proportion to the salary he was earning.

Mr. Justice Sinha overruled the first contention of the appellant. As regards the second contention, he had before him two affidavits, one by the wife in which she stated that, according to her information the appellant was receiving a sum of Rs. 1000/- per month with free board and lodging at the Maidens Hotel at Delhi. That allegation was counte-red by the appellant in an affidavit of his own in which he stated that he was at that time employed in the Delhi Gymkhana Club, receiving a monthly salary of Rs. 700/- only. It should be added that the appellant also stated that he was staying in the Gymkhana Club, which probably implied that he was getting his board and lodging free. Mr. Justice Sinha took into consideration all the facts of the case and made an order against the appellant, directing him to pay Rs. 250/- per month to the respondent as 'permanent alimony and/or maintenance', and Rs. 130/- per month for the maintenance and the educational charges of the son. The daughter, we are informed, had already died.

5. No point was raised before us regarding the order for the payment of Rs. 130/- per month for the maintenance and the educational charges of the son. But with regard to the alimony directed to be paid to the respondent, Mr. Sen repeated before us the argument which had failed before the learned trial Judge. He argued that inasmuch as Section 37, Divorce Act required an application for alimony to be made 'on any decree of judicial separation obtained by the wife', no application could be entertained if it was made as long as sixteen months after the date of the decree. In the second place, he contended that the quantum fixed by the learned Judge for the permanent alimony of the wife was excessive, inasmuch as after payment of income-tax, his client was left only with a net income of Rs. 640/- out of which he had to pay Rs. 200/- per month to his mother and a further sum of Rs. 130/- for the maintenance and education of the son.

6. The first point has been discussed in the judgment under appeal at great length. All the relevant decisions seem to have been cited before Mr. Justice Sinha and they received a most careful consideration. The learned Judge, upon an examination of the language of Section 37 and the multitude of authorities cited before him, came to the conclusion that no rigid time limit could be read into the word 'on', occurring in Section 37, and that although an application had to be made within a reasonable time, what would be the reasonable time would depend upon the facts of each case.

7. In my opinion, that view of Section 37 is plainly correct. As I have said, all that Section 37 says in terms is that the High Court

'may, if it thinks fit ..... on any decree of Judicial separation obtained by the wife ..... order that the husband shall..... secure to the wife such gross sum of money, or such annual sum of money for any term ..... as ..... it thinks reasonable.'

In that language I do not find any trace of any intention to fix a time-limit for an application made by the wife.

Grammatically and as a matter of language, the expression 'on any decree of judicial separation obtained by the wife' would mean that an order for alimony could be made only after the decree of judicial separation had been passed and not before. In other words, the passing of a decree of judicial separation was a condition precedent to the wife making an application for alimony and to the Court making an order therefor. Directly the expression 'on any decree of judicial separation obtained by the wife' does not take the matter further. At the same time, it must be conceded that an application made at ' whatever point of time ought not to be entertained. One of the reasons for insisting upon an early application would be that the recollection of the facts upon which the main decree had been passed might completely disappear, if the application was too long delayed. Another reason perhaps would be that the husband ceasing to anticipate any further demand by the wife by way of a claim for alimony might alter his position to such an extent that it would be difficult, if not impossible, for him to comply with an order, unexpectedly made after the lapse of a long period.

While these considerations might be relevant considerations, the period which the Court canhold to be reasonable must, in the very nature of things, be an elastic one. To put it briefly an application for alimony can under Section 37, be made only upon and after a decree for judicial separation being passed. It is not required to be made simultaneously with the passing of such a decree. It can be made after the decree, but on the other hand, though it can be made after the decree and immediacy is not required, it ought not to be allowed to be made at any time afterwards. It must be made within a reasonable time and reasonable time must mean reasonable in the circumstances of the case.

8. It appears that Mr. Justice Sinha addressed himself precisely to this question and proceeded to enquire what the circumstances of the case were. The circumstances found by his Lordship can best be stated in his own words. He observed as follows :

'The decree for dissolution was passed on 25th August 1950. The husband had stopped paying maintenance from March 1950. The petitioner and her children were on the verge of starvation on 4-8-1950. She made an appeal to the then Governor of West Bengal Dr. Katju for help on 18-8-1950, the Governor referred the case to Sir A. P. Benthall. The petitioner could not apply for alimony or maintenance as she could not put her solicitors Messrs. S. N. Dutt & Co. in funds. Sir A. P. Benthall was ultimately successful in helping the petitioner through the East India Charitable Trust and Messrs. Orr, Dignam & Co. Solicitors for the trust were prepared to act for her without any charge.

Messrs. S. N. Dutt & Co. however refused to hand over any papers without payment of Rs, 600/- due to them on account of out of pocket costs and legal fees. On 14-2-1951, Messrs. Orr Dignam & Co., wrote a letter to Messrs. S, N Dutt & Co., informing them that the lady concerned was entirely destitute and offering to pay from any moneys recovered later on. To this Messrs. S. N. Dutt & Co. sent a point blank refusal on 15-2-1951. In July 1951, the petitioner made an application before Mitter J. for leave to file warrant of attorney in favour of Messrs. Orr, Dignam & Co. The order for change was made on 10-7-1951, by the learned Judge, charging the costs of Messrs. S. N. Dutt & Co. upon the alimony which the petitioner might receive from her husband. The learned Judge further recovered an undertaking by the petitioner to make such payment.'

9. In view of the facts found by the learned Judge, as recorded by him in the passage I have just read, it is impossible to say that the wife could have moved in the matter at all before 10-7-1951. She had not only been reduced to destitution, but pushed to the verge of starvation. She had. to undergo the humiliation of begging for charity and even after she had been able to secure the favour of a particular charitable body, she found her old solicitors standing in her way with their demand for Rs. 600/- payable to them. It was only after Messrs. Orr, Dignam & Co. had offered to act for her without charging any fees and after the Court had made an order, charging any alimony that she might receive with the dues of the solicitors, that it was possible for the respondent to obtain her papers from them. It is perfectly clear that up to 10-7-1951, when the order for the change of Solicitors was made, the respondent was totally powerless to take any steps in the matter at all.

10. Mr. Sen, however, contended that between 10-7-1951 and 24-1-1952, a further period of about six months had elapsed and for that delay there was no just excuse. I am unable to agree with him. Although the respondent had succeeded in obtaining the good offices of Messrs. Orr, Dignam & Co. and although a charitable society had agreed to support her, certain further things had to be done before she could make an application to the Court. There were certain legal expenses which had to be paid and it must also be taken into account, if one is to be realistic, that the respondent could not possibly expect that amount of expedition from persons acting for her gratis which she might have expected if she were able to pay for their services. In my opinion, Mr. Justice Sinha was entirely right in holding, that, in the circumstances of the present case, the period of sixteen months, which had elapsedr between the passing of the decree and the making of the application for alimony, could not possibly be held to have been unreasonable. In my view that finding by the learned Judge, with which I entirely agree, disposes of the first argument advanced by Mr. Sen.

11. I may add here that where the decree is one for the dissolution of a marriage, it may probably be right to insist on greater expedition on the part oi' the wife, if she desires to prefer a claim of alimony. In such a case, the marriage, is broken and it is plainly right that all adjustments between parties, who are no longer man and wife, should take place as early as possible. The husband in such a case, will not be fairly treated if the fear of further claims from a woman who is no longer his wife, is kept hanging over him indefinitely. But far different is the case of a decree for judicial separation where the wife, being still a wife is entitled to support from her husband and can claim some latitude as to the time when she may come forward with, her claim.

12. There remains the second question regarding the quantum of the alimony. Mr. Justice Sinha had before him the two rival affidavits to which I have referred. It is somewhat remarkable that although the appellant said in his affidavit that he was drawing a salary of Rs. 700/-as the Band Master in the Delhi Gymkhana Club, he did not deny the allegation made by the respondent in her affidavit that he had till re-cently been receiving a salary of Rs. 1,000/- with free board and lodging at the Maidens Hotel at Delhi. It is quite true that we have before us only an oath against another oath, but since the wife's allegation is not denied, it is pertinent to enquire why a person, employed at the Maidens Hotel, Delhi, at a salary of Rs. 1000/-, should have found it necessary to change over to an employment at another club at Delhi itself at a salary of Rs. 700/-

Be that as it may, Mr. Justice Sinha took into consideration the fact that up to February, 1950, the appellant had found no difficulty in paying Rs. 600/- per month to his wife. As against that six hundred, he has made an order for Rs. 380/-only. In all the circumstances of the case, I do not think that even assuming that the present salary of the appellant is Rs. 700/- per month, it can be said that the learned Judge has not fixed the quantum of the alimony at a reasonable figure, in view of the past payments made by the appellant himself, I am, therefore, unable to hold that the order made by the learned Judge regarding the actual amount to be paid by the appellant requires any modification.

13. I cannot but observe that the conduct of the respondent in resisting the wife's application on the technical point, on which he thought it right to rely, cannot be regarded as very honourable. It may be recalled that the decree passed in this case is not a decree for dissolution of marriage. It is a decree for judicial separation which means that the respondent remains the appellant's wife. The decree which, we are told, was not resisted, was made on the ground of the appellant's misconduct. That he should now try to take advantage of the delay which had occurred in making the application for alimony, reflects little credit on him, whether as a husband or as a man, seeing particularly that the inability of the wife to move the Court earlier was caused by his own conduct in withholding from her all monetary help.

14. As I said at the beginning of this judgment, this appeal is wholly unmeritorious and it is accordingly dismissed with costs.

S.R. Das Gupta, J.

15. I agree.

16. I only want to add that the case of awife, where a decree for judicial separation ispassed, should toe treated more liberally in determining whether or not an application for alimony has been made within a reasonable time.In such a case, as my Lord the Chief Justicehas pointed out. she still remains the wife ofthe respondent and she is entitled to maintenanceby virtue of her position as wife. In my opinion,unless the delay is such as amounts to evidenceof abandonment of her right to claim maintenance, an application for alimony should, generally, be granted.


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