Shavaksha Bomanji Balsara vs Meherbai Shavaksha Balsara on 28 July, 1937

    Shavaksha Bomanji Balsara vs Meherbai Shavaksha Balsara on 28/7/1937

JUDGMENT

   B.J. Wadia, J.

   1. This is an application for execution under Order XXI,. Rule 11(2), of the
Civil Procedure Code, taken out by the defendant against her husband the
plaintiff who was ordered to pay Rs. 200 to his wife by the order dated March
12, 1937, and a further sum of Rs. 195 by the order dated April 7, 1937. The
mode in which the assistance of the Court is required in execution is by arrest
and imprisonment of the plaintiff, as he failed, to pay the amount. The order
dated March 12, 1937, has been stayed pending the hearing of Civil Revision
Application No. 208 of 1937.

   2. With regard to the order of April 7, 1937, the plaintiff through his
counsel-now contends that the order was without jurisdiction on the ground that
it was not passed by the Matrimonial Court constituted of the presiding
Matrimonial Judge and the delegates, but by the Judge sitting alone. The order
was made under Section 39 of the Parsi Marriage and Divorce Act which provides
that if the wife shall not have an independent income sufficient for her support
and the necessary expenses of the suit, the Court, on the application of the
wife, may order the husband to pay her monthly or weekly during the suit such
sum not exceeding one-fifth of her husband's net income as the Court,
considering the circumstances of the parties, shall think reasonable. It was
argued; that it was for the Court to make the order, and the word, " Court", is
defined under Section 2(2) as meaning a Court constituted under the: Parsi
Marriage and Divorce Act, unless there is anything repugnant in the subject or
context. The defendant's contention is that in execution a party cannot go
behind the Court's order, but the plaintiff contends that the order itself is a
nullity, being without jurisdiction, The constitution of the Court is laid down
in s. I8 which provides that for the purpose of hearing suits under this Act a
special Court shall be constituted, among other places, in Bombay. Section 19
provides that the Court so constituted shall consist of the Chief Justice of the
High Court or such other Judge of the High Court as the Chief Justice shall from
time to time appoint as the Judge of the Matrimonial Court, and that in the
trial of cases under the Act the Judge shall be aided by seven delegates. Under
Section 24 the local Government appoints persons as delegates " to aid in the
adjudication of cases " arising under the Act. The functions of the Judge and
the delegates are laid down in Section 46- Under Section 45 the provisions of
the Code of Civil Procedure, 1908, shall, so far as may be, apply to proceedings
in suits instituted under the Act, including proceedings in execution and orders
subsequent to decree. Section 46 provides that in suits under the Act all
questions of law and procedure shall be determined by the presiding Judge ; but
the decision on the facts shall be the decision of the majority of the delegates
before whom the case is tried.

   3. There is thus a distinct cleavage of functions between the presiding Judge
of the Court and the delegates who are appointed to aid him in the adjudication
of cases. It seems that a little confusion has crept into the Act by the use of
the word ' Court' promiscuously throughout the Act. For instance, under Section
29(3) it is "the Court" which grants the leave to sue after recording its
reasons in writing, but it was clearly not the intention of the legislature that
the Court which would grant the leave was to be a Court constituted of both the
Judge and the delegates. The granting of leave is a question of law, or rather a
mixed question of law and fact, and the delegates have no voice in matters of
law. Under Section 33 it is provided that in every suit for divorce on the
ground of adultery, the plaintiff shall, unless " the Court " shall otherwise
order, make the person with whom the adultery is alleged to have been committed
a co-defendant. This is clearly a matter of procedure which the Judge alone has
to determine, and yet the word used is " Court". Under Section 35 (e) a decree
in a suit under Section 30, 31, 32 or 34 cannot be pronounced unless the Court
is inter alia satisfied that there is no "legal ground" why relief should' not
be granted. The determination of such " legal ground " is entirely a question of
law which is for the presiding Judge alone, but the word used is " Court ".
Section 39 refers to an application pendente lite by the wife made in a suit
under the Act. The delegates are appointed to aid in the adjudication of suits,
that is suits for a declaration of nullity of marriage, or for divorce, or for
judicial separation, or for restitution of conjugal rights. Counsel argued that
a case includes a part of the case, and therefore also includes interlocutory
applications. That may be so generally; but I do not agree that interlocutory
applications under the Parsi Marriage and Divorce Act are to be dealt with by
the delegates. Under Section 40 the Court may, at the time of passing a decree
on application, order that the husband shall, to the satisfaction of the Court,
secure to the wife her maintenance under certain circumstances. I do not think
that by the satisfaction of the Court the legislature intended the satisfaction
also of the delegates. Under Section 47 an appeal lies inter alia where the
decision of the Court is contrary to law or usage. If the word " Court "
includes the delegates, it would mean that the decision of the delegates might
also be contrary to law, whereas questions of law are entirely outside their
purview. Under Section 52 the Court may allow proceedings to be amended if
necessary. An amendment is a matter of procedure which is for the Judge, and yet
the word " Court" is used, though it cannot include the delegates. I have dealt
with most of the relevant sections. As I have said before, the word " Court" is
promiscuously used throughout the Act, but under the cleavage of functions which
I have referred to, the word must be read in its context in order to determine
whether it includes both the Judge and the delegates or the Judge sitting alone.

   4. It has been a long standing practice under the old Act, and the practice
also under the new Act, for all these interlocutory matters to be dealt with by
the Parsi Matrimonial Judge sitting alone, but I concede that because the
practice is of long standing it need not necessarily be correct. The practice,
however, is correct in the view I take of the provisions of the Act.

   5. As to the application itself, the defendant seeks to enforce execution of
the order of April last by the arrest and imprisonment of the judgment-debtor.
My attention is drawn to Act XXI of 1936, under which Order XXI, Rule 40, of the
Code, has been amended. That section requires the Court to take evidence as to
the ability of the judgment-debtor to pay before committing him to prison. Some
evidence has already been taken for the purposes of the application under
Section 39, but it has not been taken for the purposes of this application in
execution. I, therefore, adjourn the notice in order to hear the necessary
evidence on both sides. I order the plaintiff to pay the defendant's costs of
to-day's hearing before me.