Nadirshaw Jamshedji Vachha vs Manekbai Nadirshaw Vachha on 20 September, 1937

    Nadirshaw Jamshedji Vachha vs Manekbai Nadirshaw Vachha on 20/9/1937

JUDGMENT

   Divatia, J.

   1. This appeal is preferred against the decision of B. J. Wadia J. rejecting
the application in the form of a chamber summons taken out by the defendant in a
Parsi Matrimonial suit in Bombay for an order that the amount of permanent
alimony of Rs. 85 per month awarded to his former wife, the plaintiff, by Mr.
Justice Davar in 1928, and subsequently reduced to Rs. 50 per month by B. J.
Wadia, J. in 1935, be altogether rescinded. The only ground on which the
defendant-appellant prayed for this order was that after she was divorced from
him, the wife had remarried in 1934, and the fact of remarriage itself was a
sufficient reason, under the new Parsi Marriage and Divorce Act of 1936, for the
rescission of the order of permanent alimony which was made under the previous
Act of 1865 in which, however, there was no provision for; such rescission in
the event of the wife's remarriage.

   2. The appellant relied on Section 40 of the new Act which runs as follows :-

     40. U) The Court may, if it shall think fit at the time of passing any
decree under this Act or subsequently thereto on application made to it for
purpose, order that the husband shall,-

     (a) to the satisfaction of the Court, secure to the wife while she remains
chaste and unmarried such gross sum or such monthly or periodical payment of
money for a term not exceeding her life as, having regard to her own property,
if any, her husband's ability and the conduct of the parties, shall be deemed
just, and for that purpose may require a proper instrument to be executed by all
necessary parties and suspend the pronouncing of, its decree until such
instruments shall have been duly executed, or,

     (b) make such monthly payments to the wife for her maintenance and support
as the Court may think reasonable.

     In case any such order shall not be obeyed by her husband it may be
enforced in the manner provided for the execution of decrees and orders under
the Code of Civil Procedure, 1908, and further the husband may be sued by any
person supplying the wife with necessaries during the time of such disobedience
for the price of such necessaries.

     (2) The Court, if satisfied that there is a change in the circumstances of
either party at any time, may at the instance of either party vary, modify or
rescind such order in such manner as the Court may deem just.

   3. It is to be noted and it is conceded that the order of alimony passed by
Davar J. was a personal order and not secured by any charge on the husband's
property, and it would, therefore, fall under Clause (b) and not Clause (a) of
Sub-section (1) of this section. The condition " while she; remains chaste and
unmarried " which is known as " dum casta et sola" clause in English law is
inserted in Clause (a) but not in Clause (b). The result would be that in the
case of a secured alimony, the order would cease to operate on the wife's
remarriage while in the case of a; personal order no such result would follow
unless the order contained a provision that it was to cease to operate on her
remarriage. Mr. Banaji for the appellant, however, contends that the absence of
the words "while she remains chaste and unmarried" in Clause (b) of the new Act
was only an oversight or an accidental omission on the part of the legislature
and that in any case those words should be taken as implied in a personal order.
The first contention appears to me to have some force, but the remedy for such
oversight or omission clearly lies with the legislature and not with the Court
which has to administer the law as it is. I am also unable to accede to the
second contention. If those words appear expressly in Clause (a) and are not to
be found in Clause (b), it is either accidental or intentional. If it is
accidental, the remedy, as1 I said, lies with the legislature. If it is
intentional, they cannot be taken as implied in Clause (b) but on the contrary
purposely excluded.

   4. It is next urged on behalf of the appellant that in any, case remarriage
is a change in the circumstances of either party and that therefore the Court
can, acting under Sub-section (2) of that section, rescind the order of alimony.
Now, it is true that there was no provision in the preceding Act corresponding
to this paragraph but it cannot be held to mean that the fact of remarriage is,
by itself, a change in circumstances which entitles the previous husband in all
cases to obtain an order of rescission of alimony. I agree with the learned
Judge in holding that it may be regarded as one of the circumstances under
which, in a proper case, the order of alimony may be varied or even rescinded.
That would depend on the circumstances of each case, and, as observed by the
learned Judge, the circumstances of the wife's remarriage was in existence in
1935 when he reduced the alimony to Rs. 50 and that since then there is no
change of circumstances between the parties. On that ground he has refused to
vary or rescind the order. The appellant before us does not contend to have the
order rescinded for change of any circumstances since 1935. The only question,
therefore, is whether the original order of 1928 as varied in 1935 should be
rescinded only because of the wife's remarriage, now that under the new Act of
1936 power of rescission is expressly given on a change of circumstances. I am
unable to hold that the order must be rescinded even under the present Act
merely because of the remarriage. It remains a matter of discretion and under
Section 47 of the present Act, the appellate Court cannot interfere with the
decision of the trial Court unless it is contrary to law or usage having the
force of law or there is a substantial error or defect in the procedure. This
contention, therefore, also fails.

   5. The last contention is about the order of costs. The learned Judge, in
dismissing the summons with costs, has made an order "Counsel certified" under
which, we are told, costs have been taxed on the scale prevailing on the
Original Side of the High Court. It is contended that this is erroneous because
under the rules and Table of Fees enacted by the High Court for trial of cases
in the Parsi Matrimonial Court of Bombay, there is provided a special scale of
fees and it is laid down that those fees only shall be allowed in cases tried
under Act XV of 1865, i.e. the former Parsi Marriage and Divorce Act. It is
further contended that no new rules have been framed under the new Act of 1936
but that until then, by virtue of the provision in the General Clauses Act,
those rules are still applicable to trials under the new Act. I think there is
force in this contention. We are told that the practice has been to tax the
costs on the Original Side scale notwithstanding the special scale. If that is
so, I am unable to see how this practice is consistent with the rule that this
special scale of fees only shall be allowed in Parsi Matrimonial cases. Our
attention is drawn to the case of Payne & Co., v. Pirojshah (1911) 13 Bom. L. R.
920 where at p. 933 Davar J. sitting on the Original Side has observed that if
costs other than those provided in the scale are incurred by a solicitor on
behalf of his client, i.e. the wife, in a Parsi Matrimonial suit, he can hold
the husband liable for costs incurred, and in a regular suit on the Original
Side to recover them, they can be granted to him on proper taxation even though
they are not covered by the special scale of fees laid down, I do not think
those observations are applicable to the present case and I see no reason why
effect should not be given to the only scale provided in a Parsi Matrimonial
suit, I am, therefore, of opinion that the costs should be taxed on the scale of
fees specially prescribed under the rales.

   6. With this variation, the decision of the learned trial Judge is confirmed
and the appeal is dismissed with costs.

   Wassoodew, J.

   1. The principal question of law argued in this appeal is whether a personal
order for alimony passed against the husband in a suit by the wife under Section
34 of the old Parsi Marriage and Divorce Act (XV of 1865), which order by the
retrospective operation of the provisions of the new Parsi Marriage and Divorce
Act (III of 1936) is now referable to the provisions of Section 40(1) (b), is
enforceable only on the condition dum sola vixerit in the absence of an express
provision to that effect in the order itself. It will be noted that a change in
the law has been effected by enacting Section 40(1) (a) in the new Act. The
Legislature has made a distinction between an order for secured alimony or
maintenance and a personal order for monthly pay-ment to a wife for her
maintenance and support under els. (a) and (b) of Section 40(1) of Act III of
1936 respectively. The provision for the order for secured maintenance is thus
made in Section 40(1) (a) :-

     The Court may, if it shall think fit at the time of passing any decree
under this Act or subsequently thereto on application made to it for the
purpose, order that the husband shall, to the satisfaction of the Court, secure
to the wife while she remains chaste and unmarried such gross sum on such
monthly or periodical payment of money for a term not exceeding her life as,
having regard to her own property, etc.

   The dum casta et sola clause has been expressly added in the above order
which I may describe as a securing order. It was not done in the old Section 34
providing for a similar order. There was apparently no express provision for a
personal order under the old Act. The Legislature has now supplied the omission
and has provided for a personal order in Clause (b) of Section 40(I) as. follows
:-

     The Court may, if it shall think fit at the time of passing any decree
under this Act...order that the husband shall make such monthly payments to the
wife for her maintenance and support as the Court may think reasonable.

   There can be no doubt that under Clause (b) the Court possesses a discretion
to impose a condition dum casta et sola. Now whenever such a condition is
imposed, there can be no question of the continuance of alimony upon remarriage
of the wife, and there can then hardly be any necessity for rescission, for the
order will cease to operate proprio vigors.

   2. We are asked in this appeal to hold that the personal and unconditional
order in this case has so ceased to operate upon the assumption that the
Legislature in enacting Clause (b) of Section 40(I) has inadvertently omitted to
state that the order shall be subject to the same condition as in Clause (a).
The clause regarding chastity and remarriage was an addition in the new Act. The
addition therefore was deliberate and intended to make a change in the law as
regards the wife's right to demand alimony upon remarriage if it was secured by
the order. When the Legislature effects a change of language by the addition of
words which did not occur in the old statute and those words are necessary to
convey a particular sense, the addition must be construed as intended to convey
that sense. Where a distinction such as this in language and conditions is
observed in two clauses of the same section, the Legislature must be presumed to
have intended by that language to curtail or enlarge, as the case may be, the
Court's discretion in these matters,

   3. The argument that the draftsman was following the English practice under
which it is said the dum sola clause is uniformly attached to personal orders
and that the omission was inadvertent, is not well-founded. The ordinary rule of
construction is that " nothing is to be added to or to be taken from a statute,
unless there are similar adequate grounds to justify the inference that the
Legislature intended something which it omitted to express"-(see Maxwell on the
Interpretation of Statutes, 7th Edition, p. 12). There are several reasons for
the Legislature's deliberately making the distinction. According to Rayden &
Mortimer's Practice and Law in the Divorce Division (Third Edition, p. 388),

     The condition dum casta is now rarely inserted in orders for the
maintenance of an innocent wife, from the consideration that she should not be
insulted by even the suggestion that she might become unchaste, but, in
determining whether this condition should be attached, the conduct of the) wife,
before as well as during the marriage, may be considered.

   4. As regards condition as to remarriage the authors make the following
statement upon the authorities of Fisher v. Fisher (1861) 2 Sw. & Tr. 410, 414
and Lister v. Lister (1890) 15 P. D. 4 (p. 388) :-

     With regard to the condition dum sola there is no uniform practice, nor
does the contingency of the wife's remarriage receive in every case the
consideration which it would seem to merit. In the early days of the Court it
was considered that if a wife availed herself of the freedom conferred on her by
the decree of divorce and married again it would be unreasonable to compel the
former husband to maintain her, but it has since been laid down that the effect
of the statutes is to leave an unfettered discretion in each case, and that it
would be wrong to lay down any prima facie rule whether or not maintenance shall
continue to be payable after the wife's remarriage. In deciding this matter
every circumstance of the case, -conduct, social position, means, children, and
the future of the wife-must be considered.

   Therefore it is legitimate to presume that the legislature deliberately
preserved the distinction between a securing order and a personal order.

   5. In view of the above, the question of rescinding the personal order will
in the first instance depend on the question whether the remarriage of the wife
is a "change in the circumstances" within Clause (2) of Section 40. That clause
provides that " the Court, if satisfied that there is a change in the
circumstances of either party at any time, may at the instance of either party
vary, modify or rescind such order in such manner as the Court may deem just."
Remarriage, in my view, may be regarded as a change in the circumstances within
the meaning of that clause. But that alone is not enough. In spite of it the
Court has a discretion whether on that account to rescind the order. That
discretion has not been shown to have been unwisely exercised.

   6. Therefore I agree with the order proposed.