Harry Thriepland Woodward vs Mrs. Iris Maud Woodward on 3 September, 1937

    Harry Thriepland Woodward vs Mrs. Iris Maud Woodward on 3/9/1937

ORDER

   Harries, J.

   1. This is an application by the respondent husband in Matrimonial Suit No.
13 of 1935, for an order varying certain settlements in favour of his wife. The
present applicant, Mr. Woodward, was i married to the opposite party on 16th
March 1924. On 27th September 1927, Mr. Woodward took out three policies of
insurance upon his life for Rs. 2000 each. By the terms of these policies, the
sums were to be paid to the policy-holder on 15th September 1947, or, if the
assured died before that date, the sums were to be paid upon proof of death, to
the opposite party. On 31st January 1936, the opposite party obtained a decree
nisi against the applicant, and on 7th August 1936 this decree was made
absolute. The divorce proceedings were conducted in this Court; and it is clear
that the wife obtained, her divorce upon the grounds of adultery and cruelty.
Permanent alimony at the rate of Rs. 70 per mensem was awarded to the opposite
party, but the custody of the two children of marriage, namely two boys, was
given to the father, the present applicant.

   2. The present application is made under Section 40, Divorce Act, and it is
contended that, now that the marriage has been dissolved, it is only just and
equitable that the wife should be deprived of any interest which she might have
under these three policies of insurance. Mr. Chiene, who has appeared on behalf
of the applicant, has stated before me that the main object of the applicant is
to benefit his two infant children and that what he really wants is that the
names of these two infant children should be substituted in two policies instead
of the name of the wife, and that the husband should only have the absolute
right in one of the policies. Mr. Saila Nath Mukerji, on behalf of the opposite
party, Mrs. Woodward, has contended in the first place that these policies do
not amount to post-nuptial settlements, or to settlements at all, and that in
any event this is not a case in which a Court should make any order varying the
settlements, if such they be.

   3. Seotion 40, Divorce Act, is in these terms:

     The High Court, after a decree absolute for dissolution of marriage...may
enquire into the existence of the ante nuptial or post-nuptial settlements made
on the parties whose marriage is the subject of the decree and may make such
orders with reference to the application of the whole or any portion of the
property settled whether for the benefit of the husband, or the wife, or of the
children (if any) of the marriage, or of both children and parents as to the
Court seems fit. Provided that the Court shall not make any order for the
benefit of the parents or either of thorn at the expense of the children.

   4. The High Court in this case has made a decree absolute, dissolving the
marriage of the parties, and consequently it can enquire into the existence of
any post nuptial settlement, and can make orders with reference to the
application of the whole or any portion of the settled property, whether such
settlement be for the benefit of the husband or the wife. It is to be observed
however that the Court is not bound to make any order. The power given to the
Court is a discretionary one, and the orders, if any, which it makes are such
orders as the Court deems fit in the circumstances of the case. Clearly this
section gives the Court a discretion, though of course such discretion must be
exercised judicially.

   5. In the present case it is unnecessary for me to decide whether or not
these policies amount to a settlement within the meaning of Section 40, Divorce
Act. The question arose in Gulbenkian v. Gulbenkian (1927) L.R.P. 237. In that
case policies similar in terms to the present policies were considered, and
Hill, J. did vary the terms of the policies. He however did not expressly hold
that the policies amounted to a settlement. He held that the policies were
capable of one of two constructions, namely that the wife had no rights at all
under the policies, or that she had an equitable interest as a prospective
cestui que trust. He accordingly held that if she had no rights under the
policies no harm could be done by striking her name out of them; but on the
other hand, if she had a right, it could only be if the doou. merits in question
amounted to a settlement; and consequently he made the variations prayed for.
The case in Shamdas Gobindram v. Mt. Savitribai (1937) 24 A.I.R. Sind 181 is an
authority to the effect that a policy such as the present policies amounts to a
gift in favour of the wife. If the policies in question amount to a gift, then
clearly they cannot come under the provisions of Section 40, Divorce Act.
However I leave the matter open because I an satisfied that even if these
policies do amount to post-nuptial settlements, this i not a case in which I
should exercise mi discretion in favour of the husband.

   6. As I have stated, the husband was found guilty of adultery and cruelty in
the divorce proceedings. He is the guilty party and he is now asking the Court
to deprive the innocent wife of a benefit which was given to her during
marriage. It is open to a guilty party to make an application under Section 40;
but in my view such applications should not readily be acceded to There may be
special cases when it would be just and proper to make an order upon the
application of a guilty party varying a settlement, but unless such special
circumstances exist, the status quo should, in my opinion, remain undisturbed.
This was dearly laid down in Thompson v. Thompson and Barras (1863) 32 L.J.P. &
M. 39. In that case the Judge Ordinary observed, while discussing the then
English section which corresponds to the present Section 40, Indian Divorce Act:

     I think that it would be a gross perversion of the meaning of the
Legislature if, at the prayer of an adulterous wife, the Court should deprive an
innocent husband of any interest he takes under a settlement, even though it be
for the benefit of the children of the marriage.

   7. In that case, the applicant was the adulterous wife, but in my view the
same principle must obtain where the application is made by the guilty husband.
A grievous wrong has been done to the wife in this case, and in my view it is
only just that she should be permitted to retain the benefits which she had
received when she was the wife of the guilty husband. It is true that the
husband is prepared in this case to give the children of the marriage the
benefit of two of these policies, but as pointed out in Thompson v. Thompson and
Barras (1863) 32 L.J.P. & M. 39, the Court should not deprive an innocent party
of any interest which he takes under a settlement, even though it be for the
benefit of the children of the marriage. The conduct of the husband in this case
wrecked the married life of the opposite party, and in my view she should not be
made to suffer any more. All that she has been given by the Court is alimony at
the rate of Rs. 70 per mensem, and in my view she should not be deprived of the
possible interest which she might obtain under these policies. The result
therefore is that I see no ground for varying the terms of these settlements, if
they be settlements; and that being so, this application fails and is dismissed
with costs. I assess the lawyer's fee at Rs. 75.