Erwin Klein vs Kathleen Klein on 14 December, 1953

    Erwin Klein vs Kathleen Klein on 14/12/1953

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 can hold 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 a wife, where a decree for judicial
separation is passed, should toe treated more liberally in deter mining whether
or not an application for ali mony has been made within a reasonable time. In
such a case, as my Lord the Chief Justice has pointed out. she still remains the
wife of the respondent and she is entitled to maintenance by virtue of her
position as wife. In my opinion, unless the delay is such as amounts to evidence
of abandonment of her right to claim mainte nance, an application for alimony
should, gene rally, be granted.