Manekbai Nadirshaw Vachha vs Nadirshaw Jamshedji Vachha on 20 February, 1936

    Manekbai Nadirshaw Vachha vs Nadirshaw Jamshedji Vachha on 20/2/1936

JUDGMENT

   Broomfield, J.

   1. This is an appeal under Section 42, Parsi Marriage and Divorce Act 15 of
1865, from an order of B.J. Wadia, J. sitting in chambers as Judge of the Parsi
Chief Matrimonial Court, Bombay, reducing the amount of permanent alimony
awarded to appellant from Rs. 85 to Rs. 50 per mensem. The parties were married
in 1915. In November 1927, the appellant brought a suit under the Act for
dissolution of her marriage with the respondent on the ground of adultery. The
case was tried by Davar, J. and 11 delegates, and a decree for dissolution of
the marriage was made on 31st January 1928. On 6th July 1928, Davar, J. sitting
in chambers made an order that the respondent should pay the appellant Rs. 85
per mensem as permanent alimony from 1st February 1928. Subsequently both
parties re-married and on 6th March 1935, the respondent took out a chamber
summons before B.J. Wadia, J., upon which the amount of monthly payment was
reduced as stated above. The main question in this appeal is whether the learned
Judge had any authority to vary the order of his predecessor. This by itself is
a fairly simple question, but the appeal raises incidentally a question of
considerrable difficulty in connection with the practice of the Parsi Chief
Matrimonial Court, Bombay. The difficulty arises from the form of the original
order. The only sections in the Act dealing with alimony are Sections 33, 34 and
35. Section 33 deals with alimony pendente lite and we are not concerned with
that. But it may be noted that it empowers the Court to order the husband to
make a monthly or weekly payment to the wife during the suit. Section 34 is in
these terms:

     The Court may, if it shall think fit, on any decree for divorce or judicial
separation, order that the husband shall, to the satisfaction of the Court,
secure to the wife such gross sum, or such monthly or periodical payments 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
instrument shall have been duly executed.

     In case any such order shall not be obeyed by the husband, he shall be
liable to damages at her suit, and further to be sued by any person supplying
her with necessaries during the time of suoh disobedience, for the price or
value of such necessaries.

   2. Section 35 provides that in all cases in which the Courts shall make any
decree or order for alimony, it may direct the same to be paid either to the
wife herself, or to a trustee, and may impose terms and restrictions. This last
section, which corresponds to Section 24, English Matrimonial Causes Act, 1857
does not appear to confer any independent power but only means that any decree
or order made under Section 33 or Section 34 may provide for payment direct to
the wife or to a trustee on her behalf, and may be made subject to conditions.
So far as the express provisions of the Act go at any rate, there is no power to
make an order for permanent alimony except under Section 34, and the power there
given is to order the husband to secure to the wife a gross sum or monthly or
periodical payments. The language is different and, no doubt, intentionally
different from that of Section 33 under which a husband may be ordered to pay a
monthly or weekly sum.

   3. Now Act 15 of 1865 is largely based on the English Act to which I have
just referred, and Section 34 is praotioally the same as Section 32 of that Act.
There are slight differences of wording, but they do not appear to affect the
sense materially. The construction which the English Courts have placed on this
section is that it conferred no other power except to secure a gross sum or
annual sums to the wife by charging the property of the husband; if he had no
property, no order could be made; he could not be ordered to make periodical
payments out of wages or salary. It was also held that an order of the kind
contemplated by the section, viz., an order securing the payment or payments to
the wife, could not be afterwards varied, as the intention of the legislature
was that it should be permanent: Rawlins v. Rawlins (1865) 4 Sw and Tr 168, Hyde
v. Hyde (1865) 12 L T 235 and Medley v. Medley (1882) 7 P.D 122; see also
Iswarayya v. Iswarayya 1931 P.C 234.

   4. Section 32 of the English Act of 1857 applied only to decrees for
dissolution of marriage and to the award of permanent alimony, or as the English
lawyers call it maintenance, in such cases. Alimony in the case of decrees for
judicial separation was dealt with separately in Sections 17 and 22. The Court
was empowered to make such provision for alimony as should be deemed just, and
the principles and practice of the. Ecclesiastical Courts were to be followed in
that connexion. It had been the practice of those Courts in dealing with cases
of divorce a mensa et toro they did not pronounce decrees of divorce a vinculoto
order payments to be made by the husband to the wife and to vary such orders
when necessary. There are no similar provisions in the Parsi Marriage and
Divorce Act. Sections 33, 34 and 35 of the Act apply both to decrees for
dissolution and to decrees for judicial separation.

   5. As it was considered to be a defect in the English Act that a husband who
had the means to pay maintenance, though not possessing any property on which
the payment could be secured, could not be ordered to pay, the Matrimonial
Causes Act of 1866 gave the Court power to order weekly or monthly payments and
to disoharge, modify or suspend the order should the husband become unable to
pay. It is to be noted that the power to vary the order was not given in respect
of what I may call the securing order under Section 32 of the Act of 1857 but
only in respect of the personal order for monthly or weekly payments, power to
make which, in the case of decrees for dissolution of marriage, was conferred
for the first time by the Act of 1866. These new provisions were incorporated in
the Divorce Act of 1869, but there has been no corresponding amendment of the
Parsi Act.

   6. Thus we have this curious position that the only provision in the Parsi
Act empowering the Court to grant permanent alimony, in the case of dissolution
of marriage and judicial separation alike, is one which has been construed by
the English Courts as conferring no power to order the husband to make
periodical payments to his wife, unless at any rate tbe payment is secured by
the execution of a deed or otherwise. In the present case however the payment
was not secured in any way. Davar, J. made a simple order on the husband to pay
Rs. 85 per mensem. We understand that this has been the practice in the Parsi
Chief Matrimonial Court for a long time.

   7. In this appeal we are not directly concerned with the question whether the
original order of Davar, J. was valid. It was not appealed against and in this
appeal there are no cross-objections. Counsel for the respondent has contended
indeed that the order was not one which the Court had any power to make under
Section 34. But he does so, not with the view of attacking the order itself, but
in order to show that the considerations on which it has been held that an order
made under the corresponding section of the English Act is permanent and cannot
be varied, have no application in the present case. Those considerations apply
to orders securing certain payments by a deed or otherwise. The order we are
concerned with is a mere personal order to pay. This is undoubtedly a good
argument so far as it goes. Whatever view may be taken off the validity of
Davar, J.'s order, it is obvious in view of what I have said that the question
whether the order oan be varied or not cannot depend merely on the construction
of Section 34 or the corresponding English section. For instance, a case like
Motibai v. Motibai (1900) 24 Bom 465, which was referred to in the course of the
argument is of no assistance to us. There a husband had been ordered to pay to
his wife a certain sum by way of permanent alimony and the payment was secured
on his property. Russell, J. expressed the opinion that the order could not be
varied. B. J. Wadia, J. in his order in this case says that this was an obiter
dictum, and I gather that he dissents from it. But, in view of the authorities
to which I have referred, it would seem that Russell, J. was" perfectly right.
His opinion, however, has no bearing on the present case for he was dealing with
a different bind of order altogether.

   8. B.J. Wadia, J. naturally has not considered the question of the validity
of Davar J.'s order. No such question was argued before him; and we understand
there was little or no argument even on the question whether the Court has power
to vary the order. For the reasons which I have indicated I must confess that I
feel grave doubts as to whether the power to order a husband to make payments to
his wife by way of permanent alimony without the payment being secured on the
husband's property is conferred on the Court by Act 15 of 1865 or can be deduced
from its provisions. I feel graye doubts also as to whether there is any
inherent jurisdiction under which such a power may be exercised. In a previous
order, which was cited in the course of the argument (Suit No. 2 of 1929), B.J.
Wadia, J. referred to a passage in Halsbury apparently as authority for the
proposition that the practice of the English Courts may be applied to Parsis.
The cases cited in Halsbury are all decisions of the Ecclesiastical Courts or of
the Divorce Courts following the practice of the Ecclesiastical Courts, and they
were cases of judicial separation and not dissolution of marriage. But, as
counsel for the appellant has shown in his learned and interesting argument,
since the decision of the Privy Council in Ardaseer Cursetjee v. Perozeboye
(1856) 6 M.I.A 348 neither the old Supreme Court nor the High Court nor any
other Court apart from statute has had any jurisdiction to apply the English
Ecclesiastical' law or practice to matrimonial disputes between Parsis. If, as
we are given to understand, an amendment of Act 15 of 1865 is tinder
contemplation, this is obviously a matter which deserves consideration.

   9. Assuming, however, as I think we must for the purposes of this appeal,
that the original order of Davar, J. is a valid order, I have no hesitation in
holding that the Court has an inherent power to vary it on general principles.
As I have mentioned already, Section 35 of the Act governs all orders for
alimony. The Court, therefore, may impose any terms or restrictions which it
considers expedient. If alimony is not secured as provided in Section 34, and
there is merely a personal order to the husband to pay so much a week or month,
it would obviously be proper to provide that the amount might be reduced or
increased on good cause shown, and to reserve liberty to apply for a variation
of the order. Striotly speaking, perhaps, this should be done in the original
order, and we understand that is now the usual practice. But in the case of an
order which from its very nature cannot be intended to be immutable, it is not
unreasonable to hold that liberty to apply may be implied.

   10. This view, in my opinion, derives substantial support from the decision
of the Privy Council in Iswarayya's case (4). That was a case under Section 37,
Divorce Act 4 of 1869, which contains not only a provision for securing
permanent alimony on the property of the husband, but also a provision for a
personal order on the husband to pay a monthly or weekly sum, and a proviso
under which the order for such payments may be discharged, modified or suspended
if the husband should become unable to pay. The question before the Court was
whether such an order could be varied in the interest of the wife, i. e.,
whether the Court could order payment of a larger sum. It was held that the
Court had power to vary the order in this way, although the power is not
expressly given in the section or elsewhere in the Act, and the principal reason
for the decision is given at p. 356 of the report in Iswarayya's case (4):

     A power of this nature is, prima facie, not one which ought to be
exercisable once and once only; and, unless the wording of the Act is such as to
indicate beyond doubt that once the power in favour of the wife has been
exercised it is spent and gone for ever, their Lordships think that the section
should be construed in such a way as will keep the power on foot.

   11. I am of opinion therefore that the order made by B.J. Wadia, J. was
within his powers and that there is no substance in the appeal on that ground.
Nor, in my opinion, is there any ground for interference on the merits. It is
usual and not unreasonable to provide that payments by way of permanent alimony
should cease in the event of re-marriage of the wife. That was not done in the
present case, but it is a good ground, in my opinion, for reducing the amount of
alimony, and I see no reason to differ from B. J. Wadia, J's. view of what is a
fair and proper order in the circumstances of the case. In my view, therefore,
the appeal should be dismissed with costs.

   Tyabji, J.

   12.The parties were married on 15th September 1915, according to the law
relating to Parsi marriages. On 21st November 1927, a suit was brought by the
wife (the appellant) in the Parsi Chief Matrimonial Court in which the prayers
were for divorce or in the alternative for judicial separation, and for alimony.
On 31st January 1928, J.D. Davar, J. passed a decree for dissolution of the
marriage. J.D. Davar, J. on 6th July 1928, fixed in chambers Rs. 55 per month
for alimony pendente lite and Rs. 85 as permanent alimony from 1st February
1928. On 26th December 1934, the plaintiff remarried. The defendant-respondent
has also re-married. On 6th March 1935, the defendant took out a chamber summons
before B.J. Wadia, J. for reduction of the alimony, and it was reduced to Rs.
50. Two main questions were argued before us, (l) that B.J. Wadia, J. had no
power to vary Davar, J.'s order for maintenance, and (2) that assuming he had
the power, he exercised his jurisdiction wrongly and the amount of maintenance
should not have been reduced.

   13. It is desirable at the start to advert to the distinction observed in
England between permanent alimony after judicial separation, and maintenance
after dissolution of marriage and divorce. The distinction is one not only of
terminology. It is important for reasons affecting the substantive rights of the
parties. Historically speaking, the Ecclesiastical Courts in England exercised
their Ecclesiastical jurisdiction to separate a husband and wife a mensa et toro
without divorcing them. After such a judicial separation the parties could
lawfully live apart though the marriage tie was not absolutely severed. In such
oases the jurisdiction to grant alimony was possessed and exercised by the
Ecclesiastical Courts. Since the parties remained husband and wife, the grant of
alimony by the Ecclesiastical Courts was merely the enforcement of: the right,
which the wife had, to be supported by her husband. When in 1859 a new
jurisdiction, altogether to dissolve the marriage, was conferred on the Courts
in England, the situation was entirely altered. The right that the wife has to
be supported by her husband may continue while she continues to be his wife,
though they live separate. But rights and liabilities of a new species are
involved in an order that the former husband shall continue to maintain and
support the former wife after the marriage which made them husband and wife has
been dissolved. The question of making provision for the maintenance of the wife
after dissolution of the marriage had not arisen before the Ecclesiastical
Courts, since the jurisdiction to dissolve the marriage was itself new. The
Ecclesiastical Courts had not been concerned with making provision for a woman
who had ceased to be a wife: Iswarayya v. Iswarayya 1931 P.C

   234. The Parsi Marriage and Divorce Act mentions only alimony there is
nothing to indicate whether maintenance is or is not intended to be included in
alimony. The Parsi Chief Matrimonial Court, whose decree and order are in
question, is specially constituted with defined powers under Act 15 of 1865. The
preamble of the Act recites the necessity for defining and amending the law
relating to marriage and divorce among Parsis, and the expediency of making such
law conformable to the customs of the said community. The Act is subdivided
under seven heads, which include the following:

     Of Marriages between Parsis, (Ss. 3-14),

     Of Parsi Matrimonial Courts, (Ss. 15-26) and

     Of Matrimonial Suits, (Ss. 27-43).

   14. The first of these three heads contains substantive law relating to
requisites to the validity of Parsi marriages and penalties for disregarding
them. As regards the constitution and jurisdiction of the Parsi Matrimonial
Courts, it is provided that for the purpose of hearing suits under the Act,
special Courts shall be constituted: Section 15. The local limits of the
jurisdiction of the Courts are defined and ancillary matters are provided for.
So that the jurisdiction of each such Court is expressly limited (1) in respect
of its local limits, and (2) in that its jurisdiction is stated to be for the
purpose of hearing suits under the Act. Then follows the part headed "Of
Matrimonial Suits," which is thus subdivided: (a) For a deoree of nullity (Ss.
27, 28); (b) for a decree of dissolution in case of absence (S. 29); (c) for
divorce or judicial separation (Ss. 30-35); (d) for restitution of conjugal
rights (Ss. 36-43). The suit before Davar, J., evidently came under sub-division
(c) which covers Sections 30-35. For the present purposes the jurisdiction of
the Court therefore to hear suits under the Act (S. 15) has to be considered
with reference only to Sections 30-35. In other words, it may be taken that the
Court is specifically constituted for the purpose of hearing suits under
Sections 30-35 and it would seem to follow that the Parsi Chief Matrimonial
Court of Bombay has no jurisdiction material to the present case, unless it can
be brought under Sections 30-35. These sections contain provisions relating to
suits for having the marriage dissolved and grant of decrees for divorce and for
demanding judicial separation. The last three sections under this head (Ss.
33-35) deal with questions relating to alimony.

   15. Of the three sections that I have mentioned, Section 33 refers only to
alimony pendente lite. It only authorises the Court to order the husband to pay
reasonable sums monthly or weekly during the suit. Section 33 is clearly not
relevant. So that only Sections 34 and 35 are left for consideration. Section 34
empowers the Court on any decree for (a) divorce (after which the parties no
more remain husband and wife) or (b) judicial separation: (1) to order that the
husband shall secure by a deed to the wife such gross sum or monthly or
periodical payments of money as shall be deemed just, and (2) for that purpose
to require a proper instrument to be executed, and (3) to suspend the
pronouncing of its decree until such an instrument is executed. In case any such
order shall not be obeyed, the section provides two remedies: viz. (1) liability
to damages at the wife's suit, and (2) liability to a suit by a person supplying
her with necessaries. The other section Section 35, authorizes the Court to give
directions subserving any decree or order for alimony; it may (1) direct that
the alimony shall be paid either to the wife herself or to any trustee on her
behalf (2) impose terms or restrictions, and (3) appoint a new trustee. The
result material for the present purposes seems to be that the Court constituted
for hearing suits under the Act is specifically authorized to make an order, (1)
requiring a proper instrument to be executed to secure the sum or payments
deemed to be just in accordance with Section 34; (2) in cases in which any
decree or order for alimony has been made, to direct that the alimony be paid to
the wife herself or a trustee and to impose terms and restrictions: Section 35.

   16. The orders that may be made under these sections may be appreciated from
the effect given to similar provisions in England and in particular by the form
of instrument adopted for securing the sum or payment. The Matrimonial Causes
Act 1857 (20 & 21 Vic. c. 85), Sections 32 and 24, now the Judicature
(Consolidation) Act (15 & 16 Ceo V. c. 49), Section 190, sub-ss. (1) and (5)
correspond with Sections 34 and 35 of the Parsi Marriage and Divorce Act. But
the background of substantive law in England may be different from that
applicable to Parsis; and with regard to Parsis, questions relating to their
customs (to which the preamble refers) may have to be determined by evidence as
between the parties. Lord Russell in Iswarayya v. Iswarayya 1931 P.C 234 desired
it to be fully realized that as a general rule an Indian Act does not fall to be
construed in the light of statutes. enacted by another Legislature; but that the
position might be different in the case of an Act like the Divorce Act which
makes an express reference to the Court in England to which the relevant
jurisdiction of the Ecclesiastical Courts has been transferred, and to the
principles and rules on which that Court acts and gives relief. There is no such
reference in the Parsi Marriage and Divorce Act. Moreover, unless the
substantive law applicable to the Parsis by reason of their customs or
otherwise, is exactly in accord with the English law inherited by the Courts in
England from the Ecclesiastical Courts, and altered from time to time by
statutes in England, the effect of the section would be different in the two
cases. The Matrimonial Causes Act, 1857, (20 and 21 Vic, c 85), established in
England a new Court of Record and the jurisdiction in matters matrimonial then
vested in Ecclesiastical Courts in England was transferred to it. The order of
Davar, J. dated 6th July 1928, was that the respondent should pay to the
appellant Rs. 85 per month as an allowance after their marriage was dissolved.
The allowance is called permanent alimony by Davar, J. It is clear that it was
not such an order as is authorized by Section 34. It was not an order that an
instrument be executed to secure any sum or payment. Lord Russell in Iswarayya
v. Iswarayya 1931 P.C 234, speaking with reference to a section of which para. 1
is, with slight verbal changes, reproduced in Section 34, Parsi Marriage and
Divorce Act, said (p. 357):

     .... the Court was given power on a decree for dissolution to order the
husband to secure by deed to the wife a gross sum or an annual sum, and to
suspend the pronouncing of its decree until the deed had been executed. This
provision (which it will be observed took the form of a secured sum) is strictly
not alimony, though inaccurately so called in the marginal note to the section,
but permanent maintenance. Under that section, there was no power to make any
subsequent order. The section, by its terms, pointed to one order in relation to
one deed, pending the execution of which the dissolution decree could be
suspended.

   17. Lord Russell proceeds to observe that the section was intended to be
brought into operation against a husband who had property on which the payment
of a gross or annual sum could be secured, and that it could have no effective
operation against a husband who had no such property. The husband without having
any such property may be in a position to make a monthly or weekly payment to
the wife during their joint lives. But such ability on the part of a husband,
who has no such property, would not enable the Court to exercise the power under
Section 34; the Court could not effectively order him to execute such an
instrument as Section 34 contemplates, since the instrument requires the
existence of property on which the payment may be secured. In my opinion, Davar
J.'s order clearly cannot be brought under Section 34. Nor does Section 35
authorize thecnaking of a decree or order for alimony. It only authorizes
directions of the nature I have indicated being given in oases where a decree or
order for alimony has been made. No doubt, it is assumed that a decree or order
for alimony may be made. But the only decrees or orders having reference to
alimony or maintenance that the Act specifically authorizes are: (1) orders for
payment during suit, and (2) orders to execute an instrument for securing
payments. So that if the authority of the Court to make decrees or orders for
alimony is to be confined within the four corners of the Act, then such
directions as Section 35 contemplates can be given only where alimony is ordered
pendente lite, or the directions may take the form of appropriate provisions in
the instrument under Section 34.

   18. I am, in any case, unable to find any express provisions in the Act
authorizing such an order as was made by Davar, J. an order that periodical
payments should be made by the husband to the wife after dissolution of
marriage. I have already stated that in the examination of the Parsi Marriage
and Divorce Aot, if any light is to be sought from English decisions, there is
necessity for caution, because of the difference in the substantive provisions
of the English law and the law applicable to the Parsis. The English law is to
be found, I presume, in the precedents and statutes, whereas the Parsi law may
have to be derived from the evidence of their customs. But subject to this it is
useful to turn to concrete examples of how Section 34 operates in practice. Thus
in Burroughes v. Abbott (1922) 1 Ch 86 the Divorce Court on making a decree
absolute for dissolution of marriage, had on 25 th November 1907, ordered the
husband to secure to the wife annual payments for life. The deed was executed on
or about 20th July 1909. 12 years lateron 17th November 1921 a part of the deed
was held to be void in view of the prohibitions of the Income-tax Acts,
notwithstanding that the deed was executed in supposed obedience to an order of
the Court. It was also found that the deed did not in fact conform to the
Court's order and did not carry out the clear intention of the Court though the
counsel who settled it believed that he had settled it in strict compliance with
the order.

   19. In a considered judgment P.O. Lawrence, J. held that the plaintiff could
enforce his right to have the deed put into proper formby rectificationso as to
make it conform to the order and to effectuate the intention of the Court. With
reference to making an order for rectification (which thus became necessary) it
was admitted without serious contest that Lawrence, J. sitting in the chancery
division had jurisdiction. Yet Lawrence, J. doubted the propriety of his
exercising that jurisdiction. As however all the parties were desirous of
avoiding expense and delay, Lawrence, J. consulted the President of the Probate,
Divorce and Admiralty Division and exercised the jurisdiction, the President
having intimated his agreement with that course and his consent, so far as his
consent would be useful. Prom the dates I have mentioned it appears that the
deed was dated 20th July 1909, about 18 months after the order to execute it,
and it was ordered to be rectified on 17th November 1921. The deed was
elaborately drawn providing no doubt for all the contingencies that the
conveyancing counsel could foresee. Obviously a deed so elaborately drafted
could not be altered from time to time in the same manner as a simple order that
fixed sums should be paid periodically. Considerations making orders under
Section 34 unalterable do not therefore assist the decision of this case.

   20. It was then argued that Davar, J. could have derived jurisdiction to make
the order only under Section 34; and that unless it can be brought under that
section, it was made without jurisdiction. The question whether Davar, J.'s
order was within his jurisdiction does not however arise before us. Neither
party can question its validity. The respondent could have, but did not, appeal
from it. Moreover, he relied upon it as a valid order when he applied to the
Court for a reduction under it The appellant obviously cannot object that the
order in her favour was without jurisdiction. Had the question been open to the
parties, it would, it seems to me, have depended on two subsidiary questions:
(1) whether by the substantive law applicable to the Parsis an order for payment
of periodical payments by way of permanent maintenance can be made against a man
in favour of a woman after the marriage between them has been dissolved. If this
question is answered in the affirmative, then (2) whether the Parsi Chief
Matrimonial Court by its constitution was authorised to exercise jurisdiction in
respect of such substantive rights and liabilities.

   21. As it is, I need not express any opinion on the question whether an order
by the Parsi Chief Matrimonial Court at Bombay for periodical payments of money
by way of permanent maintenance after dissolution of marriage can be justified
on any grounds such as that the preamble of the Act refers to the customs of the
Parsi community, and that the practice has been to make such orders in a Court
in which the customs of the Parsis would be known; and whether the terms of
Section 35 contemplate a decree or order for periodical payments by way of
permanent maintenance after divorce. As between the parties, it must, it seems
to me, be assumed that the Court presided over by Davar, J., had jurisdiction

     to make an order on the husband for payment to the wife of such monthly [or
weekly] sums for her maintenance and support as the Court may think reasonable,

   and that the jurisdiction was validly exercised by an order being made in
chambers. The words in which I have formulated the jurisdiction attributable to
the Court are taken from Section 37, Divorce Act, (4 of 1869) which itself is
derived from the Matrimonial Causes Act of 1866 (29 and 30 Vic. c. 32. Section
1). The earlier part of Section 37, Divorce Act, corresponds with Section 34,
Parsi Marriage and Divorce Act. But the clause, which formulates the authority
to order such periodical payments as Davar, J. ordered, does not form part of
Section 34, Parsi Marriage and Divorce Act. Nor do the powers expressly
conferred on the Parsi Chief Matrimonial Court includeas the examination of
Sections 34 and 35 showsany powers that may be expressed in terms of that
clause. Nevertheless, for the reasons that I have stated, as between the parties
to the present appeal, Section 34 must, in my opinion, be read as though such a
clause were included in it. The jurisdiction of a Court having power to order
periodical payments for maintenance in addition to the power contained in
Section 34, Parsi Marriage and Divorce Act, must therefore be considered with
reference to the power of modifying orders for periodical payments. It was
strenuously argued that judicial orders must, on general principles, be final:
that the Court cannot assume jurisdiction to modify orders after they have been
made. The position in England prior to 1907 is thus stated by Lord Russell (p.
358):

     Accordingly, in 1869, the position under the English Acts, in relation to
making provision for the permanent maintenance of a wife after a dissolution
decree stood thus: there was power to order such provision in the form of
securing a gross sum or an annual sum; there was a further power to order such
provision in the form of ordering payment by the husband of monthly or weekly
sums; there was power in the husband to apply for a modification in his favour
of this last-mentioned order; there was no power in the wife to apply for any
increase in the provision made for her. Such a power was conferred upon the wife
for the first time [in England] by the Matrimonial Causes Act, 1907.

   22. The effect of a power in the Court to order periodical payments was
explained by Lord Russell on pp. 355-56 in view of general principles. Applying
therefore the language of Lord Russell as far as possible to the position with
which I conceive that we have to deal, I may say that the power which I must
attribute to the Court in this case is a power to make an order on the husband
to pay to the wife monthly sums for her maintenance and support. The amount
thereof is made to depend upon the Court's opinion of what is reasonablean
opinion which must obviously depend upon facts which may vary from time to timea
power of this nature is prima facie not one which ought to be exercisable once
and once only. Lord Russell proceeds (p. 356):

     and, unless the wording of the Act is such as to indicate beyond doubt that
once the power in favour of the wife has been exercised it is spent and gone for
ever, their Lordships think that the section should be construed in such a way
as will keep the power on foot.

   23. He next examines the two features of the Act which according to the
contention of the then appellant indicated that the power once exercised was
spent and gone for ever, and the conclusion is that relevant though the two
features were to the appellant's contention, they were insufficient to sustain
it. One of these relevant but insufficient features was that while an express
proviso for reduction had been inserted 'in favour of the husband, no similar
provision had been inserted in favour of the wife for enhancement. The proviso
(to Section 37, Divorce Act) in favour of the husband is to this effect (p.
355):

     Provided that if the husband afterwards from any cause becomes unable to
make such payments, it shall be lawful for the Court to discharge or modify the
order or temporarily to suspend the same as to the whole or any part of the
money so ordered to be paid, and again to revive the same order wholly or in
part, as to the Court seems fit.

   24. As to this proviso, Lord Russell said (p. 356):

     The express proviso, while it may be said to suggest the exclusion of a
power to increase in favour of the wife, is certainly not conclusive. Indeed,
its insertion in the section might well be accounted for on the following
ground: namely, that, but for its presence, it might have been argued that
husbands could not be applicants to the Court under a section the sole object of
which was to benefit wives.

   25. I must refer here to the observations of Lord Russell on the other branch
of the questionalimony after judicial separationfor though we have to deal with
maintenance after divorce, one feature is common to the case now before us and
to the jurisdiction to grant alimony after judicial separation possessed by the
Court in England. In both cases the jurisdiction is derived not under the
express wording of a statute, but in England under the old Ecclesiastical law,
and in the case before us in the indeterminate manner that I have explained.
Lord Russell at p. 360 says:

     If it had been intended that the Courts in India, acting under this Act,
should not have, in relation to a wife who had obtained a decree for judicial
separation, the power which the Court in England enjoyed, of increasing the
amount of her permanent alimony as and when the circumstances justified an
increase, but that they should be restricted to the making of one order only for
permanent alimony, their Lord ships feel that this intention would have been
declared in express and unequivocal terms.

   26. Lord Russell also points out that since the Indian Divorce Act 4 of 1869
includes alimony after judicial separation and maintenance after divorce, in the
same provision, the section may have conferred in 1869 upon the Courts in India
a power to increase maintenance, a power which the Court in England did not
enjoy until 1907. As the result of the general considerations applicable to a
power to order periodical payments their Lordships were of opinion (pp. 356-57)

     that upon the true construction of Section 37, where a decree of judicial
separation has been obtained by the wife, and the District Judge has made an
order op the husband for payment to the wife of a monthly or a weekly sum by way
of permanent alimony, there is still power in the Court to make an order or
orders for the payment of larger sums by the husband if the circumstances are
such as to justify an increase in the amount of the alimony.

   27. This result, I have already stated, was arrived at on the principle that
a poweu to make an order on the husband periodically to pay to the wife sums for
her maintenance and support,the amount depending upon the Court's opinion of
what is reasonablean opinion that must depend on facts which may vary from time
to time, that a power of this nature is prima facie not one which ought to be
exercisable once and once only. And this general principle was held to prevail
so as to permit an enhancement in spite of the express statutory provisions in
favour of the husband that the amount may be reduced, and in spite of the
absence of any such provision in favour of the wife that it may be enhanced. The
principle is applicable irrespective of the consideration whether there was a
divorce or judicial separation: and irrespective of whether the form of the
order provided for a subsequent application for variation of the amount ordered
to be paid. It seems to me that the general principle stated by Lord Russell
must govern the power authorizing orders for payment of maintenance against the
husband, whether the power is derived from the legislature or from custom
governing the Parsis oras in the present casewhere the source whence it is to be
derived is in doubt and dispute, and the Court must leave the source of the
power undetermined, but must proceed on the basis that such a power exists,
howsoever derived. This view seems to me to be strengthened by some of the
observations based on historical considerations which were made by Lord Russell
as being confirmatory of the view formed by their Lordships simply on the true
construction of the section corresponding to Section 34, Parsi Marriage and
Divorce Act (viz., Section 37. Divorce Act, 1869). Lord Russell in dealing with
orders for alimony after judicial separation pointed out that such orders
differed from orders for maintenance after divorce in that orders for alimony
were made under an old jurisdiction exercised by the Ecclesiastical Courts, but
orders for maintenance were made under a new jurisdiction created for the first
time in 1857. Under the old jurisdiction for granting alimony after judicial
separation (p. 359):

     The Ecclesiastical Courts had and exercised power to order variations in
the amount of alimony from time to time, either by way of increase or reduction.
'Where there is a material alteration of circumstances, a change in the rate of
alimony may be made. If the faculties are improved, the wife's allowance ought
to be increased; and if the husband is lapsus facullatibus; the wife's allowance
ought to be reduced': De Blaquiere v. De Blaquiere (1830) 3 Hagg Ecc Rule 322.

   28. I need not refer in detail to the decisions on which Sir Jamshed Kanga
relied. Their effect is stated in Lord Russell's observations which I have cited
so fully. I have cited them to preclude misapprehension. The Court cannot be
lightly assumed to have powers of modifying its final orders. These particular
orders (even though made in a form of seeming finality) have in themselves
elements of periodicity and liability to reduction and enhancement. It is only
necessary to refer to the inferences counsel wishes us to draw from the
authorities. His argument shortly was that, (1) the powers of the Chief
Matrimonial Court are strictly confined within the terms of the Act, (2) that
the Court has no jurisdiction beyond that conferred on it by the Act, (3) that,
therefore, the order of Davar, J. (since as between the parties its validity
cannot be questioned) must be brought within the terms of the Act, (4) that the
order can be brought only under Section 34, and (5) that Section 34 authorizes
only one order which cannot be subsequently altered. The first two heads of this
argument seem at first sight incontrovertible: the Court can have only the
powers conferred on it by the Act constituting it. It cannot arrogate to itself
any other powers. But the proposition is sought to be applied in a manner which
loads it with the whole of the substantive law. The argument addressed to us on
the basis of these propositions involves an assertion that it is not proper
first to turn to the Act for determining whether the jurisdiction to deal with
questions relating to alimony and maintenance is conferred on the Court, and if
so, then in the second place, to adjudicate upon the questions over which it has
jurisdiction in accordance with the substantive law. The Act, it is true,
contains provisions of both kinds, substantive as well as adjective. But that is
no ground for assuming against the clear indications of the Act, that because
Section 34 provides for the case where the husband has property on which the
payment of a gross or annual sum may be secured, therefore in no other case and
in no other manner can the husband be held liable for rovidingalimony or
maintenance. Whether under the substantive law there are any such rights and
liabilities as are claimed in respect of maintenance and alimony, must be
determined by the Court having jurisdiction over the matter; what the
substantive law is in respect of these rights must be determined no doubt
consistently with the Act, but not on the basis that the Act itself contains the
whole of that law.

   29. It is argued that the Parsis are governed by the English law under the
terms of the Acts applicable to them in Bombay, and that the English law as
applicable to them must be the law prevailing in England before 1774; that
obviously the statute of 1907 could not be deemed to be a part of that English
law by which the Parsis are by the operation of the Indian statute passed in the
middle of the previous century deemed to be governed. This (it is argued) must
be the more so with reference to a statute like that of 1907, under which for
the first time a new powerthe power to increase the amount of permanent
maintenance ordered to be paid on a decree for dissolution, was conferred on the
Matrimonial Courts established in England 50 years beforein 1857; that
consequently the jurisdiction to alter the order of maintenance, once it has
been made, is not conferred upon the Parsi Matrimonial Court.

   30. The jurisdiction of the Parsi Chief Matrimonial Court must no doubt be
confined to matters falling within the terms of the Act constituting it, in the
sense that it cannot exercise jurisdiction in respect of any matters with which
it is not authorized to deal. But the substantive law delivered to that Court by
the SovereignI am using the language that Sir Erskine Perry, C.J. used in
1847for guidance as to the manner in which the jurisdiction conferred on it
should be exercised is quite a distinct question. There is not only nothing to
show that the Act is exhaustive in respect of the substantive law: the
indications are the other way. The argument for the appellant also overlooks the
facts some of which are adverted to by Lord Russell: (1) that the Ecclesiastical
Courts had and they exercised the jurisdiction of granting permanent alimony
after judicial separation, (2) that the question relating to maintenance after
dissolution of marriage stands on a totally different footing, from alimony
after judicial separation, equally in regard to the substantive law, in regard
to the jurisdiction of the Court and in regard to the historical development in
England; and (3) that the Parsi Marriage and Divorce Act deals with the two
situations that arise after divorce and after judicial separation in the same
sections and in the same terms, in terms which would be appropriate if the two
situations had always been the same so far as the Parsis were concerned, both in
regard to the substantive law and in the procedure to be followed for enforcing
the rights relating to them. So far as England is concerned the jurisdiction to
grant alimony was inherited by the Divorce Courts when they were created; and
the jurisdiction was new with reference to maintenance after divorce, the power
to divorce being itself a new jurisdiction created by statute. This development
of jurisdiction between 1857 and 1907 in regard to grant of maintenance after
divorce till it came abreast of the jurisdiction to grant alimony after judicial
separation, is a matter in regard to which the Parsi law had no necessary
parallel with the English law. The Parsi substantive law (in India) must stand
on its own statutory provisions and the customs of the Parsis.

   31. In short the attempt to strangle the respondent's case by subjecting
orders for maintenance to the rigidity of S 34 fails, because it cannot be
assumed that such orders may not find an avenue for themselves in the
substantive law of the Parsis without traversing Section 34. When an application
is made to the Court that an order for periodical payments of money be made, the
Court, (after satisfying itself that its constitution permits it to deal with
the question at all) must turn to the substantive law for determining whether
such an order as is prayed for ought to be made in the particular case. Lord
Russell deduces from the very nature of orders for periodical payments by way of
maintenance that the jurisdiction to make them is of such a nature that it ought
not to be exercisable once and once only: in the absence of express provisions
to the contrary, if the Court has the power to order such periodical payments,
it must have the power to vary the orders from time to time. Since as between
the parties it must be assumed that the Parsi Chief Matrimonial Court had power
to order payments of periodical sums by way of permanent maintenance by the
respondent whose marriage had been dissolved, therefore it must, in my opinion,
be assumed that the Court had power also from time to time to increase or
decrease the amount so ordered to be periodically paid. If the power to reduce
the amount existed in the Court, then no reason has been shown to us for
interfering with the learned Judge's exercise of his jurisdiction. In my opinion
the appeal ought to be dismissed with costs.