Tehmi Dinyar Mistry vs Dinyar Kaikhushroo Mistry on 17 September, 1975

    Tehmi Dinyar Mistry vs Dinyar Kaikhushroo Mistry on 17/9/1975

JUDGMENT

   Sawant, J.

   1. This first appeal is filed against the order dated 7-7-1972 passed by the
Single Judge of this Court in Matrimonial Suit No. 36 of 1970 in the Parsi Chief
Matrimonial Court at Bombay.

   2. The few facts leading to this appeal are as follows:-

   3. The appellant is the ex-wife of the respondent. She had filed a suit being
Matrimonial Suit No. 36 of 1970 for a decree of divorce or in the alternative
for a decree of judicial separation and for a permanent alimony against the
respondent under the provisions of the Parsi Marriage and Divorce Act, 1936
(hereinafter referred to as the said Act) in the Parsi Chief Matrimonial Court
at Bombay. The Court by a decree dated 31-3-1971 dissolved the marriage between
the parties under Section 35 of the said Act and granted divorce to the
plaintiff-wife on the parties further the Court ordered the defendant-husband to
pay to the plaintiff-wife on or before the 30th day of April 1971, a lump sum of
Rs. 15,000/- as and by way of permanent alimony and also dismissed the
plaintiff's petition for interim alimony. The present appellant thereafter on
28-1-1972 filed a petition in the Parsi Chief Matrimonial Court at Bombay
praying for a direction to the respondent, her ex-husband, to pay the petitioner
a sum of Rs. 800/- per month as alimony from 28-1-1972. The said petition came
up for hearing before Justice Madan and by his order dated 7-7-1971, the learned
Judge dismissed the petition by making the following order:-

     "Even assuming an application for payment of a monthly sum by way of
permanent alimony lies after a consent order embodied in the decree providing
for payment of a gross or lump sum by way permanent alimony to the wife, which
sum has been paid, the petitioner had failed to show any such change of
circumstances after the date of the order which would entitle her to come to
Court and get the consent order varied and thus obtain from her husband further
permanent alimony by way of monthly payments in addition to the lump sum or
gross sum already received by her by way of permanent alimony."

   It is this order which is challenged inn this appeal.

   4. Mr. Mistry, who appears for the appellant, has in the first instance
contended that the learned Judge was in error in holding that the petition filed
by the appellant was not a petition for fixing monthly alimony and proceeding on
the footing that it was only a petition for variation or modification of the
decree dated 31-3-1971. His second contention was that even assuming that the
petition was for variation or modification of the said decree dated 31-3-1971,
the learned Judge did not take into consideration the change of circumstances of
the parties. He therefore urged that the impugned order was both contrary to
facts and law and therefore liable to be set aside.

   5. In support of his first contention. Mr. Mistry urged that the Court had no
power or jurisdiction to direct the payment of a lump sum amount towards
permanent alimony and therefore the direction contained in the decree dated
31-3-1971 was contrary to law. He reinforced this argument by submitting that
this amounted to the giving up of the right to further maintenance on the part
of the wife and this being opposed to public policy could not be sustained in
law. For his aforesaid submission he relied upon a decision of this Court
reported in 47 Bom Lr 514 : AIR 1945 Bom 537 Pirojshah Bharcha v. Hirabai
Bharucha.

   6. A perusal of the petition filed by the appellant shows that she has
admitted therein that the amount of Rupees 15,000/- was paid to her in lump sum
as and by way of permanent alimony and she had received the said sum after the
passing of the said decree. Her case in the petition however is that on account
of debts, which she had incurred prior to the passing of the said decree dated
31-3-1971, she had to pay Rs. 10,4000/- to various relatives and friends from
whom she had taken various loans and there remained only a balance of Rs. 4,
363/- with her. The said amount together with an amount of Rs. 636/- given to
her by her brother was deposited by her in a fixed deposit in a limited company
which would give her an income of Rs. 137.50 every three months by way of
interest thereon. This amount was insufficient for her maintenance. She has also
alleged in the petition that the respondent had received a large sum as and by
way of provident fund and other dues on his retirement from the military, which
was admittedly in the year 1969 and that he was drawing an income of Rs. 2,350/-
p. m. Taking into consideration therefore her own position vis-a-vis the
position of the respondent, the respondent should be directed to pay to her Rs.
800/- per month by way of alimony. It was also submitted by Mr. Mistry that this
petition was in a sense a petition for fixing monthly alimony for the first
time. No monthly alimony was fixed by the Matrimonial Court at any time before
and as such a petition was maintainable under S. 40(1)(b) of the said Act. This
contention is both contrary to facts as well as law. As has been pointed out
earlier the decree dated 31-3-1971 does mention the fact that by consent of the
parties a lump sum of Rs. 15,000/- was to be paid by the respondent-defendant as
and by way of permanent alimony to the petitioner-plaintiff. There if no dispute
that this amount was received by the petitioner-wife as provided in the said
decree. It is therefore not correct to say that no alimony was paid to the
appellant and by the present petition the appellant was seeking for the first
time to get her alimony fixed from the Matrimonial Court. As regards the
contention based on the power of the Matrimonial Court to award a lump of money
as permanent alimony to the wife, we find from the provisions of Section
40(10)(a) of the said Act, that the Court has power to secure to the wife 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. The relevant
provisions of the said section may be usefully reproduced as follows:-

     "40. (1) The court may, if it shall think fit at that time of passing any
decree under this Act or subsequently thereto on application made to it for the
purpose, order that the husband shall while the wife remains chaste and
unmarried.

     (a) to the satisfaction of the Court secure to the wife such gross sum or
such monthly or periodical payment of money for a term not exceeding her life
has, 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."

   7. Mr. Mistry is therefore wrong when he says that the Court had no power to
grant a lump sum by way of permanent alimony to the wife. Mr. Mistry then
contended that the aforesaid provisions of the said Act show that the Court has
power only to secure a gross sum, but has no power to hand over or direct the
handing over of the money to the wife. We should have thought that handing over
of the lump sum or the gross sum is the best way to secure the amount to the
wife. We are therefore not impressed by this argument advanced on behalf of the
appellant-wife. We are fortified in this view that we are taking of the
aforesaid provisions, by a decision of this Court reported in ILR 39 Bom 182 :
AIR 1915 Bom 50 Miss Balnche Somerset Taylor v. Charles George Bleach and
Charles George Bleach v. Miss Balanche Somerset Taylor. The said decision is on
the provisions of Section 37 of the Indian Divorce Act. In that case by way of
permanent alimony of lump sum was awarded to the wife under the provisions of
the said section. Although the question raised in that case was slightly
different viz., as to whether the gross sum of money paid to the wife by way of
permanent alimony should belong to her absolutely or should be limited for the
period of her life, the Court held that the gross sum paid to the wife under the
provisions of the Said Section 37 of the Indian Divorce Act belonged to her
absolutely and was not confined to the period of her life. Since the provision
of Section 40 of the Parsi Marriage and Divorce Act, 1936, are similar to the
provisions of Section 37 of the Indian Divorce Act, it will be relevant to quote
here a few observations which were made by Scott, C. J., who delivered the said
judgment of the Division Bench, so far as they are relevant for our purpose. The
relevant observations are as follows:-

     "The material clause of Section 37 of the Divorce Act is the third. It
gives the Court power to 'order that the husband shall, to the satisfaction of
the Court, secure to the wife such gross sum of money, or such annual sum of
money for any term not exceeding her own life, as having regard' etc.

     As the sentence is punctuated in the state publications of the Act it seems
to me to be clear that the words 'for any terms not exceeding her own life'
qualify "annul sum' and do not qualify, 'gross sum'. If so assuming a gross sum
to be available, how can be better secured to the wife than by paying it over to
her?

     In my opinion, therefore, the District Judge had power to make the order
for payment of a lump sum."

   8. "Mr. Mistry's reliance upon the decision of this Court reported in 47 Bom
LR 514 = (AIR 1945 Bom 537) (supra) is misplaced. We find from the facts of that
case that they have nothing in common with the facts of the present case. In
that case, the wife had given up her right for alimony completely and for all
time to come by consent terms and it was also provided further in the consent
terms that the wife would not claim alimony and agreed not to make any such
claim in future. The learned single Judge who decided the said case held that
the giving up of the right to maintenance permanently and for all time to come
was against public policy and therefore he held that the wife's application for
setting aside the said consent terms on the ground that they were not binding on
her was maintainable. Obviously the ratio of the decision in that case will not
apply to the facts of the present case where an order has been made securing an
amount to the wife as provided by Section 40(1)(a) of the said Act itself, as
has been pointed out above.

   9. We therefore reject the first contention raised by Mr. Mistry that the
present petition was a petition for fixing the alimony for the first time and
the Court had no power to fix a lump sum by way of permanent alimony. It may
further be noted that it is not disputed that the said lump sum towards the
permanent alimony was fixed by the consent of the parties.

   10. As regards the second contention that the petition in question should be
treated as a petition for variation or modification of the said decree for
maintenance under Section 40(2) of the said Act, Mr. Mistry was unable to pint
out to us as to in what respect the circumstances of the parties had changed
after 31-3-1971 when the consent decree in question was passed. His whole case
was, both as stated in the petition as well as in the arguments advanced, that
before the decree in question was passed, the petitioner had incurred certain
debts and she had to pay not less than Rs. 10,400/- towards payment of the said
debts out of the lump sum of Rs. 15,000/- which was awarded to her as permanent
alimony and therefore the balance left with her was not sufficient to maintain
her in future. He also contended that the respondent was comparatively in an
affluent condition and he had received a substantial amount as provident fund
and other dues from the military on his retirement and at present was employed
as a steward in the Royal Turf Club, Calcutta, drawing a monthly income of about
Rs. 2,000/-. In this connection, he invited our attention to the annexes to his
affidavit dated 13-3-1972 filed in reply to the petition wherein the respondent
has shown the statement of his income and expenditure. As regards his contention
that the petitioner had to pay debts of Rs. 10,4000/- out of the sum of Rs.
15,000/- which she received by way of permanent alimony, admittedly according to
her, on the date the said decree was passed, she was indebted to various persons
in the said sum of Rs. 10,400/-. We will have therefore to presume that when
this decree was passed, assuming that her contention that she was so indebted is
correct, she was aware of her debts and she had agreed to receive the said sum
of Rs. 15,000/- in spite of her said indebtedness. It cannot therefore be said
that the said indebtedness of hers is a circumstance which occurred after the
passing of the said decree and therefore a change in her circumstance within the
meaning of Section 40(2) of the said Act. As far as the fund available with the
respondent and his income is concerned, Mr. Mistry could not deny the fact that
whatever amount the respondent had received as his retirement dues were received
by him in the year 1969 when he retired. He also could not dispute the fact that
the respondent was employed as a steward in the Royal Turf Club, Calcutta, on
the date the decree in question was passed. Therefore it cannot be said that
there is any change in the financial circumstances of the respondent between the
date the decree was passed and the date the petition was filed or for that
matter before it came up for hearing before the learned Matrimonial Judge. In
the circumstances even assuming that the present petition filed by the appellant
has not made out any case of change of circumstances of either party and
therefore on that ground also is not tenable. The learned Judge by his impugned
order had held accordingly, and we see no reason to interfere with the finding
given by the learned Judge. We are therefore unable to accept the second
contention also, advanced on behalf of the appellant.

   11. In the result, we find that there is no substance in this appeal and we
dismiss the same. In the circumstances of the cease there will be no order as to
costs.

   12. Appeal dismissed.