Ivan Erasmus vs Mrs. Zena Erasmus on 11 January, 1982

    Ivan Erasmus vs Mrs. Zena Erasmus on 11/1/1982

JUDGMENT

   Deoki Nandan, J.

   1. This and the connected appeal both arise from an order dated 29th Sept.,
1981 of the court of the IVth Add), District Judge, Allahabad awarding
maintenance pendente lite to the respondent wife at the rate of Rs. 600 per
month under Section 36 of the Divorce Act, 1869 (hereinafter referred to as the
'Act') in a suit for divorce instituted by the appellant against the respondent.
The suit was filed on 13th Dec. 1978 and the application for maintenance
pendente lite was made on 14th Jan. 1979. The order under appeal declares that
the respondent is entitled to recover the sum of Rs. 19,800 by way of alimony
pendente lite from Jan. 1978 up to Sept. 1981, on 29th day of which the order
under appeal was passed. The year, 1978 specified in the order appears to be a
mistake for the year 1979, for the amount of Rupees 19,800 works out to be
maintenance for 33 months at the rate of Rs. 600 per month and that would cover
the period Jan. 1979 to Sept. 1981 both inclusive.

   2. The husband, who is the petitioner for divorce in the lower court is the
appellant in this court in the main First Appeal No. 362 of 1981. After service
of notice of that appeal the respondent wife has preferred the connected First
Appeal No. 449 of 1981 claiming that in fixing the amount of maintenance the
court below has ignored the requirement for maintenance of the minor daughter
Nancy and that the order under appeal may be modified by enhancing the amount of
maintenance to Rs. 1,000 per month which was the amount claimed in the
application for maintenance in the court below, and also to award special costs.

   3. A stay application was made when the appeal was presented before me. While
directing issue of notice of the appeal and the stay application I had fixed
16th of Dec., 1981 for the hearing of the appeal as well as the stay application
and had passed the following interim order :--

     "In the meanwhile, the execution of the order appealed from shall remain
stayed provided the appellant remits by crossed bank draft payable to the
respondent at her address, the sum of Rs. 3,600 within one month from today and
continues regularly to pay the sum of Rupees 300 per month for the period
commencing (from) 1st Oct., 1981 by the 15th day of the month following that for
which it is due, by money order directly to the respondent during the pendency
of the divorce proceedings between the parties. In case of default in compliance
with either of these conditions, the stay order shall stand discharged
automatically and the divorce proceedings in suit No. 177 of 1978 of the
District Court, Allahabad shall remain stayed so long as the above conditions
are not complied with by the appellant."

   4. Having heard learned counsel for the parties and having examined the
material on the record I have come to the conclusion that the said interim order
should be made absolute not only for the duration of the appeal in this Court
but also as the proper order which should have been passed under Section 36 of
the Act by the trial Court for the duration of the divorce suit before it.

   5. I must at the outset make it clear that an order under Section 36 of the
Act, does not decide the rights of the parties. It is meant only to enable an
indigent wife to maintain herself until final orders are passed on the original
petition for divorce or judicial separation or other matrimonial relief. The
object is to enable the wife to live, and to defend and prosecute the case until
the rights of the parties are finally decided by the court. The order is of a
summary nature and meant to advance the. cause of justice as an order passed in
aid of the final orders adjudicating the rights of the parties on the original
petition for divorce or Judi-cial separation or other matrimonial relief. An
order under Section 36 of the Act is an interim order which lapses with the
final decision of the original suit, An order of similar nature passed under
Section 24 of the Hindu Marriage Act is not even appealable under Section 28 of
that Act as it now stands after the amendments made by the Matrimonial Laws
(Amendment) Act, 1976, although under the Divorce Act, 1869, the order continues
to be appealable under Section 55 thereof.

   6. Looking at the nature of the order under Section 36 of the Act and the
object of passing it the first thing which struck me was that the order of the
lower court directing the husband to pay Rupees 19,800 as arrears of maintenance
pendente lite tended to defeat rather (than) to advance the object for which it
was passed. The object and the purpose of an order under Section 36 of the
Indian Divorce Act is not to settle old scores between the parties but to
advance the cause of justice and to put an indigent wife into funds for a speedy
and proper adjudication of the dispute raised by the original petition for
divorce or judicial separation or other matrimonial relief, Instead of advancing
that object or purpose, the direction to pay Rs. 19,800 tends to obstruct it,
for, the appellant husband's say is and there is evidence in support of his
assertion, that he is out of regular employment and cannot possibly pay that
amount. Non-payment of the amount of maintenance pendente lite by the husband
normally leads to a stay of the original petition for divorce or judicial
separation or other matrimonial relief, where the husband is the petitioner. It
may even lead to execution proceedings for recovery in case the husband is
recalcitrant. Thus, although a court has the jurisdiction to order payment of
maintenance pendente lite from the 'date of the making of an application for the
same, the court should, before fixing the date from which the amount of
maintenance pendente lite is to be paid, take a reasonable and practical view of
things rather than to act mechanically. One consideration in directing the
payment of arrears is the indebtedness of the wife for necessities obtained by
her during the pendency of such an application. In a case where it is not shown
that the wife had to borrow money for obtaining the necessities of her life, an
order for past maintenance pendente lite should not normally be passed. In the
present case there was nothing to show that the wife had run into debts for
obtaining the necessities of life during the long period of 33 months which
elapsed between the making of her application and the passing of the order for
maintenance pendente lite. It is regrettable that court proceedings even of this
nature do some times take all this long to be disposed of by our courts, but
even in a case where the blame for the delay could be put on a party, justice in
these matters had to be remedial and not retributive; and in a case where the
blame for the delay cannot be put on either of the parties but has to be put on
the system, and must, therefore, be shared by the court also, a party cannot be
loaded with an order for payment of a large sum of the kind that was passed in
this case, simply tee-cause the wife's application for maintenance pendente lite
took the long period of 33 months to be disposed of. The amount of Rs. 3,600
which was fixed by me by my interim order dated 16th Oct., 1981 was required to
be paid by bank draft to the respondent wife within one month from the date of
its passing. I am informed that the amount has been paid. This leads me to think
that the amount fixed was such as the husband could reasonably pay.

   7. As to the amount of monthly maintenance fixed by the lower court, it
appears that the sum of Rs. 300 per month was fixed for the wife's own
maintenance and the sum of Rs. 150 per month each for the maintenance of the two
minor sons Terrance and Kavin. So far as Section 36 of the Act itself is
concerned, it does not provide for payment of maintenance pendente lite for the
children. It speaks of payment of alimony pendente lite to the wife only. So far
as children are concerned a provision for their custody, maintenance and
education etc., could be made under Section 41 of the Act. So far as the
daughter Nancy is concerned, it was said in the application that she was
studying in La Martinier Girls School at Lucknow as a boarder and it appears
that the expenses of her education and hoard were being met by the husband when
the application was made in the lower court. From the wife's affidavit filed in
support of an application made in this Court and in support of the connected
appeal praying for enhancement of the maintenance allowance, it appears that the
husband did not put Nancy back into the School in Jan. 1979, nor did he assure
payment for the continuance of her education, although the husband's mother paid
Rs. 25 towards the fee, and in response to a letter received from the School,
the wife met the principal of La Martinier Girls School, Lucknow, and was able
to persuade her to grant free-ship to Nancy. From the other facts stated in the
affidavit it does not appear that the wife has to pay for the maintenance or the
education of Nancy.

   8. As for the two sons Terrance and Kavin for whom payment of the allowance
of Rs. 150 each was ordered by the court below, it was stated in the affidavit
filed in support of the stay application in this Court that Terrance was getting
education and maintenance in Don Bosco School at Bombay and was being
financially assisted by the husband's mother and that the other son Kavin was
also being maintained by the husband's mother by sending Rs. 200 per month. In
the counter-affidavit, it is said that the husband sent Rs. 200 per month in the
year 1980 for the maintenance and the education of the two sons and that in
January, 1981 Terrance was lodged in the Don Bosco School at Bombay. In this way
the sending of Rs. 200 per month by the husband's mother to the wife for the
maintenance of the boys has not been denied.

   9. From the aforesaid facts, it appears to me that the education and
maintenance of all the three children is being properly looked after by the
husband and there was neither any occasion for placing either of the three
children in the custody of the wife or to make an order for their maintenance
and education. The direction for payment of Rs. 150 per month each for the
maintenance of Terrance and Kavin who were, at the time when the application was
made living with the wife, does not appear to be justified, at any rate on the
facts as they stand at present. The learned Judge of the court below, appears to
have ignored the fact that the sum of Rs. 200 was being sent by the husband's
mother for their maintenance. Now, Terrance is no longer living under the care
of the respondent-wife. He is being educated and maintained by the appellant-
husband directly. So far as Kavin is concerned, the amount of Rs. 200 per month
sent by the appellant-husband's mother should be more than sufficient for his
maintenance and education but in case there is any difficulty, there is nothing
to prevent respondent-wife from asking the husband to take him away also if she
cannot properly look after him. It also appears to me that an order for the
maintenance and education of a minor child under Section 41 should not
ordinarily be passed unless it is coupled with an order for the custody of the
child.

   10. In the application made for enhancement of amount of maintenance in
support of the connected appeal a prayer was also made for an order directing
the husband to pay Rs. 2850 as "balance of fee of the counsel who has been
conducting the suit since 1978" in addition to "sufficient cost for conducting
the two appeals" in this Court. It appears from the order under appeal that the
sum of Rs. 1,500 had already been ordered to be paid and had been paid by the
appellant husband to the respondent-wife for her expenses of the defence of the
suit. And so far the only progress made in this suit appears to have been the
disposal of the application for maintenance pendente lite. The claim of the
learned counsel for Rs. 2,850 as fee is extraordinary and, if I may say so,
exorbitant. The maximum fee which could be allowed to counsel on taxation of
costs in matrimonial suits and appeals is, according to the Rules of Court,
1952, Chap. XVI, Rule 6, Rs. 200 in an undefended case, Rs. 375 up to the end of
the first date of hearing in a defended case and Rs. 200 for each succeed ing
day or part of a day, such part being of not less than one hour's duration. The
case does not appear to have been heard so far by the trial court and the appeal
in this court is not an appeal from any de cree but Is merely an appeal from an
order. The amount of Rs. l',500 already paid in the court below for the expense
of the proceedings is, in my opinion quite sufficient to cover the expenses
properly incurred by the respondent-wife up to the end of the case. I may in
this context observe that the making of re peated applications of the kind that
have been made in this case in the court below only confound and delay the
proceedings The parties would be well advised to have the main case heard and
decided as early as practicable rather than to endlessly go on litigating on
interim matters as they have been doing so far in the court below.

   11. I have to add that the cases cited by the learned counsel for the wife,
in this Court, were all of them besides the point and irrelevant in that sense,
I have, therefore, not referred to or discussed them in this judgment.

   12. In the result I allow the husband's First Appeal No. 362 of 1981 and set
aside the order dated 29th Sept. 1981 of the court of the IVth AddX District
Judge, Allahabad. Instead it is ordered under Section 36 of the Divorce Act that
the appellant husband shall pay Rs. 300 per month from 1st Oct. 1980 as
maintenance pen-dente lite to the respondent-wife during the pendency of the
Matrimonial Suit No. 177 of 1978 of the court of the District Judge, Allahabad,
at present pending trial in the court of IVth Additional District Judge,
Allahabad. The First Appeal No. 449 of 1981 is dismissed The application made on
2nd of December, 1981 by the respondent-wife for enhancement of the maintenance
pendente lite is also dismissed. The amount of Rs, 3600 as maintenance pendente
lite for the period of one year up to 30th Sept. 1981, has already been paid by
the husband under the interim order of this Court dated 16th Oct., 1981.
Maintenance for the subsequent period has been and shall continue to be paid in
accordance with the directions contained in that interim order dated 16th Oct.
1981, which is quoted in the body of this judgment, during the pendency of Suit
No. 177 of 1978 in the District Court.