Ralph Hugh Friedlander vs Kathleen Marjorie Friedlander on 30 August, 1948

    Ralph Hugh Friedlander vs Kathleen Marjorie Friedlander on 30/8/1948

JUDGMENT

   Weston, J.

   1. This matter raises a question as to the validity of a part of one of the
Rules framed in the year 1929 by this Court under Section 62 of the Indian
Divorce Act, 1879. The impugned rule is Rule 928 appearing at page 220 of the
printed Rules of this Court, and the material part of it is as follows :-

     The High Court shall not entertain an application for the modification or
discharge of an order 'for alimony, maintenance or the custody of children,
unless the person on whose petition the decree was pronounced is at the time the
application is made resident in India.

   2. The facts of the present matter shortly are these. On June 30, 1933, on
petition of the present opponent, to whom it will be convenient to refer as the
wife, a decree absolute for dissolution of marriage was passed by this Court
under the Indian Divorce Act against the present applicant, to whom I will refer
as the husband. By later order made on July 14, 1933, the husband was ordered to
pay permanent alimony to the wife of an amount of Rs. 75 a month, and a further
sum of Rs. 25 a month as maintenance of the daughter of the marriage until this
daughter should attain the age of 18 years. Custody of the daughter was with the
wife. I am informed that the husband was not represented when the order of July
14, 1933, was made, and no 'dum sola' clause appears in the order. It is not
disputed that the wife had left India before the application for alimony and
maintenance was filed, that sometime afterwards she re-married and has since
lived with her second husband in England. The present applicant, the prior
husband, has also remarried and ail along has remained in India. In the year
1942 he made an application for setting aside the order of alimony and
maintenance, made in the year 1933, on the ground that he was no longer able to
pay, as in addition to his second wife he was now required to support his
destitute parents, while his first wife's husband was in a position to support
her, and also on the ground that the order of July 14, 1933, was void as it was
made in contravention of Section 2 of the Indian Divorce Act which provides,
inter alia, that no relief shall be granted under the Act other than a decree
for dissolution of marriage or of nullity of marriage, except when the
petitioner resides in India at the time of presenting the petition. This
application was opposed by the wife, who admitted that her present husband was
in a position to support her and was supporting her, but who claimed that the
maintenance awarded for the daughter was inadequate and that she devoted all she
received under the order to the maintenance to the daughter.

   3. The application was dismissed on February 21, 1944. Rule 928 was then
relied upon by the husband in support of his argument under Section 2 of the
Act. In my order I expressed doubt as to the validity of Rule 928, but held the
order of July 14, 1933, to be valid notwithstanding Section 2 of the Act, on the
basis that an order for alimony and maintenance must be regarded as incidental
to the decree for dissolution of marriage, which could be granted under Section
2, even though the wife had already left India when the original petition was
filed. I declined to consider modification of the order in view of the wife's
statement that she devoted all she received to the daughter's increasing
expenditure, but said it would be open to the husband to ask that the order be
revised when the daughter attained the age of 18 years.

   4. The present application made on February 10, 1948, now asks for such
review as the daughter attained the age of 18 years in March 1947. The order for
payment of Rs. 25 a month for the daughter of course has lapsed under the terms
of the order itself, and the question is whether the order for alimony can and
should be reviewed. Any modification of the order is opposed on behalf of the
wife. It is claimed that certain expenses still have to be met for the daughter
which the wife proposes to meet from the alimony payable to her. She claims
therefore that this should not be reduced. In her turn she now relies upon Rule
928 and claims that in her absence from India the order cannot be varied.

   5. In England doubts as to the power to vary a maintenance order were settled
by the decisions in Turk v. Turk : Dufty v. Dufty [1931] P. 116 in 1931 and
Bennei v. Bennet [1939] P. 274 in 1934, and the power is now provided by Section
14 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, and
this power is not affected by the circumstance that the wife may no longer be
resident in England. Section 37 of the Indian Divorce Act provides in terms for
discharge or variation of orders of maintenance. Under Section 2 of the Indian
Act the Court has jurisdiction to grant a decree for dissolution of marriage
even when the petitioner is not resident in India when the petition is
presented, and if, as I have held in earlier proceedings, the section does not
bar the making of incidental orders for alimony or maintenance in such
circumstances, it is difficult to understand that present residence can affect
the power to discharge or vary such orders expressly given by Section 37.

   6. Comparison of Rule 928 with Rule 22 of the Indian (Non-Domiciled Parties)
Divorce Rules, 1927, framed by the Secretary of State in Council of India under
Section 1(4) of the Indian and Colonial Divorce Jurisdiction Act, 1926,
suggested that Rule 928 was based upon this rule rather than upon considerations
arising from Section 2 of the Indian Divorce Act. Reference to the original
draft of the rules made bv this Court in the year 1929 has confirmed this, for I
find that the original draft ofr 928 was identical in wording with Rule 22 of
the Secretary of State's Rules, and that Rule 928 and the other rules then
framed were framed with the expressed intention of being in conformity with the
rules framed by the Secretary of State under the Indian and Colonial Divorce
Jurisdiction Act.

   7. With the greatest respect to the learned Judges responsible for Rule 928,
it does not seem to have been considered that, at least and so far as decrees
for dissolution or nullity of marriage are concerned, jurisdiction of the Indian
Courts is fundamentally different under the two Acts, the Indian and Colonial
Divorce Jurisdiction Act and the Indian Divorce Act. Under each Act such
jurisdiction is based upon domicile, English under the one, and Indian under the
other; and as a person -can have only one domicile at a particular time,
jurisdiction under the two Acts in these matters is mutually exclusive. It is
also to be noticed that although the Indian Divorce Act applies in terms where
the petitioner or the respondent professes the Christian religion, the Act also
applies by reason of Section 17 of the Special Marriage Act to marriages under
that Act when neither of the parties professes the Christian religion. Where
jurisdiction exists under the Indian Divorce Act in a particular case to grant a
decree of dissolution of marriage, clearly no jurisdiction exists in that case
at the same time under the Indian and Colonial Divorce Jurisdiction Act, nor
could jurisdiction exist in the Courts in England, for there also jurisdiction
depends upon domicile. Also no English or other foreign Court can have
jurisdiction to vary any order made by an Indian Court under the Indian Divorce
Act" although some independent order in separate proceedings consequent upon
change of domicile might be made. On the other hand in cases falling under the
Indian and Colonial Act the English Courts have concurrent jurisdiction. The
jurisdiction of the Indian Courts under the Indian and Colonial Act is really of
the nature of delegated jurisdiction. By Section 1(2) of the Indian and Colonial
Divorce Act a decree made under the Act must be registered in the High Court in
England (or in the books of Council Session in Scotland) and by Section 1(3) of
the same Act, where a decree is so registered, proceedings under it may be taken
as if it is a decree made by the High Court of England (or the Court of Session
in Scotland). Then follow three provisos to Section 1(3). The second gives to
the Court of Session power to vary or discharge an order of alimony. The third
saves proceedings taken in India under the decree. The first proviso is akin to
Rule 928 and Rule 22 of the Secretary of State's Rules and is as follows :

     (1) The High Court in England or the Court of Session in Scotland shall
not, unless the Court for special reasons sees fit so to do, entertain any
application for the modification or discharge of any such order if and so long
as the person on whose petition the decree for the dissolution of the marriage
was pronounced is resident in India.

   Section 1(a) of the same Act confers power upon the Secretary of State in
Council of India to make rules, and states that these rules shall provide for
matters there set out in a number of clauses. Of these Clause (e) is as follows

     (e) for limiting cases in which applications for the modification or
discharge of an order m be entertained by the Court to cases where at the time
the application is made the person on whose petition the decree for the
dissolution of the marriage was pronounced is resident in India.

   Rule 22 of the Secretary of State's Rules clearly was framed under this
Clause The effect of this rule and the first proviso to Section 1(3) set out
above is that an application for modification or discharge of an order of
alimony made under a decree for dissolution of marriage granted by an Indian
Court under the Indian and Colonial Act must be made to the Indian Court, if at
the time the application is made the person on whose petition the decree was
pronounced is resident in India, and to the High Court in England (or the Court
of Session in Scotland) if at the time the application is made the person on
whose petition the decree was pronounced is resident anywhere outside India.

   8. There is, however, no counterpart to Rule 928 of this Court, and its
effect, if valid, would be that if the person on whose petition the decree was
pronounced leaves-India, no Court has jurisdiction to modify or discharge an
order for alimony or for maintenance or for custody of children made under the
Indian Divorce Act.

   9. As already stated express power to discharge or modify orders of alimony
is granted by Section 37 of the Indian Divorce Act, and Section 44 of that Act
provides expressly that from time to time orders may be made for custody,
maintenance and education of minor children, the marriage of whose parents was
the subject of the decree. It is an illustration sufficiently striking of the
effect of Rule 928 that if a person to whom custody of minor children has been
awarded leaves India and abandons the children in India the Court might be
powerless to act.

   10. It is true that in the rules framed by the Secretary of State under the
Indian and Colonial Act there is reference to the Indian Divorce Act and that in
the Indian Divorce Act there is reference to the practice of the Divorce Courts
in England. In Rule 22 of the Secretary of State's Rules it is provided that:

     Proceedings relating to alimony, maintenance, custody of children, and to
the payment, application or settlement of damages assessed by the Court shall be
conducted in accordance with, the provisions of the Indian Divorce Act, 1869,
and of the rules made there under.

   and that part of Rule 22 earlier referred to follows as a proviso.

   11. Conversely Section 7 of the Indian Divorce Act enjoins that Courts shall
act and give relief in all suits and proceedings under the Act on principles and
rules which are as nearly as may be conformable to the principles and rules on
which the Court for Divorce and Matrimonial Causes in England for the time being
acts and gives relief. It has been held recently by this Court in appeal (Bamesh
Sarah/a v. Kusum, Madgaokar (1948) 50 Bom. L.R. 426 that this section does not
apply only to matters of procedure and operates to give jurisdiction to order
alimony following a decree of nullity of marriage, although no provision for
alimony in such circumstances is made in the Act. This construction of Section 7
would seem to make much of the remainder of the Act surplusage. But even so the
fundamental difference of jurisdiction under the Indian and Colonial Act and
under the Indian Act remains unaffected. Rules, made under Section 62 of the
Indian Divorce Act must be consistent with the provisions of the Act, and any
rule which deprives a person of a remedy which exists under the Act is to that
extent ultra vires. On these considerations I hold that the material part of
Rule 928, namely, that contained in its first paragraph as set out at the
beginning of this judgment is ultra vires the rule making power of this Court
under Section 62 of the Act, and is, therefore, of no effect. I hold, therefore,
that I have jurisdiction to modify or discharge the order for alimony in this
case, notwithstanding the fact that the wife on whose petition the decree was
pronounced is resident outside India.

   12. On the merits of the application it appears that the incomes of the
husband and of the wife's second husband are of about the same order. There is
no reason to doubt the husband's assertion that he has now to support his
parents. At the same time the daughter, although she has attained the age of 18
years, is said still to be a dependent, as she has not finished her education,
and I think some amount should continue to be paid to the wife to be devoted to
the daughter. Considering all the circumstances I think it will be proper to
substitute for the order of July 14, 1933, an order directing that the husband
from the date of this application shall pay to the wife an amount of Rs. 25 only
a month and that this payment shall be continued until the daughter has attained
the age of 21 years.

   13. The husband applicant must bear the costs of the wife in this present
proceeding. Counsel certified.