B. Iswarayya vs Swarnam Iswarayya

Reilly, J.—In 1921 the respondent in A.S. No. 169 of 1927 obtained a decree under the Indian Divorce Act of judicial separation from her

husband, the appellant. The husband was then ordered to pay Rs. 120 a month to the wife for her own maintenance and Rs. 30 a month to her for

the maintenance of each of their four children. In O.P. No. 44 of 1926 on the District Judge''s file the wife prayed that the amount to be paid for

her maintenance by the husband should be increased to Rs. 260 a month, and in O.P. No. 43 of 1926 the children applied for an increase of the

maintenance allowances to be paid by their father for them to Rs. 300 a month in all. The District Judge disposed of both petitions in one judgment.

He found that the children were no longer minors under the Indian Divorce Act and that therefore their father could not be ordered to pay

maintenance allowances for them u/s 42 of the Act. But he made an order raising the alimony to be paid to the wife to Rs. 310 a month, including

in his calculation amounts required for the maintenance and education of the children and Rs. 160 a month for the wife herself. The husband

appeals in A.S. No. 169 of 1927 against the District Judge''s order so far as it relates to the wife herself and in A.S. No. 201 of 1927 so far as it

relates to the children.

Mr. Muthukrishna Aiyar for the husband contends first, that, the alimony for the wife having been originally fixed u/s 37 of the Act at Rs. 120 a

month, the District Judge had no power to raise its amount. Section 37 does not in express words provide any power to increase the alimony of a

wife once fixed. Mr. Mocket for the wife replies that since 1907 that power has been provided in England by the Statutes which govern the

Probate and Divorce Division of the High Court in such matters and from 1866 to 1907 it was provided by the Statutory Rules and Regulations of

the Court for Divorce and Matrimonial Causes; and that power can be exercised by the Court in India because Section 7 of the Indian Divorce

Act provides that High Courts and District Courts shall act and give relief on principles and rules which in the opinion of the said Courts 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. Mr. Mocket''s extreme contention that ""rules"" in Section 7 of the Indian Divorce Act means the Statutory Rules in farce for

the time being in England is in my opinion clearly untenable, If Statutory Rules in'' force in England were meant, there would be no question of the

Courts in this country acting on rules which in their opinion were as nearly as may be conformable to those rules. The provision would have been

either that the statutory rules in force in England were to be observed in this country or that the rules to be made u/s 62 of the Indian Divorce Act

were to be as nearly as may be conformable to the statutory rules in force in England. In my opinion the words ""Principles and rules"" in Section 7

of the Indian Divorce Act mean principles and rules of law, of evidence, of interpretation, of practice, and of procedure but not statutory provisions

nor statutory rules. The principles and rules to be applied are by the words of the section made subject to the provisions of the Act; they can never

run counter to the Act. Mr. Mocket suggests that they may fill up gaps left in the Act. But I am inclined to agree with Mr. Muthukrishna Aiyar that

they can neither cut down the provisions of the Act nor supply any form of relief not provided by the Act. However I do not think it necessary to

discuss that question in any detail on this occasion as the present case appears to me to turn on other considerations. Mr. Muthukrishna Aiyar in

the course of his argument has also compared the provisions of the Indian Divorce Act with the Statutes and the statutory rules in force in England

from time to time since 1857. Such a comparison is interesting. But in my opinion it is neither useful nor permissible for the purpose of interpreting

the Indian Act unless the provisions of that Act which are in question are of doubtful meaning. If the provisions of the Indian Act are plain, we have

no need, and in my opinion we have ho right, to look outside the Act for its interpretation.

The question here is whether the amount of alimony which the husband has been ordered to pay monthly can be raised by the Court after it has

once been fixed. The words of Section 37 of the Indian Divorce Act are ""in every such case""--that is on any decree of judicial separation obtained

by the wife--""the Court may 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."" There is a proviso to that part of the section which I will discuss later. But in itself, as that provision

stands, and leaving out of consideration any interpretation, judicial or otherwise, which has been put on similar provisions elsewhere, does it mean

that an order for payment, by the husband once made can never be varied, that the amount to be paid can never be raised by the Court? Does it

mean that one order only can be made in the wife''s favour? The Court is to fix the sum which ,it thinks reasonable. What is reasonable to-day may

be unreasonable a few years hence. Where the husband has property on which a gross sum or an annual income can be secured to the wife, the

earlier part of the section provides for that being done. The part of the section with which we are dealing appears to apply to other cases, where

the husband has no such property, or no sufficient property, but is earning or receiving an income, out of which he can properly be ordered to

make payments to the wife. Such an income in very many cases will be variable. A husband who depends on his own earnings may be earning

nothing at the time when his wife obtains a decree of judicial separation against him. A year later he may have obtained a good appointment and be

earning a large income. If the Court''s power is restricted to the time when the decree is made, in such a case it would not be reasonable to make

any order for payment to the wife at all. Does this part of the section mean that in such a case the wife can never get an order for payment of

alimony? If it is suggested that the Court can make an order for payment after the decree but not necessarily at the time of the decree and then its

power is exhausted, the result is hardly more reasonable. A husband may at the time when the first order is made be earning a very small income,

out of which he cannot make any payment sufficient for the maintenance of his wife, but later on he may be earning thousands a month. Does the

section tie the hands of the Court so as to prevent an order for the payment of proper alimony to the wife when it is obvious that the husband can

well afford it? When a Court is given power to make a continuing order reasonable in the circumstances, by what principles of interpretation can

we say that that implies power to make only one order applicable to one set of circumstances, which can never be varied, however gravely the

circumstances may vary? And, when we remember the particular kind of circumstances to which this part of the section applies, that is cases in

which a proper provision cannot be made for the wife out of the property of the husband but can be made out of his income, I see nothing in the

words used to drive us to the conclusion, unreasonable in itself and not necessarily implied in the words, that the Court can do no more than make

once and for all a single order in favour of the wife and then its power is spent.

Mr. Muthukrishna Aiyar has sought to support his interpretation of the section to that effect by comparing it with Section 42, which deals with

orders regarding the minor children of parents judicially separated and provides explicitly that such orders may be made ""from time to time"". He

would have us regard it as of importance by contrast that there are no such words in the part of Section 37 which I have been discussing. But

Section 42 deals with orders with respect to the custody, maintenance and education of the children or for placing them under the protection of the

Court. It is obvious that in such matters frequent orders differing from time to time may be required in the interests of the children as they grow up,

and the conduct or occupation of the parent to whom the custody of the children has been given may often make a variation of the original or

subsequent order necessary in that matter. The fact that the legislature has been careful to state explicitly that varying orders in respect of the

children may be made from time to time, as is obviously desirable in their interests, is in my opinion no sufficient ground for supposing that having

provided in Section 37 that the Court may order the husband to make such monthly payments to the wife as it thinks reasonable, the legislature

intended to make that order invariable. Without provision for variation from time to time it might perhaps be thought that an order for the custody

of the children was final. When alimony is to be fixed according to what is reasonable in the circumstances, no such finality is implied.

What at first sight may be thought a stronger argument in support of Mr. Muthukrishna Aiyar''s contention is that Section 37 contains an explicit

proviso for the reduction of the alimony which the husband has been ordered to pay but no proviso for its enhancement. Mr. Muthukrishna Aiyar

argues that the very fact that a proviso has been introduced only for the reduction of alimony once fixed implies that enhancement was never

contemplated by the legislature; if alimony once fixed could be varied according to circumstances under the section without the proviso, the proviso

regarding reduction would be superfluous. On examination that argument does not appear to me to be sound. When an order for the periodical

payment of alimony has been made against a husband, it is of the nature of a decree, and, if he is to be allowed in certain circumstances to get it

reversed or modified, it might be thought that explicit provision must be made for that in some way, and it is not made in the section apart from the

proviso. But when the wife applies for additional alimony she does not want the original order touched in effect; she wants a further decree for

additional alimony. The proviso might be thought necessary if the Court was to have power to unmake the order made; no proviso is necessary to

give power to make an additional order. My conclusion, therefore, is that Section 37 of the Indian. Divorce Act, as it stands, gives power to the

Court to enhance the alimony which a husband has been ordered under the section to pay to a wife judicially separated from him. Returning for a

moment to Mr. Muthukrishna Aiyar''s comparative examination of the English statutes and statutory rules on the one side and the Indian Divorce

Act on the other, I may point I out that under the English Act of 1857 the Court had power when pronouncing a decree for dissolution of marriage

to fix an amount of alimony for the wife--either a gross sum or an annual sum--but nothing was said in the Act about power to increase the sum;

nevertheless Rule 92 of the Rules and Regulations made under that Act prescribes procedure for a wife applying for the increase of alimony so

fixed, which could not properly have been done unless power to increase the alimony fixed had been held to be implied in the power given by the

Act to fix it.

The husband is on much firmer ground in his appeal against the District Judge''s order so far as it makes provision for the children. The Act

makes provision only in respect of minor children; and under the Act the sons of native fathers are no longer minors when they reach 16 years of

age and the daughters when they reach 13. It is admitted that none of the children concerned in this case was a minor within the meaning of the Act

when O.P. No. 43 of 1926 was presented to the District Court. But the District Judge has tried to provide for them by adding the cost of their

maintenance and education temporarily to the alimony of the wife, which he has raised for that explicit purpose. That is not to apply but to

circumvent the provisions of the Act. In my opinion there is no power under the Act to make any provision for these children who are no longer

minors under the Act. The learned District Judge says in his judgment that it was conceded that ""the wife who is entrusted with their custody and

education is entitled to claim from the husband the cost of their maintenance and education"". I do not understand exactly what that means. The

entrustment"" of the children to the wife appears to have been made under an order for their custody which is no longer in force. The legality of

providing for the children in that way is contested by the husband in A.S. No. 201 of 1927, and Mr. Mocket has not suggested before us that any

such ""concession"" was really made by the husband before the District Judge. In my opinion A.S. No. 201 of 1927 must be allowed and no

provision can be made for the children directly or indirectly.

The wife claimed in O.P. No. 44 of 1926 Rs. 260 a month for her own maintenance. The learned District Judge, though taking into

consideration the expenses of the children, has made an order for the payment to the wife of Rs. 310 a month, calculating what was needed by her

at Rs. 160 a month. In my opinion he might well have fixed her alimony at Rs. 260 a month. The husband at the date of the petition was receiving a

salary of Rs. 800 a month. As District Medical Officer there is no doubt that he has opportunities of adding considerably to that income by private

practice. He did not go into the witness box; nor did he explain to the Court clearly what his income was. It is indeed not at all creditable that an

Officer in his position should not have been open with the Court and should have left the amount of his income to speculation. It will, I think, be

quite safe to estimate his income at something over Rs. 1,000 a month. Out of that it is in my opinion reasonable that he should pay Rs. 260 a

month to his wife in alimony. Though she has not put in any appeal or memorandum of objections against the District Judge''s order, the reason of

that appears to have been that in one sense the alimony fixed by the Judge was more than she had claimed. In the circumstances I think we may

properly make an order under Rule 33 of Order 41, Civil Procedure Code, that the husband do pay alimony to the wife at the rate of Rs. 260 a

month. The learned District Judge has made his order to take effect from the date of the wife''s petition, ins., 18th March, 1926. The husband

objects to that; but I see no sufficient reason why it should not be done, and I would make our order have effect from that date.

As to costs I would order the husband to pay the wife''s costs in A.S. No. 169 of 1927. And, although A.S. No. 201 of 1927 must be allowed

in his favour, I would order him to pay the respondent''s costs throughout, both because his conduct in the case does not appear to me to have

been at all creditable or straightforward and because, though he has objected successfully to the District Judge''s order, he did not bring to the

notice of the learned Judge, either when his judgment was pronounced or afterwards, the fact that he had not made the supposed concession upon

which the judgment partly proceeds.

C.M.A. No. 312 of 1927.--This appeal relates to an application (E.A. No. 253 of 1926"") to record satisfaction in the matter of payments for

two of the children concerned in A.S. No. 201 of 1927. The order of the District Judge must be set aside and the application remanded to him for

fresh disposal. In this appeal each party will bear his own costs.

Phillips, J.

I agree with the orders proposed and will only add one word about Sections 3 (5) and 42 of the Act. It seems to me most improper that a

Court of Matrimonial Jurisdiction should not have power to pass orders as to the custody and maintenance of unmarried girls above the age of 13,

or of boys over 16. Since 1869 great strides have been made in education and it cannot now be said that education always ceases in the case of

girls at 13 and in the case of boys at 16 nor are they usually in a position to fend for themselves at that age. In my opinion the definition of minor

children in Section 3(5) requires amendment and would invite the attention of the Legislature to the same.