Banoo Jal Daruwalla vs Jal C. Daruwalla

K.K. Desai, J.—In this application for permanent alimony, by the first four prayers, the Plaintiff who is the wife of the Defendant has claimed sole and exclusive right to the use of the marital flat together with furniture, goods, chattels and other articles. By prayer (d), the Plaintiff has claimed that the Defendant may be ordered to secure to the Plaintiff during her life such gross sum or monthly payments for her maintenance as the Court determines. By prayer (e) the Plaintiff has claimed division of the marital flat between the Plaintiff and the Defendant. Prayers (f) to (j) relate to ornaments, clothes, certain amount lying deposited in the Lloyd''s Bank in the joint names of the Plaintiff and the Defendant, certain jewelleries and certain other items of money. The relevant facts leading to this application are as follows:

On June 25, 1947, the Plaintiff and the Defendant came to be married Prior to that date the Defendant resided in a third floor flat at "Alana" House situate at Bomanji Petit Lane. The rent of the flat was Rs. 155 per month. The flat consists of three bed-rooms, a living room, pantry kitchen and other accommodation. The Plaintiff and the Defendant commenced to reside in that flat. On March 13, 1961. the Plaintiff filed a suit praying for a decree for judicial separation and also claiming reliefs in connection with the properties mentioned in prayers (f) to (j) of this petition. On August 21, 1961, the Plaintiff took out a notice of momon for alimony pendente lite. By consent of parties, on August 21, 1961, the Defendant was ordered to pay to the Plaintiff a sum of Rs. 130 per month as alimony pendente lite and the motion was adjourned in connection with certain other matters. By an order made on September 7,1961, on that very notice of motion, by consent: of parties, the Defendant was ordered to pay Rs. 130 per month as alimony pendente lite to the Plaintiff, but it was declared that the arrangement recorded between the parties in that order was only temporary pending the hearing of the suit and was entirely without prejudice to the rights and contentions of the parties, if any, with regard to the tenancy of the flat and to the right of residence therein of the Plaintiff and the Defendant and to all claims and contentions of the parties against each other with regard to the ownership of furniture, goods, chattels and all other articles. The Defendant had filed a written statement and counter-claim and till a few days before the hearing took place the suit and counter-claim were being fought out between the parties acrimoniously. As before a few days from the date of the hearing the Defendant informed the Plaintiff that he was not going to contest her claim for decree lor judicial separation, on October 16, 1961, an ex parte decree without any contest was passed in favour of the Plaintiff granting her judicial separation. In that decree the reliefs claimed in the remaining prayers of the plaint were stood over for disposal at a later date including the question of costs of the suit.

These are the facts leading to this application, wherein the reliefs as I have mentioned above have been claimed on behalf of the Plaintiff.

Before considering the question of the relief of alimony, it is convenient to dispose of the question of claim made to ornaments, clothes and other article, furniture, goods and chattels as also different amounts of moneys mentioned in prayers (f) to (j) in the first instance

Mr. Khambatta for the Defendant contends that the Court constituted under the Parsi Marriage and Divorce Act, 1936, is not entitled to try and dispose of questions relating to title to properties and/or to effect partition between co-owners. He has in that connection rightly pointed out that the reliefs claimed in prayers (f) to (j) all relate to title to properties and/or properties alleged to be held as co-owners between the Plaintiff and the Defendant. He has relied upon the scheme of the Act. Now, it is clear that the scheme of the Act is not intended to deprive the ordinary civil Courts of jurisdiction to decide titles to properties and questions arising between co-owners in the usual way. The scheme does not deprive the High Court at Bombay to decide such questions arising between parties situate in the Ordinary Original Jurisdiction of this Court and/or relating to the properties in respect whereof the High Court has ordinary jurisdiction. The Court constituted under the Act is constituted for special purposes. Under Part (Chapt.) III of the Act, the Court is given special jurisdiction as Parsi Chief Matrimonial Court or Parsi District Matrimonial Court. The powers and territorial jurisdiction of the Court are mentioned in Sections 18 to 29. The suits which can be tried by Courts constituted under the Act are referred to in Sections 30 to 38 of the Act. Reliefs that can be given by the Court constituted under the Act are also mentioned, in Sections 30 to 48 of the Act. It is apparent on reading Sections 30 to 48 that the Court constituted under the Act cannot deal with causes which are not specifically referred to in these sections. In this connection, Mr. Khambatta has rightly relied upon Section 42 of the Act, which runs as follows:

Disposal of joint property.-In any suit under this Act the Court may make such provisions in the final decree as it may deem just and proper with respect to property presented at or about the lime of marriage which may belong jointly to both the husband and wife.

On a reading of this section and the whole of the scheme of the Act, it is clear that the Court constituted under the Act does not deal with questions of titles to properties and questions arising between a husband and a wife as co-owners of properties except only in respect of joint properties presented at or about the time of marriage. In respect of other questions of title to property and/or property owned or alleged to be owned as co-owners between husband and wife and other reliefs in respect of such property, it is obvious that so far as the town and island of Bombay and/or Greater Bombay is concerned, the same must be disposed of by ordinary civil Courts, i. e. either the High Court, the City Civil Court or the Court of Small Causes. Having regard to the nature of the reliefs claimed in prayers (f) to (j), it is clear that this Court has no- jurisdiction to decide those questions and the same must be decided by ordinary Civil Courts. This also applies to the reliefs claimed regarding furniture, goods, chattels and other articles referred to in prayers (a) and (b) of this application.

As regards permanent alimony to be granted to the Petitioner and the question of what is referred to as a marital home and marital flat in this application, Mr. Lam for the Plaintiff has strongly relied upon the observations of Lord Justice Denning in the case of Bendall v. McWhirter (1952) 2 Q B 466. In that case a freehold owner of a house in which he lived with his family deserted his wife, felling her that she could have the house and furniture. Later, she obtained a maintenance order against him on the ground of his desertion. Subsequently, he was adjudicated bankrupt and the freehold of the house vested in his trustee in bankruptcy. The trustee brought an action to recover possession and mesne profits against the wife as a trespasser from the date of the adjudication in bankruptcy. The County Court Judge held that as the wife was a licensee whose licence was determined when the property vested in the trustee, he took iv unfettered by matrimonial obligations; and made an order for possession with mesne profits in favour of the trustee. On appeal, that order was set aside. It that connection Lord Justice Denning has referred to the original position of a wife in Common law as follows (p. 475):

.......Under the old common law as it existed until 70 years ago she had no rights at all apart from these of her husband. She was treated by the law more like a piece of his furniture than anything else.... He could bundle his furniture out into the street, and so he could his wife.... Thus, if the husband became bankrupt his assignees in bankruptcy could turn her out just as they could his furniture." After referring to the above position of a wife at common law, the learned Lord Justice observed as follows (p. 475):

All that has changed now. A wife is no longer her husband''s chattel. She is beginning to be regarded by the law as the partner in all affairs which ere their common concern. Thus the hue band can no longer turn her out of the matrimonial home. She has as much right as he to stay there even though the house does stand in his name. This has only been decided in the list 10 years.

Thereafter reference is made to Section 17 of the Married Women''s Property Act, 1882, and it is observed as follows (p. 475):

... That section gives the Court a very wide discretion in the matter; and accordingly, in 1947, when a husband claimed that he had an absolute right to turn his wife out, it was held that ho had no such right, but that it was a matter for the discretion of the Court: see H. v. H. (1947) 63 T L R 645, Very shortly afterwards, this Court took the same view [Stewart v. Stewart (1948) 1 K B 507, and it is now settled law that a deserted wife has aright, as against her husband, to stay in the matrimonial home unless and until an order is made against her u/s 17. In support of this right His Honour Judge Willes recently made an order allowing a wife to stay until the husband found alternative accommodation, and restraining the husband from selling the house over her head, and we affirmed it: Lee v. Lee (1952) 2 Q B 489. Moreover it has been held that the wife''s right is effective, not only as against her husband but also as against the landlord.

At page 477, in connection with the husband''s right to continue in possession of the property, it is observed as follows:

...Her possession is not always exclusive. If the husband has only been guilty of desertion and nothing else, he is entitled to come back at any time asking to be forgiven, and she is then bound to receive him. She cannot then keep him out of his house. But if he has, in addition to desertion, been guilty of cruelty or adultery, she is not bound to take him back. She can keep him out of the house. Her possession may then be quite exclusive. . She has only a personal privilege with no legal interest in the land and she is therefore only a licensee...." These are important observations and there is no doubt that the above observations are established law in England. It appears to me that whilst deciding the question about the matrimonial home between a Parsi Zoroastrian husband and wife the above observations must always be borne in mind. Wherever it is practicable, it would be the duty of the Court to see that the wife is not thrown out of the matrimonial home. This, however, does not mean that the husband must be ordered to be ejected out of the matrimonial home unless he is guilty of extreme cruelty and otherwise undeserving. Mr. Khambatta for the Defendant has argued that the English law as appearing in the case of Bendall v. McWhirter (1952) 2 Q B 466 is entirely based on the provisions of Section 17 of the Married Women''s Property Act. He has pointed out that there is no such provision in the Indian law. He also contended that the decision in that ease is based on the express licence held to he given by the husband in favour of the wife. According to him, the above observations do not generally apply to questions about matrimonial homes between husbands and wives even in England. It appears to me that Section 17 of the Married Women''s Property Act has been referred to in that decision only as a source of discretion in a Judge whilst deciding the question of matrimonial home between husband and wife. I have no doubt that whilst deciding the question of matrimonial home between a Parsi husband and wife the Court would always have such discretion, because the matter is relevant to the consideration of right of residence of one of the spouses in the matrimonial home and also it must have reference to the quantum of permanent alimony which should be awarded to a wife as against her husband. The relevant provision relating to the awarding of alimony to a wife is contained in Section 40 of the Act, which runs as follows:

Permanent alimony.-(1) The Court may, if it shall think fit at the 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 as, having regard to her own property, if any, her husband''s ability and the conduct of the parties, shall be deemed just.....

(b) make such monthly payments to the wife for her maintenance and support as the Court may think reasonable....

(2) ......

(3) ......

It is obvious that in spite of a decree for judicial separation the matrimonial tie between the husband and wife continues to exist. It is also obvious that as a consequence of that tie the husband is bound to duly and properly maintain his wife in appropriate manner. It is, in this connection, that the Court must, having regard to the provisions of Section 40 of the Act, consider (1) the wife''s own property, (2) the husband''s ability and (3) the conduct of the parties. The discretion of the Court after considering the above matters in awarding main-tenance and/or alimony to a wife is unlimited. Having regard to what has been pointed out by Mr. Lam and admitted by Mr. Khambatta, it is clear that the Plaintiff and the Defendant both cannot continue to reside in the third-floor flat at "Alana" House and that they must reside separately at two different places. It is also clear, having regard to what is mentioned in the order dated September 7, 1961, that the Plaintiff left the marital home pending the hearing of the suit. She, however, did so without prejudice to her contention that she was entitled to continue in occupation of the marital flat as she was doing up to the date she left the same. As it does not appear to me to be appropriate to pass any ejectment order against the Defendant directing him to leave the flat at "Alana" House, I propose to award appropriately larger amount of maintenance to the Plaintiff in finally determining the alimony to be paid by the Defendant to her. I do not think it is right that I should direct the Defendant to give delivery of the flat at "Alana" House to the Plaintiff.

Now, in connection with the property of the Plaintiff, nothing has been alleged. What is stated is that she is in a position to earn a large income. According to the Defendant, the Plaintiff is earning about Rs. 400 by way of salary. She is also earning further amounts of Rs. 100 as tuition fees and Rs. 75 by charging diverse fees to pupils of Gurton High School. She also earns about Rs. 25 per month from AH India Radio. Thus, according to the defend-ant, the Plaintiff''s income is about Rs. 600 per month. According to the Plaintiff, apart from the salary of about Rs. 400 which she is earning from the Willingham House High School, she has no other fixed income at all. Occasion-ally she might earn from All India Radio about Rs. 25. She denies having any tuitions or charging any amount to the pupils of the Gorton High School. According to the Plaintiff, the Defendant''s income is about Rs. 1,000 per month. He receives admittedly a salary of Rs. 640 per month. This is after retention of Rs. 68 towards provident fund amount. Thus he earns Rs. 708 per month by way of salary. Admittedly, he was appointed an examiner by the University of Bombay and earned in 1959, 1960 and 1961 the following respective amounts, viz. Rs. 3,993, Rs. 2,487 and Rs. 2,287. According to the Plaintiff, he also earns Rs. 50 by way of interest on fixed deposit amount and dollars 500 per year by reason of his connection with World Brotherhood. He also admittedly received Rs. 125 by way of rent from one of the sub-tenants in the flat at "Alana" House. The Defendant denies that he earns anything by way of interest or any amount by reason of his connection with World Brotherhood. Having regard to the above disputes about the exact income between the parties, it could have been suggested that the matter should be referred to the Commissioner for Taking Accounts for ascertaining the true income of the parties. The disputes raised appear to me to be so small that the same cannot bear the costs of a reference to the Commissioner. Having regard to the arguments advanced on both sides in this connection, it appears to me that this case can be decided on the footing that the approximate income of the Defendant is at least Rs. 900 per month whilst the approximate income of the Plaintiff is about Rs. 425 per month.

Whilst fixing the amount to be awarded to the Plaintiff, Mr. Lam has argued that the conduct of the parties must be taken into account. The suit was until a few days before the hearing fought out acrimoniously. The ex parte decree that was granted to the Plaintiff was on clear evidence that the Defendant had acted cruelly against her. As the Plaintiff is unable to re-enter into enjoyment of the matrimonial home situate at the third floor of "Alana" House and as the Defendant is exclusive owner of that valuable asset and as the conduct of the Defendant is proved to be cruel as against the Plaintiff and as the parties are unable to reside and share the same flat, considering the above income between the parties, I have come to the conclusion that the Defendant must pay every month Rs. 275 to the Plaintiff by way of permanent alimony as from October 16, 1961.

The above will dispose of the first five prayers (a) to (e) in this application.

Mr. Lam and Mr. Khambatta have informed me that as regards the costs of the suit and of this petition they will abide by the decision of Mr. H. D. Banaji, Advocate. This application is adjourned to April 28, 1962, as regards costs payable to the Plaintiff.

As regards the amount of alimony due up to March 16, 1962, on the above footing the same will be paid over within four months. The amount that must be deemed to hive become due on April 16, 1962, will be paid on or before May 7, 1962. Thereafter the recurring amount will become due and payable on 16th of each month.