SHERU ALIAS SHEHRA GUSTADJI Vs. GUSTADJI UKKADJI KADODWALA

JUDGEMENT

(1.) Gustadji Ukkadji married Bai Sheru Gustadji accor- ding to Parsi rites on May 10 1954 at Surat. For some time the couple ved happily but in the year 1967 Sheru filed Parsi Matrimonial Suit No. 3 of 1967 in the Court of the Parsi District Matrimonial Court Surat to obtain a decree for restitution of conjugal rights. Her husband Gustadji filed a counter claim praying for judicial separation. The Court by its judgment dated December 6 1967 dismissed the suit for restitution of conjugal rights and passed a decree for judicial separation. Bai Sheru thereafter filed Regular Appeal No. 34 of 1969 in the High Court against the said decree but it was dismissed on Novem- ber 6 1970 Thereafter Gustadji the plaintiff filed Parsi Matrimonial Suit No. 3 of 1971 in the Court of the Parsi District Matrimonial Court Surat seeking divorce under sec. 32(h) of the Parsi Marriage and Divorce Act 1936 (hereinafter referred to as the Act) on the ground that the parties had no marital intercourse for three years or more since the decree or order for judicial separation was passed on December 6 1967 The suit was tried with the help of delegates and in view of the opinion of the delegates the Court granted a decree of divorce on December 10 1973 This decree is challenged in First Appeal No. 394 of 1974 by the wife namely Bai Sheru. Bai Sheru the wife filed miscellaneous application for permanent alimony under sec. 40 of the Act. This application was filed on April 10 1971 in Parsi Matrimonial Suit No. 3 of 1971. The learned trial Judge also decided this application as per the opinion given by the delegates who had come to the conclusion that the permanent alimony should be paid at the rate of Rs. 90.00 per month for a term not exceeding her life or till she remains chaste and unmarried. This order granting the alimony is challenged by the wife in First Appeal No. 395 of 1974. As the dispute is between the same parties and the evidence is recorded in Parsi. Matrimonial Suit No. 3 of 1971 I shall dispose of these appeals and cross objections filed therein by this judgment.

(2.) The opinion of the delegates was that Gustadji was entitled to a decree for divorce on the ground that the parties had no marital interco- urse for 3 years or more since the decree or order of judicial separation was passed on December 6 1967 Under the provisions of sec. 47 of the Act an appeal against such a decision lies only on a question of law and the question of law that has been raised in this appeal is whether 3 years period should be counted from the date of the decree of judicial separ- ation passed by the trial court that is December 6 1967 or from the date of the High Court decree confirming the decree of judicial separation that is from November 6 1970 The contention raised was that suit for divorce filed by Gustadji was premature inasmuch as it was filed within 3 years after the date of the judgment in the High Court in appeal that is November 6 1970 Now there is no dispute that if the period of three years is to be counted from November 6 1970 the suit will be premature. But the contention raised by Mr. Oza appearing for the husband is that the period of three years has to be counted from the date of the passing of the decree of judicial separation by the Court of the first instance. Now the present suit is filed under the provisions of sec. 32(h) of the Act which provides so far relevant that any married person may sue for divorce on the ground that a decree or order for judicial separation has been passed aga- inst the defendant or an order has been passed against the defendant by a magistrate awarding separate maintenance to the plaintiff and the parties have not had marital intercourse for three years or more since such decree or order. The intention of the legislature seems to be that the marriage should not be easily or lightly dissolved and even after the decree for judicial separation is passed locus poenitentiae should be given to the married couple to try to come to a settlement. The underlying policy seems to be that the specified period of three years has to be counted after a decree of judicial separation is passed by a court of competent jurisdiction. The period of three years mentioned in the section would commence from the date of passing of the decree by the court of the first instance and the same would be the date of commencement of the period when there is an appeal and the decree is confirmed. What the section emphasis is that a decree for judicial separation must have been passed against a party. If the decree of judicial separation is passed aga- inst a party by the court of first instance the period of three years must be counted from the date of the decree. The material date is the date on which the decree for judicial separation is passed for the first time. The Bombay High Court in SHIRIN VISHNU KRIPALANI V. VISHNU HIRANAND KRIPALANI A.I.R. 1960 BOM. 447 had to consider the provisions of sec. 13 (1A) of the Hindu Marriage Act which are similar to the provisions of sec. 32 of the Act and the Court took the view that the period should be counted from the date when the decree of restitution of conjugal rights or judicial separation has been passed by the Court of the first instance. Applying the aforesaid law to the present case there is no dispute that the decree of judicial separation was passed by the Court of the first instance on December 6 1967 and counting three years there from the present suit for divorce had been filed after the period of three years as provided by sec. 32 (h) of the Act and therefore it cannot be said that the suit is premature. The result is that First Appeal No. 394 of 1974 has to be dismissed and the same stands dismissed. The cross objections in this appeal relate to the quantum of maintenance awarded to the wife and I will consider them with First Appeal No. 395 of 1974.

(3.) Coming to First Appeal No. 395 of 1974 it is apparent that the learned trial Judge granted alimony as per the opinion of the delegates. The delegates opined on the basis of the evidence that the wife was entitled to maintenance at the rate of Rs. 90.00 per month not exceeding her life or till she remained chaste or unmarried. The question which is raised before me is whether the Judge presiding the Matrimonial Court has himself to decide the question of permanent alimony or such a question has to be decided by the delegates. The answer to the question depends upon the construction of sec 40 of the Act which provides s far relevant that the court may if it shall think fit at the time of passing any decree under the 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 husbands 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 instrument shall have been duly exercised or (b) make such monthly payments to the wife for her maintenance and support as the husband may think reasonable. This section gives power to the Court to determine the amount of maintenance which the wife will be entitled. Under this section discretion is given to the court. The word court is defined in sec. 2(2) of the Act meaning a court constituted under the Act. Sec. 18 of the Act provides for the constitution of the special courts under the Act and lays down that for the purpose of hearing suits under the Act a special court shall be constituted in each of the Presidency towns of Calcutta Madras and Bombay and in such other places in the territories of the several State Government as such Governments respectively shall think fit. Sec. 19 of the Act provides that the Chief Justice of the High Court or such other Judge of the same Court as the Chief Justice may appoint from time to time appoint shall be the Judge of such Matrimonial Court and in the trial of cases under the Act he shall be aided by seven delegates. Under the provisions of sec. 24 of the Act the delegates are to be appo- inted by the State Government. Sec. 46 of the Act lays down the questions which are required to be decided by delegates and the questions which are to be decided by the Court. Now the definition of the word court given in sec. 2(2) of the Act is subject to the context to the contrary. Therefore what should be the meaning of the word court as used in various provisions of the Act must depend upon its context. Under sec. 40 of the Act two fold directions are given to the Court; first to determine whether alimony should be allowed and second to determine the amount of alimony. The legislature has deliberately given the discretion to the court with a view to avoid unreasonable and unjust orders being passed under sec. 40 of the Act. The words of the section are very clear and they give jurisdiction to the court to determine the questions relating to the alimony. In SHAVAKSHA BOMANJI BALSARA V. MEHERBAI SHAVAKSHA BALSARA A.I.R. 1938 BOM. 195 B. J. Wadia J. had to consider the word court as used in sec. 39 of the Act. The learned Judge referred to secs. 33 35 39 and 52 of the Act and came to the conclusion that the word court in the Act was used promiscuously and hence must be read in the context in order to determine whether it includes both the Judge and the delegates or the Judge sitting alone particularly as there is a distinct cleavage of functions between the presiding Judge of the Court and the delegates who are appointed to aid him in the adjudication of cases. So far sec. 40 of the Act was concerned the learned Judge observed: Under sec. 40 the Court may at the time of passing a decree on application order that the husband shall to the satisfaction of the Court secure to the wife her maintenance under certain circumstances. I do not think that by the satisfaction of the Court the Legislature intended the satisfaction also of the delegates. In DR. HORMUSJI M. KALAPESI V. DINBAI H. KALAPESI 57 B.L.R. 791 a single Judge of the Court fixed the amount of alimony without assistance of the delegates. In an appeal the amount of alimony was varied but the power of the Court to fix alimony was not questioned. While considering the provisions of sec. 40 of the Act the Division Bench observed that it was necessary to remember that sec. 40 did not impose an obligation on the Court to grant alimony to any claimant who moved the Courts jurisdiction in that behalf. Discretion has been left to the Court in an absolute manner whether to grant or not the prayer for alimony made before the court by any party. The legislature had deliberately given discretion to the court in ample measure with a view to avoid unreasonable or unjust orders being passed under sec. 40 of the Act. It is thus clear that the view which has been taken by the Bombay High Court is that the function under sec. 40 of the Act of determining the grant of alimony or amount of alimony is left to the court that is the presiding Judge and the question has not been left to the delegates to determine the alimony or the amount thereof. In the present case the amount of alimony has been fixed by the delegates; the learned Judge abdicated the function of determining the grant of alimony or the amount of alimony which the law has cast upon him. The consequence is that the decree of alimony fixed as per the opinion of the delegates and without applying courts mind is one without jurisdict- ion. In the present case there is no dispute that the wife is entitled to alimony. The question is of determining the amount of alimony. The parties had led evidence on the record with regard to the maintenance which the wife is entitled to from her husband. The evidence discloses that the husband is the owner and in possession of nearly 21 acres of land. Out of 21 acres of land 16 acres are paddy lands. The husband is also in possession of. two houses. The say of the husband is that his two sisters are sharers in this 21 acres of land but it cannot be accepted in view of the fact that he made a statement before the revenue authorities stating that his sisters had no share in the land. It is therefore clear that the husband is enjoying the income of 21 acres of land. In the proceedings under sec. 488 of the Criminal Procedure Code filed by the wife the Magistrate by consent awarded maintenance at the rate of Rs. 75.00per month but this amount was subject to the civil litigation The evidence led by the husband that the wife herself was earning cannot be accept d. The wife has denied the same and husband has not been able to substantiate his say that the wife is earning herself. The evidence on the record is sufficient to establish that the husband is taking two produces per year out of the land; one is the paddy crop and second is the Juwar crop. It was stated by the brother of the wife in his evidence that .he husbands income per year is Rs. 8700.00 and for this he relied upon the certificate from the panchayat but the same was not proved and hence this evidence cannot be relied upon. The husband is keeping accounts but has not produced the same. Bearing in mind all the evidence on record and conduct of the parties it is reasonable to award Rs. 125.00 per month as maintenance to the wife during her life time or till she remains chaste and unmarried and for this purpose a charge is created on the land bear- ing Survey No. 148 of village Kamalpor admeasuring A. 7 - 8 Gs. The charge shall remain in force till the husbands liability to pay alimony continues. The wife is entitled to maintenance of Rs. 125.00per month from the date of her application The husband to pay costs of the wife of these appeals. Cross objections are dismissed with no order as to costs. Appeal allowed.