JESSIE GRANT KHAMBATTA Vs. MANCHERJI C KHAMBATTA

JUDGEMENT

(1.) THIS is an application for an order of attachment against the husband in a divorce suit. I made an order on July 12 last that the husband should pay Rs. 6,400 within four days, that amount being the arrears of alimony pendente lite which I had directed the husband to pay at the rate of Rs. 400 a month from April 1, 1939, and in respect of which he had not paid a single rupee. I further directed him to pay alimony at the rate of Rs. 200 a month to his wife and to pay the costs. He has paid nothing either in respect of the arrears of alimony or the current alimony or the costs, and an application is made that he should be arrested and sent to prison.

(2.) THE first point taken by Mr. Chagla on behalf of the wife is that the proviso to Section 51 of the Civil Procedure Code, which was added by recent amendment, does not apply to an order for alimony. THE order for alimony was made under Section 37 of the Indian Divorce Act, and by Section 55 of the Indian Divorce Act it is provided that all decrees and orders made by the Court in any suit or proceeding under the Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced. Section 51 of the Civil Procedure Code enables the Court on the application of the decree-holder to order execution of the decree, amongst other means, by arrest and detention in prison, and then comes the proviso that where the decree is for the payment of money execution by detention in prison shall not be ordered unless, after giving, the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied upon various matters. Mr. Chagla contends that a decree for alimony is not a decree for the payment of money within the meaning of the proviso-THEre is no doubt that a decree for alimony is a decree of a special character, the nature of which has been discussed in a good many cases, and particularly in a decision of the English Court of Appeal in Linten v. Linton (1885) 15 Q. B. D. 239. A decree for alimony does not create a debt which can be proved in bankruptcy, and an order of discharge in bankruptcy does not discharge the liability under a decree for alimony. But at the same time it seems to me impossible to say that a decree for the payment of arrears of alimony is not a decree for the payment of money within the meaning of the proviso to Section 51. THE strongest argument in favour of Mr. Chagla is that under Section 55 (3) of the Code the Court is required, where a judgment-debtor is, arrested in execution of a decree for the payment of money and brought before the Court, to inform him that he may apply to be declared an insolvent, and it is clear that in dealing with a decree for non-payment of alimony, at any rate in respect of future alimony, he cannot apply in insolvency. But I do not think that is sufficient to justify me in saying that a decree for the payment of arrears of alimony is not a decree for the payment of money within the Civil Procedure Code. In my opinion, therefore, before ordering arrest and detention in prison I have to be satisfied as to the matters covered by the proviso.

(3.) IN connection with proviso (a) (ii) to Section 51, Sir Jamshedji Kanga on behalf of the respondent has contended that the suit in which the decree was passed is the petition for permanent alimony, and the acts of bad faith referred to in my judgment were before that petition was presented. But I am clearly of opinion that that is not the right view. The suit in which the decree was passed is the divorce suit; there can be no doubt to my mind about that. Under Section 37 of the INdian Divorce Act the Court can make an order for permanent alimony on making the decree absolute, although usually the order is made after that date. But if the circumstances justify it, the Court can make the order at once on making the decree absolute, and it is quite wrong to suppose that a petition presented afterwards is not a petition in the suit. IN the present case the petition shows on the face of it that it is a petition in the divorce suit. Therefore, I am clearly of opinion that the acts of bad faith in relation to his property must be committed only after the date of the petition of divorce. As appears from my previous judgment, he had, after the date of the petition for divorce, consented, with very little delay, to an order absolute for foreclosure of his valuable house at Nepean Sea Road in favour of his sister, and though I was not prepared to disregard that decree for the purpose of fixing alimony, I am certainly of opinion that his consent to the decree, at the time and in the circumstances, was an act of bad faith as against his wife. He had also after the date of the divorce petition created a second mortgage on the property for Rs. 50,000, and I held that he had received that Rs. 50,000 and had given an entirely untrue explanation of what he had done with it, I disbelieved his explanation which was not supported by any evidence at all. I am of opinion that that was clearly an act of bad faith.