AUDUMBAR GANGARAM Vs. SONUBAI AUDUMBAR

JUDGEMENT

(1.) THIS appeal arises an interesting question under Hindu Law and also the provisions of the Bombay Hindu Divorce Act and the Hindu Marriage Act, 1955. Appellant No. 1 Audumbar who would hereafter be called the husband, was married to Sonubai, the respondent who would hereafter be called the wife, in the month of March 1946. The husband filed a suit against the wife being Suit No. 664 of 1952, asking for divorce on the ground that the wife was living in adultery with one Baba Mahadu who was also added as a co-respondent in that suit. On that ground and also on the ground of desertion the husband asked for dissolution of the marriage under the provisions of the Bombay Hindu Divorce Act 1947. The wife resisted the suit and denied the allegations made by the husband on both the points viz. adultary and desertion. On 11th March 1954 there was a compromise between the husband and the wife under which it was settled that these spouses should pass divorce deeds according to the custom of the caste, that the husband should withdraw the allegations unconditionally made against the wife in the plaint and that the husband should give maintenance to the wife till her re-marriage or till her death. The parties however could not agree on the quantum of maintenance and therefore they submitted this dispute to arbitrator Dattatray Shivram Patil for decision. On the 12th March 1954 Datatraya Shivram Patil gave his award by which he allowed the maintenance at the rate of Rs. 30 p. m. The award further provided that the wife was entitled to receive this amount from the husband till she re-married or till her death and that she would be entitled to that amount irrespective of the consideration as to whether she remained chaste or unchaste. The husband then withdrew the suit the same day i. e. 12th March 1954. The wife filed a suit being Suit No. 268 of 1954 for obtaining a decree in terms of the award. The husband put in his written statement and contended that the clause relating to the provision of maintenance to the wife irrespective of the consideration whether she was leading a chaste or unchaste life, is opposed to public policy and therefore that clause should not be embodied in the decree. On 14th February 1955 the Court passed an order for drawing up a decree in terms of the award except the clause relating to the right of the wife to receive maintenance irrespective of as to whether she was leading a chaste or an unchaste life. The same day a decree was drawn up in terms of the award so far as the quantum of maintenance is concerned and so far as the provision that the wife would be entitled to receive the amount of maintenance till her remarriage or till her death, was concerned. The wife started execution proceeding under Darkhast No. 272 of 1955 for the recovery of the amount in terms of the award decree. The husband appeared and stated that the wife was living in adultery with one Ramchandra Shingte. He therefore contended that she was not entitled to execute the award decree because of her aforesaid act of unchasting. The executing Court referred the husband to file a separate suit. It may be mentioned that in the award decree the charge for the maintenance was kept on the family property. The joint family of the husband comprised of himself and his father. On 9th April 1955 the husband and his father together filed a suit being Suit No. 255 of 1955 which has given rise to the present second appeal, for a declaration that the award decree has become unexecutable by reason of her subsequent act of unchastity and for an injunction restraining her from executing the decree. The trial court held that the wife was living in adultery with Ramchandra Shingte. Consequently the trial Court decreed the suit. The wife preferred an appeal and the learned Assistant Judge to whom the appeal was transferred held that the decree for maintenance was based on a contract and not on principles of Hindu Law and therefore concluded that the fact that the wife was living in adultery after the passing of the decree will not invalidate the decree. Consequently he allowed the appeal and dismissed the suit. It is against that decision that husband Audumbar and his father Gangaram have come up in appeal.

(2.) MR. S. B. Sukhthankar for the husband contended that the real basis for the decree that was passed in Suit No. 268 of 1954 was the provisions of Section 8 of the Bombay Hindu Divorce Act and not the so-called contract. He argued that no contract could possibly entitle the wife to claim maintenance from her husband and for that purpose we will have to fall back upon the provisions of either General Hindu Law or the provisions of the Bombay Divorce Act or the Provisions of the Hindu Marriage and Divorce Act (sic ).

(3.) BEFORE proceeding to discuss the points of law arising in this case, it is necessary to refer to the agreement which is styled as divorce deed passed by the husband in favour of his wife (Exhibit 31) and the reference to arbitration which also bears the same date. Exhibit 31 is styled as a deed of divorcee. In that document the husband states as follows: