PIROJSHAH BHARUCHA Vs. HIRABAI BHARUCHA

JUDGEMENT

(1.) THE petitioner in this application asks for fixing of maintenance by the Court under Section 40 of the Parsi Marriage and Divorce Act, III of 1936. THE respondent filed a suit for divorce against the petitioner and the petitioner had filed a counter-claim for the same relief, and the husband not having pressed his suit, the counter-claim was decreed and the petitioner was granted a decree. After the decree for divorce was passed, parties arrived at certain consent terms in connection with the custody of the children, permanent alimony and provision for the maintenance of the children and the said terms were set out in the consent order. One of the terms of the consent order runs as follows : This Court doth declare that the defendant hereby agrees not to claim alimony now or at any time in future. " When this order was obtained I had drawn the attention of the counsel to the nature of the order and remarked that this part of the order may not be enforceable. But the counsel said they would take that risk. THE petitioner has now made this application to the Court on the ground that at the time when this order was made she was being helped by her brother who maintained her apart from her income by personal exertion to maintain herself, but now that support of her brother has ceased and she applies that the Court should fix maintenance for her. THE question arising on this application is an important one, namely, whether the wife after the dissolution of marriage can give up her claim to future alimony. This question is of importance because I have found in disposing of matters in this Court that parties to several proceedings do make arrangements of this nature which arrangements are incorporated as part and parcel of the consent orders consequent upon decrees for divorce. My attention has also been drawn to the fact that similar orders have been made for a long number of years. When the matter came up for hearing last time, I adjourned it so that counsel may appear on behalf of the respondent and argue this matter, and at my invitation Mr. Khambatta has appeared on behalf of the respondent as amicus curiss. Full arguments have been addressed to me by both counsel and I may say that I am indebted to Mr. Khambatta for the very clear and thorough manner in which he has helped the Court in discussing authorities cited on both sides. THE question before me is one that has been argued before the Courts of law in England for a long number of years. Certain questions have arisen in England where the husband and wife have entered into an agreement by a deed whereby the wife undertook not to ask for maintenance at any future time other than that provided for under the deed, and the question whether such an agreement by the wife made prior to the dissolution of marriage is legal and binding has also been considered. THE question before me is still further complicated by the fact that the agreement relied upon was arrived at by consent of parties and made part of the order of the Court in the form of a consent order between the parties.

(2.) I have therefore to answer two questions, whether such an agreement either before or after dissolution of marriage is binding on the wife, and whether an agreement of this nature (a) is contrary to public policy, and (b) whether the Court will recognize such an agreement where the Court has statutory powers under Section 40 of the Parsi Marriage and Divorce Act, 1936, to grant and fix maintenance. This section is equivalent to Section 190 of the English Divorce Act.

(3.) THE decisive question was as follows (p. 11) : THE decisive question here is whether the present applicant has covenanted not to do what she now seeks to do. In' my opinion, she has not. She covenanted, as a wife, against making, as a wife, any claim upon her husband, as a husband, for support, maintenance or alimony, that is to say, she covenanted not to proceed in a Court having jurisdiction in such matters. She is not so proceeding. She is no longer a wife; but having been the wife of the respondent, she comes to the Court under a statute applicable to her present plight to ascertain whether the Court shall, under the circumstances of her case, deem it right that her some-time husband shall make her some pecuniary allowance.