RALPH HUGH FRIEDLANDER Vs. KATHLEEN MARJORIE FRIEDLANDER

JUDGEMENT

(1.) This matter raises a question as to the validity of a part of one of the Rules framed in the year 1929 by this Court under Section 62 of the Indian Divorce Act, 1879. The impugned rule is Rule 928 appearing at page 220 of the printed Rules of this Court, and the material part of it is as follows :- The High Court shall not entertain an application for the modification or discharge of an order for alimony, maintenance or the custody of children, unless the person on whose petition the decree was pronounced is at the time the application is made resident in India.

(2.) The facts of the present matter shortly are these. On June 30, 1933, on petition of the present opponent, to whom it will be convenient to refer as the wife, a decree absolute for dissolution of marriage was passed by this Court under the Indian Divorce Act against the present applicant, to whom I will refer as the husband. By later order made on July 14, 1933, the husband was ordered to pay permanent alimony to the wife of an amount of Rs. 75 a month, and a further sum of Rs. 25 a month as maintenance of the daughter of the marriage until this daughter should attain the age of 18 years. Custody of the daughter was with the wife. I am informed that the husband was not represented when the order of July 14, 1933, was made, and no dum sola clause appears in the order. It is not disputed that the wife had left India before the application for alimony and maintenance was filed, that sometime afterwards she re-married and has since lived with her second husband in England. The present applicant, the prior husband, has also remarried and ail along has remained in India. In the year 1942 he made an application for setting aside the order of alimony and maintenance, made in the year 1933, on the ground that he was no longer able to pay, as in addition to his second wife he was now required to support his destitute parents, while his first wife's husband was in a position to support her, and also on the ground that the order of July 14, 1933, was void as it was made in contravention of Section 2 of the Indian Divorce Act which provides, inter alia, that no relief shall be granted under the Act other than a decree for dissolution of marriage or of nullity of marriage, except when the petitioner resides in India at the time of presenting the petition. This application was opposed by the wife, who admitted that her present husband was in a position to support her and was supporting her, but who claimed that the maintenance awarded for the daughter was inadequate and that she devoted all she received under the order to the maintenance to the daughter.

(3.) The application was dismissed on February 21, 1944. Rule 928 was then relied upon by the husband in support of his argument under Section 2 of the Act. In my order I expressed doubt as to the validity of Rule 928, but held the order of July 14, 1933, to be valid notwithstanding Section 2 of the Act, on the basis that an order for alimony and maintenance must be regarded as incidental to the decree for dissolution of marriage, which could be granted under Section 2, even though the wife had already left India when the original petition was filed. I declined to consider modification of the order in view of the wife's statement that she devoted all she received to the daughter's increasing expenditure, but said it would be open to the husband to ask that the order be revised when the daughter attained the age of 18 years.