B ISWARAYYA Vs. SWARNAM ISWARAYYA

JUDGEMENT

(1.) In 1921 the respondent in A.S. No. 169 of 1927 obtained a decree under the Indian Divorce Act of judicial separation from her husband, the appellant. The husband was then ordered to pay Rs. 120 a month to the wife for her own maintenance and Rs. 30 a month to her for the maintenance of each of their four children. In O.P. No. 44 of 1926 on the District Judge's file the wife prayed that the amount to be paid for her maintenance by the husband should be increased to Rs. 260 a month, and in O.P. No. 43 of 1926 the children applied for an increase of the maintenance allowances to be paid by their father for them to Rs. 300 a month in all. The District Judge disposed of both petitions in one judgment. He found that the children were no longer minors under the Indian Divorce Act and that therefore their father could not be ordered to pay maintenance allowances for them under Section 42 of the Act. But he made an order raising the alimony to be paid to the wife to Rs. 310 a month, including in his calculation amounts required for the maintenance and education of the children and Rs. 160 a month for the wife herself. The husband appeals in A.S. No. 169 of 1927 against the District Judge's order so far as it relates to the wife herself and in A.S. No. 201 of 1927 so far as it relates to the children.

(2.) Mr. Muthukrishna Aiyar for the husband contends first, that, the alimony for the wife having been originally fixed under Section 37 of the Act at Rs. 120 a month, the District Judge had no power to raise its amount. Sec. 37 does not in express words provide any power to increase the alimony of a wife once fixed. Mr. Mocket for the wife replies that since 1907 that power has been provided in England by the Statutes which govern the Probate and Divorce Division of the High Court in such matters and from 1866 to 1907 it was provided by the Statutory Rules and Regulations of the Court for Divorce and Matrimonial Causes; and that power can be exercised by the Court in India because Section 7 of the Indian Divorce Act provides that High Courts and District Courts shall act and give relief on principles and rules which in the opinion of the said Courts are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. Mr. Mocket's extreme contention that "rules" in Section 7 of the Indian Divorce Act means the Statutory Rules in farce for the time being in England is in my opinion clearly untenable, If Statutory Rules in force in England were meant, there would be no question of the Courts in this country acting on rules which in their opinion were as nearly as may be conformable to those rules. The provision would have been either that the statutory rules in force in England were to be observed in this country or that the rules to be made under Section 62 of the Indian Divorce Act were to be as nearly as may be conformable to the statutory rules in force in England. In my opinion the words "Principles and rules" in Section 7 of the Indian Divorce Act mean principles and rules of law, of evidence, of interpretation, of practice, and of procedure but not statutory provisions nor statutory rules. The principles and rules to be applied are by the words of the section made subject to the provisions of the Act; they can never run counter to the Act. Mr. Mocket suggests that they may fill up gaps left in the Act. But I am inclined to agree with Mr. Muthukrishna Aiyar that they can neither cut down the provisions of the Act nor supply any form of relief not provided by the Act. However I do not think it necessary to discuss that question in any detail on this occasion as the present case appears to me to turn on other considerations. Mr. Muthukrishna Aiyar in the course of his argument has also compared the provisions of the Indian Divorce Act with the Statutes and the statutory rules in force in England from time to time since 1857. Such a comparison is interesting. But in my opinion it is neither useful nor permissible for the purpose of interpreting the Indian Act unless the provisions of that Act which are in question are of doubtful meaning. If the provisions of the Indian Act are plain, we have no need, and in my opinion we have ho right, to look outside the Act for its interpretation.

(3.) The question here is whether the amount of alimony which the husband has been ordered to pay monthly can be raised by the Court after it has once been fixed. The words of Section 37 of the Indian Divorce Act are "in every such case"--that is on any decree of judicial separation obtained by the wife--"the Court may make an order on the husband, for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable." There is a proviso to that part of the section which I will discuss later. But in itself, as that provision stands, and leaving out of consideration any interpretation, judicial or otherwise, which has been put on similar provisions elsewhere, does it mean that an order for payment, by the husband once made can never be varied, that the amount to be paid can never be raised by the Court? Does it mean that one order only can be made in the wife's favour? The Court is to fix the sum which ,it thinks reasonable. What is reasonable to- day may be unreasonable a few years hence. Where the husband has property on which a gross sum or an annual income can be secured to the wife, the earlier part of the section provides for that being done. The part of the section with which we are dealing appears to apply to other cases, where the husband has no such property, or no sufficient property, but is earning or receiving an income, out of which he can properly be ordered to make payments to the wife. Such an income in very many cases will be variable. A husband who depends on his own earnings may be earning nothing at the time when his wife obtains a decree of judicial separation against him. A year later he may have obtained a good appointment and be earning a large income. If the Court's power is restricted to the time when the decree is made, in such a case it would not be reasonable to make any order for payment to the wife at all. Does this part of the section mean that in such a case the wife can never get an order for payment of alimony? If it is suggested that the Court can make an order for payment after the decree but not necessarily at the time of the decree and then its power is exhausted, the result is hardly more reasonable. A husband may at the time when the first order is made be earning a very small income, out of which he cannot make any payment sufficient for the maintenance of his wife, but later on he may be earning thousands a month. Does the section tie the hands of the Court so as to prevent an order for the payment of proper alimony to the wife when it is obvious that the husband can well afford it? When a Court is given power to make a continuing order reasonable in the circumstances, by what principles of interpretation can we say that that implies power to make only one order applicable to one set of circumstances, which can never be varied, however gravely the circumstances may vary? And, when we remember the particular kind of circumstances to which this part of the section applies, that is cases in which a proper provision cannot be made for the wife out of the property of the husband but can be made out of his income, I see nothing in the words used to drive us to the conclusion, unreasonable in itself and not necessarily implied in the words, that the Court can do no more than make once and for all a single order in favour of the wife and then its power is spent.