Himachal Pradesh High Court
Kubja Devi vs Shri Ishwar Dass on 24 November, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO(HMA) No. 138 of 2010.
.
Date of decision: November 24, 2016.
Kubja Devi. ......Appellant.
Versus
Shri Ishwar Dass. ......Respondent.
of
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1Yes.
For the appellant : Mr. Surinder Saklani, Advocate.
For the respondent : Mr. R.K. Gautam, Sr. Advocate with
Ms. Megha Kapur Gautam,
Advocate.
Dharam Chand Chaudhary, J. (Oral)
Appellant, hereinafter referred to as the petitioner, is divorced wife of the respondent. She is aggrieved by the order dated 2.3.2010 passed by learned Additional District Judge, Mandi in an application under Section 25(2) of Hindu Marriage Act registered as HMP No. 30 of 2005 whereby her prayer for enhancement of maintenance allowance/alimony amount from `450/- per month to `6000/- per month has been dismissed.
1Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 22. The facts are not in controversy. The petitioner was admittedly wife of the respondent. The petitioner-wife had filed .
a petition under Section 10 of the Hindu Marriage Act for a decree of judicial separation. The petition was allowed by learned District Judge Mandi, Kullu and Lahaul & Spiti districts at Mandi on 31.1.1983. The respondent-husband has filed an of appeal registered as FAO No. 76 of 1983 in this Court against the judgment and decree passed by learned District Judge, Mandi.
rt During the course of proceedings in the appeal before this Court the petitioner and respondent have agreed to dissolve the marriage by a decree of customary divorce. The divorce deed in original has been produced in evidence by the petitioner and marked as Ext.DA. In terms of this document, the parties mutually agreed for payment of `450/- per month towards alimony/maintenance allowance to the petitioner by her husband, the respondent, till her death or she remarried. There is no controversy so as to the payment of `450/- per month by the respondent to the petitioner for her maintenance. However, her grouse is that with the passage of time the income of her husband, the respondent, is increased, therefore the monthly maintenance `450/- also deserves to be enhanced accordingly and as such, in the petition under Section 25(2) of the Hindu Marriage Act she filed in the trial Court claimed a sum of `6000/-
per month by way of such enhancement.
::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 33. Learned trial Judge has framed the following issues in the petition:
.
1. Whether the petitioner is entitled for enhancement of the alimony amount, if so, to what extent? OPR
2. Whether the petition is not maintainable? OPR
3. Whether the petition is lamentably delayed and she is estopped from filing the petition? OPR of
4. Relief.
4. Learned trial Judge after having taken on record the rt evidence and also hearing the parties on both sides has arrived at a conclusion that since the petitioner at the time of dissolution of her marriage with the respondent by a decree of customary divorce had agreed to receive `450/- per month till her death or remarriage as maintenance allowance and that there is no stipulation in the divorce deed Ext.DA that she will have right for further enhancement of the maintenance allowance, therefore, her claim for enhancement of the alimony/maintenance allowance is not sustainable. The petition, as such was ordered to be dismissed vide order under challenge in this appeal.
5. After hearing the matter at length, in the light of the given facts and circumstances and also the evidence available on record as well as the law cited at the Bar, it would not be improper to conclude that the agreement qua the payment of a sum of `450/- per month to the petitioner as maintenance allowance in terms of the divorce deed Ext.DA cannot be treated ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 4 as an estoppal to debar the petitioner for seeking enhancement of the amount of alimony in the changed circumstances. The law .
on the issue is no more res integra. The High Court of Tripura at Agartala in Harilal Sarkar vs. Subhra Sarkar, (2016) 165 AIC 784 :
2016 SCC OnLine Tri 356 a case having similar facts has held that an order qua maintenance allowance based on the of settlement/compromise during the course of proceedings in a divorce petition has to be treated an order of maintenance rt passed under Section 25(1) of the Hindu Marriage Act and as such a petition for enhancement of the amount filed under Section 25(2) of the Act is maintainable and not barred by the principle of estoppal. It is seen that three points were formulated by learned Judge after taking into consideration the provisions of law and also the law laid down by various high Courts by way of judicial pronouncements and has held as under:
"10. On the face of the submission made by the learned counsel for the parties, 3(three) pertinent questions have emerged for consideration, which are as under :
(i) Whether by agreement the
jurisdiction of the competent court
under Section 25(2) of the Hindu
Marriage Act, 1955 can be ousted?
(ii) Whether the judgment and order dated 14.09.2010 is the order of ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 5 maintenance under Section 25(1) of the Hindu Marriage Act or not?
.
(iii) Whether the right to future maintenance is transferrable and if not whether the settlement is void, so far the terms of maintenance is concerned ?
WHETHER BY AGREEMENT THE
JURISDICTION OF THE COMPETENT
of
COURT UNDER SECTION 25(2) OF THE HINDU MARRIAGE ACT, 1955 CAN BE OUSTED?
rt
11. By agreement, jurisdiction of the court which has been created by a statute cannot be taken away. Section 25 as a whole confers the jurisdiction on the competent court to provide permanent alimony and maintenance "
at the time of passing any decree or at any time subsequent thereto," on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay maintenance and support such gross sum (alimony) which is factored by various element as statutorily provided or by the law as developed in the course of time. It is no more res integra that if any agreement comes in conflict with any valid statute or its provision that becomes unlawful agreement and void in ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 6 terms of Section 23 of the Indian Contract Act. Hence the jurisdiction of .
the court for granting maintenance at the time of passing any decree or subsequent thereto cannot be taken away by the settlement/agreement. It is true that if the order is passed under Section 25(1) of the Hindu of Marriage Act, 1955 in that case the competent court may vary, modify or rescind any order of maintenance or rt gross maintenance in a change in the circumstance under Section 25(2) of the Hindu Marriage Act, 1955. But at the same time, if any settlement which has been acted on by the court or recorded, the parties thereto cannot in the ordinary course take the stand contrary thereto and in that case, their action might be hit by the principle of estoppel, if not, such stand emanates from the statute.
WHETHER THE JUDGMENT AND
ORDER DATED 14.09.2010 IS THE
ORDER OF MAINTENANCE UNDER
SECTION 25(1) OF THE HINDU MARRIAGE ACT OR NOT?
12. There was a compromise petition before the court on settlement of the quantum of the maintenance ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 7 which was termed as the fixed maintenance and the court had given its .
approval by passing the compromise
decree on granting divorce and
maintenance. It is a well accepted
proposition that compromise decree
pertains the charter of agreement and the decree is drawn accordingly. It can of perhaps be said that the quantum of maintenance under the decree was not the result of any decision by the court, rt it was the result of an agreement between the parties, which was acknowledged by the court, for purpose of making it executable at the instance of maintenance-holder.
13. In Seshi Ammal and another Vs. Thaiyu Ammal, reported in AIR 1964 Madras 217(V 51 C 61), the Madras High Court has enunciated the law holding that such a case will be one where the maintenance is fixed by a decree of court though the basis of it was an agreement it will come directly under Section 25. Thus, the respondent will be entitled to have an enhancement of maintenance once she proves that there has been a material change in the circumstances justifying the enhancement. Therefore, even if agreement relating to the quantum may ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 8 be the part of the settlement but when the decree passed on adopting the said .
settlement it becomes the order under Section 25(1) of the Hindu Marriage Act. And as such the court has the statutory jurisdiction under Section 25(2) to direct enhancement of the maintenance with a change in the of circumstances. The said manner may not be applicable in the case where the rt permanent alimony has been settled and paid by means of one-
time payment. That payment has to be treated as the property transferred for purpose of maintenance.
WHETHER THE RIGHT TO FUTURE MAINTENANCE IS TRANSFERRABLE AND IF NOT WHETHER THE SETTLEMENT IS VOID SO FAR THE TERMS OF MAINTENANCE IS CONCERNED ?
14. Section 6(dd) of the Transfer of Property Act has been incorporated by the Amending Act, 1929. Prior to the amendment there was a conflict of opinion on whether a right of future maintenance when it was fixed by a decree, was transferable. The Madras High Court held that it was, in (Rajah D.K. Thimmanayanim Bahadur Varu, Rajah of Kalahasti and others Vs. ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 9 Rajah Damara Kumara Venkatappa Nayanim Bahadur Varu and others .
reported in AIR 1928 Madras 713), but the Calcutta High Court ruled that it was not. Asad Ali Mokat Vs. Haidar Ali reported in 1910 (ILR) 38 Cal 13 did not agree with the decision of Madras High Court. The words 'in whatsoever manner of arising, secured or determined' as appearing are very comprehensive and it rt is submitted that they overrule cases in which when the right has been created by a deed of transfer, it was held that the question whether the right was alienable depends upon the intention of the parties as expressed in the deed.
15. The Privy Council in Lal Rajindra Narain Singh alias Lallu Sahib Vs. Mt. Sundar Bibi reported in AIR 1925 PC 176 held that a right of future maintenance cannot be attached as the right to future maintenance is not capable of transfer. In this regard provisions of Section 60 of the Code of Civil Procedure, 1908 can be referred as co-terminous provision of Section 6(dd) of the Transfer of Property Act as the said provision operates in the similar field, for protection of right of future maintenance from attachment. Therefore, so far the ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 10 settlement is concerned the parties can determine in whatsoever manner .
the maintenance in the circumstances when the settlement or the compromise was struck. In this case, the decree dated 14.09.2010 as passed by the Judge, Family Court, West Tripura in T.S.(Divorce) No. 183 of 2010 is of couched with the order of maintenance though the quantum, has emerged from an rt agreement as stated, and such order has been passed under Section 25(1) of the Hindu Marriage Act, 1956.
There can be no other interpretation, harmonious to the object of Section 25 of the Hindu Marriage Act, 1955. The determination of the maintenance was in the circumstances which existed at the time of execution of the settlement/ compromise cannot extinguish the authority of the court as provided under Section 25(2) of the said Act. If the word 'fixed' quantifying the maintenance is attributed and read in its literal meaning, such agreement shall come in conflict with the statutory provision and the public policy, hence, that part of the agreement shall be void in terms of Section 23 of the Indian Contract Act. In the event of permanent alimony, as settled and as termed as the property for ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 11 maintenance will not come within the province of Section 25(2).
.
16. Hence, there is not illegality when the Judge, Family Court, Agartala exercised the jurisdiction under Section 25(2) of the Hindu Marriage Act by enhancing the maintenance from of Rs.4000/-to Rs.6000/-. Even if, a fixed maintenance allowance is agreed upon towards rt a decree of divorce, the quantum if accorded and recorded by the court, has to be understood for purpose of maintenance within the ambit of Section 25(1) of the Hindu Marriage Act and with the change in the circumstances the same shall be liable to be re-assessed under Section 25(2) of the Hindu Marriage Act. The statutory purpose is very simple is to preserve the value of the maintenance allowance. This statutory principle shall equally apply when the maintenance to be paid periodically in terms of any settlement.
17. Having held so, we do not find any merit in this appeal from the order and accordingly the same is dismissed".
::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 126. Similar is the ratio of High Court of Allahabad in Ram Shanker Rastogi vs. Smt. Vinay Rastogi, AIR 1991 Allahabad .
255. The facts of this case were also identical to the present one before this Court. It has been held in this judgment that the plea of estoppal or res judicata cannot be invoked in a case of this nature nor the question of maintainability of petition under of Section 25(2) for enhancement of maintenance allowance previously awarded by a consent order cannot be raised. This rt judgment reads as follows:
"10. Neither the provisions of S. 11 of the Code of Civil Procedure nor the principles of res judicata will bar a suit for maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree had been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final.
11. The case of Hirabai Bharucha v. Pirojshah Bharucha, AIR 1945 Bombay 537, stems from proceedings under S. 40 of the Parsi Marriage and Divorce Act, 1936. Under this provision, a Court is authorised to award permanent alimony to a wife either at the time of the passing of any decree under that Act or ::: Downloaded on - 15/04/2017 21:37:03 :::HCHP 13 subsequently thereto. The wife is granted a decree of divorce. After the decree is .
passed, the husband and wife arrive at certain consent terms. One of the terms of the consent order is :
"This Court doth declare that the defendant hereby agrees not to claim of any alimony now or at any time in future.".
rt The wife applies under S. 40 for alimony. It is held that on grounds of public policy the wife cannot enter into a contract that she will not claim any alimony in future. The contract is void and the Court will take notice of that and ignore that part of the order although it was made by consent. Reliance is placed upon a remark by Lord Atkin :
"The wife's right to future maintenance is a matter of public concern which she cannot barter away."
Accepting this proposition, the learned Judge takes the view that the wife cannot barter away her right to future maintenance and enter into a contract to that effect and such a contract will be a void contract in the eye of law.
12. Let us now read Section 25.
Subsection (1), inter alia, provides that ::: Downloaded on - 15/04/2017 21:37:04 :::HCHP 14 any Court exercising jurisdiction under the Act may, at the time of passing any .
decree or at any time subsequent thereto, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the of applicant as, having regard to the respondent's own income and other property, if any, the income and the rt other property of the applicant, the conduct of the parties and other circumstances of the case, which may seem to the Court to just. Sub-section (2) may be extracted :--
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just."
Admittedly, the Second Civil Judge exercised powers under the Act while passing a decree of divorce under S. 13 and, as already indicated, he passed an order fixing a certain sum as the monthly maintenance allowance for the wife. The Court did not pass any order that the wife will not claim an ::: Downloaded on - 15/04/2017 21:37:04 :::HCHP 15 enhancement of the maintenance allowance in future Assuming a wife .
gives up her right to claim a higher rate of maintenance allowance in future her consent, in our opinion, will not bring into existence a valid contract. Such an agreement will not only defeat the provisions of subsection (2) of S. 25 but of will also frustrate the purpose of giving maintenance allowance. Judicial notice rt can be taken of rising prices with the result that the cost of bare existence is regularly rising, rather mercurially. In principle, it makes no difference between an agreement by a wife not to claim any alimony at all and an agreement not to claim any enhancement of the rate of maintenance allowance, whatever be the change in the circumstances".
7. Now if adverting to the facts of this case, the respondent while in the witness box as RW1 has admitted that at the relevant time when the deed of divorce Ext.DA was executed and he agreed to pay `450/- per month as maintenance allowance to his wife the petitioner his salary was `3300/-.
According to him, at the time of his retirement his salary was `16,000/- per month. The salary certificate Ext.PW2/A reveals that his total salary as on 31st January 2008 was `23,204/- per month. He retired as Regional Manager from Himachal Road ::: Downloaded on - 15/04/2017 21:37:04 :::HCHP 16 Transport Corporation after superannuation on 29.2.2008. The petitioner though claimed that she has no source of income and .
that during these days of exorbitant prices it is not possible for her even to meet with requirement of both ends meal.
However, even if it is believed that she is owner in possession of some land which according to respondent is measuring 4-2-10 of bighas it cannot be believed by any stretch of imagination that income from the produce thereto is sufficient for her maintenance.
rt The only plea of the respondent that she has earning from selling illicit liquor is not available to him because manufacturing of illicit liquor and its sale is an illegal act and a husband is not expected to force his wife to indulge in any such illegal activity for earning her livelihood.
8. By way of leading additional evidence respondent intends to produce in evidence the copy of FIR No. 301 dated 27.8.2010 registered in Police Station Balh under Section 61 of the Punjab Excise (HP amendment) Act, 1965 which was registered against the petitioner. Since the maintenance allowance is not sufficient, therefore, in case the FIR is rightly registered against her it is her husband the respondent who by not maintaining her properly has compelled her to indulge in such unlawful activity. The FIR even if taken on record and allowed to be produced in evidence will hardly of any help to the ::: Downloaded on - 15/04/2017 21:37:04 :::HCHP 17 case of the respondent. Therefore, the application being devoid of any merit is ordered to be dismissed.
.
9. Mr. Surinder Saklani, Advocate, learned Counsel has strenuously contended that the settlement of `450/- per month as maintenance allowance at the time of dissolution of the marriage of the parties by a decree under customary divorce is of hardly of any consequences nor debar the petitioner from seeking enhancement of the maintenance allowance. According rt to Mr. Saklani there cannot be any estoppal against the statutory provisions and as Section 25(2) of the Hindu Marriage Act extends a right in favour of the wife for seeking enhancement of maintenance allowance. The agreement qua payment of `450/-
towards maintenance allowance does not come in the way of petitioner to seek further enhancement.
10. The respondent is a retired officer from Himachal Road Transport Corporation. It can be reasonably believed that he is getting a handsome amount by way of pension and must have get some amount towards his retiral benefits. True it is, that number of dependants upon him is six. It can reasonably be believed that to maintain a family having six family members is difficult during these days. The facts, however, remain that the respondent must spare additional amount for the maintenance of the petitioner also so that she can lead honorable life and is also not forced to starve. Therefore, having regard to all pros and ::: Downloaded on - 15/04/2017 21:37:04 :::HCHP 18 cons though the petitioner is not entitled to enhancement of the maintenance allowance at `6000/- per month, however, .
payment of `2500/- per month to be payable to her from the date of filing of this appeal in this Court i.e. 3.5.2010 would serve the ends of justice. The arrears towards maintenance allowance in terms of this judgment shall be deposited by the respondent in of the trial Court in four equal installments. He shall deposit the first installment on or before 31st March, 2017, the second on or rt before 30th September 2017, the third by 31st March, 2018 and the last and final by 30th September, 2018. The maintenance allowance from December 2016 onwards shall however be paid by him at the enhanced rates i.e. `2500/-. The failure of the respondent to adhere to the payment schedule as directed shall result in initiation of execution proceedings against him and in that event he shall be liable to pay the amount/balance amount together with interest @6% per annum.
11. With the above observations, the appeal stands disposed of.
12. Pending application(s), if any, shall also stand disposed of.
(Dharam Chand Chaudhary), Judge.
November 24, 2016, (vs) ::: Downloaded on - 15/04/2017 21:37:04 :::HCHP