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2000 DIGILAW 199 (CAL)

BIJAN KUMAR CHAKRABORTY v. SUCHANDRA BARDHAN

2000-04-20

DEBIPRASAD SENGUPTA, TARUN CHATTERJEE

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TARUN CHATTERJEE, J. ( 1 ) THIS appeal has been preferred at the instance of the husband against a judgment and/or order being Order no. 31 dated 6th August, 1996 passed by Sri s. C. Mishra, Additional District Judge, llth court at Alipur, South 24 Parganas in Misc. Case No. 24 of 1994 by which the application filed by the wife/respondent under Section 37 of the SPECIAL MARRIAGE ACT, 1954 (hereinafter referred to as "the Act") was allowed in part. By the judgment under appeal, the Additional district Judge, llth Court at Alipur directed the husband/appellant to pay permanent alimony per month to the wife/respondent at the rate of Rs. 700/- provisionally from the date of filing the application subject to other conditions as entered into by the parties thereto. ( 2 ) WE have heard Mr. S. P. Roychoudhury for the husband/appellant and Mr. R. N. Dutta for the wife/respondent. The only question that needs to be decided in this appeal is whether the permanent alimony granted in favour of the wife/respondent can be enhanced or increased in view of the joint petition for compromise entered into by the parties in which the wife had given up her claim for permanent monthly maintenance in excess of Rs. 400/-or not. ( 3 ) THE facts leading to filing of this appeal may be stated in a nut shell which are as follows:-a matrimonial suit for divorce was filed by the husband/appellant against the wife/respondent. The said suit was decreed by a consent decree passed on 15th November, 1989 by which the marriage between the parties was dissolved but no decree for maintenance was passed therein by the Court. Subsequent to the passing of the decree for divorce, an application under Section 37 of the Act was filed by the wife/respondent. for grant of permanent alimony and by an order being Order No. 12 dated 6th January, 1992, the Court granted permanent alimony at the rate of Rs. 400/-per month with effect from November, 1989. Be it mentioned herein that after the decree for divorce was passed, the husband/appellant continued to pay to the wife/respondent at the rate of Rs. 400/- per month for four months, that is from November, 1989 to February, 1990 in terms of the prayer made in the matrimonial suit. 400/-per month with effect from November, 1989. Be it mentioned herein that after the decree for divorce was passed, the husband/appellant continued to pay to the wife/respondent at the rate of Rs. 400/- per month for four months, that is from November, 1989 to February, 1990 in terms of the prayer made in the matrimonial suit. As noted herein earlier, the marriage was annulled by mutual consent but no decree for permanent alimony was passed although the wife in the joint compromise petition had given up her right to claim monthly maintenance in excess of Rs. 400/ -. An application was also made by the wife/respondent for correction of the decree in order to include the claim for permanent maintenance in the decree. However, this application filed under Section 151 of the Code of civil Procedure was rejected observing that separate proceeding as provided under the law ought to have been taken by the wife/respondent for a decree for permanent maintenance. Subsequent to the aforesaid order granting permanent alimony at the rate of Rs. 400/-per month with effect from November, 1989, the present application under Section 37 of the Act was filed by the wife/respondent for enhancement of alimony from Rs. 400/- to rs. 1200/- per month. In this application, the wife/respondent alleged that at the time of granting permanent alimony at the rate of Rs. 400/- per month, the husband who was a development Officer of Life Insurance Corporation of India, was drawing a salary at the rate of Rs. 3,000/- per month but at the time of filing the present application his gross salary had gone up to Rs. 4867/- + Bonus of rs. 1500/- per month in average. She also claimed in this application that she was suffering from various ailments, her medical expenses had exceeded by Rs. 200/- per month. Accordingly, she prayed for enhancement of permanent alimony from Rs. 400/- to Rs. 1,200/- per month. The husband contested the said application for enhancement of alimony filed by the wife/respondent. In his objection, the husband alleged that since by a compromise decree, a permanent alimony was fixed at Rs. 400/- per month, she was not entitled to any enhanced permanent alimony from him and accordingly, the application must be rejected. 400/- to Rs. 1,200/- per month. The husband contested the said application for enhancement of alimony filed by the wife/respondent. In his objection, the husband alleged that since by a compromise decree, a permanent alimony was fixed at Rs. 400/- per month, she was not entitled to any enhanced permanent alimony from him and accordingly, the application must be rejected. ( 4 ) THE Trial Court after negativing the contention of the husband/appellant that in view of the compromise decree in which the permanent alimony was fixed at Rs. 400/- per month, the Court had no jurisdiction to enhance the said amount any further as the wife/ appellant had given up her right to claim such enhancement in terms of Section 37 of the act, allowed enhancement of permanent maintenance from Rs. 400/- to Rs. 700/- per month provisionally from the date of making the application subject to other conditions as made with the parties thereof. It is this order which is under challenge in this appeal. ( 5 ) IN our view, for the reasons noted hereinbelow, the judgment of the Trial Court cannot be interfered with. ( 6 ) AS noted hereinearlier, the matrimonial suit for divorce was disposed of by the Trial court by mutual consent on 15th November, 1989. The order being Order dated 15th November, 1989 runs as fbllows:-"that the suit be decreed and the marriage between the parties be dissolved by a decree of compromise on mutual consent. " ( 7 ) FROM the aforesaid order of the Trial court granting divorce on mutual consent, it is evident that no decree for payment of permanent maintenance was however, passed by the Trial Court. Therefore in all forms, it must be held that although the prayer for grant of maintenance at the rate of Rs. 400/- per month was prayed but in view of not granting such decree for grant of maintenance, the court had refused to grant such decree for maintenance. That apart, as noted herein earlier, subsequent to the grant of decree for divorce on mutual consent, an application under section 152 read with Section 153 of the code of Civil Procedure was filed by the wife/ respondent in which she prayed for incorpo ration of the decree for grant of permanent maintenance at the rate of Rs. 400/- per month. 400/- per month. That application under Section 152 read with Section 153 of the Code of Civil procedure was rejected by the Trial Court on a finding that the said application was a misconceived one as there was no scope for incorporating the prayer for permanent maintenance in a decree for divorce on mutual consent. The only question that was submitted by Mr. Roychoudhury, appearing on behalf of the husband/appellant is that since there was a compromise decree which was based on a compromise petition filed by the parties in which the wife had waived her right to claim permanent maintenance not more than Rs. 400/-per month, it was not open to the Court to enhance the rate of monthly maintenance by entertaining the application filed by the wife. Mr. Roychoudhury further argued that the Trial court was not justified holding that the enhancement of alimony from one amount to other can be said to be "opposed to public policy" and, therefore, the impugned judgment cannot be sustained in law. In support of th'is contention, Mr. Roychoudhury relied on a decision of the Supreme Court in the case of state of U. P. v. Murari Lal1. Mr Roychoudhury also contended that in the facts and circumstances of this case reliance made by the Trial court on the provisions of Section 6 (dd) of the Transfer of Property Act cannot be accepted. Before we take up the other questions raised by Mr. Roychoudhury, let us first consider whether in the facts and circumstances of this case, the provisions of Section 6 (dd) of the Transfer of Property Act can have any manner of application or not. Section 6 of the Act says that property of any kind may be transferred, except as otherwise provided by this act or by any other law for the time being in force. Section 6 (dd) of the Transfer of Property act however, says that a right of future maintenance, in whatsoever manner arisen, secured or determined, cannot be transferred. From a plain reading of this provisions, we are unable to agree with Mr. Roychoudhury that section 6 (dd) of the Transfer of Property Act cannot have any manner of application to the present case of this nature. From a plain reading of this provisions, we are unable to agree with Mr. Roychoudhury that section 6 (dd) of the Transfer of Property Act cannot have any manner of application to the present case of this nature. ( 8 ) FROM Section 6 (dd) of the Transfer of property Act, it is evident that the wife cannot transfer her right to get maintenace at the rate of Rs. 800/- for a future period or in other words, she cannot transfer her maintenance which has been determined by the agreement, but the same is not due. This section, in our view, cannot say that right to get an enhancement of maintenance can be waived. The transfer of Property Act says that a wife cannot alienate her future maintenance. Therefore, the only thing that needs to be seen that section 6 (dd) of the Transfer of Property Act, can be made applicable in this case when Mr. Roychoudhury for the appellant argued that section 6 (dd) of the said Act had no application. In our view, the Trial Court was fully justified in making an interpretation of section 6 (dd) of the Transfer of Property Act in the manner it has done. In the case of Nitya Nanda v. Sneha lata2, similar question cropped up and chatterjee, J. (as His Lordship then was) after considering few English decisions observed as follows :"what seems to me is that in all these disputes between the husband and wife the Court has jurisdiction to fix the maintenance in the circumstances arising at a particular time. If by any covenant such jurisdiction is ousted, 1 am afraid, that will effect public policy as well. I would respectfully follow what Lord Shaw said in (3) 1929 AC 601 at p. 622 : "the Court is bound to look at such an agreement and to decline to be turned from the performance of its judicial duty or the exercise of its judicial rights when the agreement so tabled is of a nature repugnant to and defiant of those obli-gations which are inherent in the sanc-tity of marriage itself. To hold that, it would bring the law into confusion and the Courts into contempt, for as already indicated, it would be using Courts of law for 'purpose essentially subversive of society. To hold that, it would bring the law into confusion and the Courts into contempt, for as already indicated, it would be using Courts of law for 'purpose essentially subversive of society. Lord Atkin thereafter held in (3) 1929 A. C. 601, at page 629, that a wife's right to further maintenance is a matter of public concern which she cannot barteraway. " (Emphasis added) ( 9 ) IN the said decision, it was further observed as follows :-"every society requires the husband to maintain the wife as a matter of public policy unless there is something in some law which disentitled the wife to get the maintenance. In Hindu law as well there has been provision like that and it went so far as to say that a husband has to maintain an immoral wife after she renounces her immoral relations but the wife's maintenance. Hence, I hold court's power to grant enhanced maintenance or other relief to wife as she would be entitled to get in law, cannot be ousted by mutual contract. " ( 10 ) WE are in respectful agreement with the views expressed by the learned single Judge in the aforesaid decision. Mr. Roychoudhury also could not produce any decision of any court including the Supreme Court where a contrary view was expressed excepting the case reported in State of U. P. v. Murari Lal (supra ). After a perusal of the aforesaid decision of the supreme Court, we have failed to understand how that decision can be applied for the purpose of showing that enhancement of maintenance claimed by the wife against her husband cannot come within the meaning of (opposed to public policy) under Section 23 of the Contract act. In that decision, the Supreme Court was dealing with a case under Section 230 (3)of the Contract Act and it was held by the Supreme court that an agent was not bound by contract on behalf of the principal and a contract entered into by a Government officer on behalf of the Government which has become void by virtue of non-compliance with provisions of Article 299 (1) of the Constitution cannot be enforced against the Government officer entering that contract. Therefore, the decision of the Supreme Court cannot have any manner of application on the question referred to above. ( 11 ) IN view! Therefore, the decision of the Supreme Court cannot have any manner of application on the question referred to above. ( 11 ) IN view! of our discussions made hereinabove and in view of the principles laid down in the aforesaid Single Bench decision of this Court to which we are in full agreement and in which it was held that by mutual contract the right of the Court to grant maintenance at an enhanced rate cannot be ousted we are unable to agree with Mr. Roychoudhury that when only the amount was raised from rs. 400/- to Rs. 700/- per month that would not come within the meaning of "opposed to public policy" under Section 23 of the Contract act. ( 12 ) THE learned lawyer for the wife/respondent however, submitted before us that although no appeal or cross-objection was filed by the wife/respondent even then the Court has still retained the jurisdiction to award enhanced alimony in excess of the alimony granted by the Trial Court. According to the learned counsel for the respondent, in the admitted facts and circumstances of this case, the wife/respondent is entitled to a sum of rs. 1200/- instead of Rs. 700/- as awarded by the Trial Court. Whether the Appeal Court has been conferred with power to enhance the maintenance although no appeal or cross objection was filed is recognised in the case of smt. Chhabi Rani v. Sailendra Nath and anr. 3, and in the case of M/s. Bihar Supply syndicate v. United Salt Work and Industries ltd. 4. In the aforesaid decision of the Supreme court, it appears that the Apex Court of our country has recognised the power of the Appellate court under Order 41 Rule 33 of the code of Civil Procedure to pass necessary or ders which would be required to be passed in the appeal. In a recent decision of the Supreme court in the case of Shri Robindra Kr. Sharma v. State of Assam and Ors. 5, the Supreme Court in no uncertain terms recognised the authority of the respondent to challenge the findings adverse to his at the time of hearing of the appeal. In a recent decision of the Supreme court in the case of Shri Robindra Kr. Sharma v. State of Assam and Ors. 5, the Supreme Court in no uncertain terms recognised the authority of the respondent to challenge the findings adverse to his at the time of hearing of the appeal. Such being the position, we are of the view that the learned lawyer for the wife/ respondent was fully justified in submitting that this Court sitting in appeal can also enhance the permanent alimony although no cross objection or independent appeal was filed by the wife/respondent. Accordingly, we accept the submission of the learned counsel for the wife/respondent. Let us, therefore, consider whether the wife/respondent can be said to be entitled to a sum of Rs. 1,200/- as claimed by her in her application for enhancement of maintenance. Admittedly, the husband is a development officer of the Life Insurance Corporation of India and at the time of filing the application under Section 37 of the Act that is in the year 1994 he was drawing a gross salary of about 6,. 600/ -. It is not disputed before us by Mr. Roychoudhury, appearing on behalf of the husband that in the year 2,000 the salary of the husband has considerably increased. ( 13 ) THEREFORE, we are of the view that even if l/5th of the salary as was received by the husband in the year 1994 when the application for enhancement of the maintenance was filed is taken into consideration, even then 1/5th of Rs. 6,00/- would not be less than rs. 1,200/- per month. Accordingly, we fix the monthly maintenance of the wife not at the rate of Rs. 700/- as passed by the Trial court but at the rate of Rs. 1,200/- per month. The husband is directed to make payment at the said rate to the wife/respondent every month within 15th of each succeeding month, the first of such payment shall be made on or before the 15th May, 2000. The wife/respondent shall also be entitled to arrears of payment which shall be calculated from the date of making the application up to the date of payment. Such arrear shall be paid within four months from this date. However, the husband/appellant will be entitled to adjustment of any amount that has already been paid by him to the wife as monthly permanent maintenance. Such arrear shall be paid within four months from this date. However, the husband/appellant will be entitled to adjustment of any amount that has already been paid by him to the wife as monthly permanent maintenance. The appeal is disposed of accordingly. There will be no order as to costs. Debi Prasad Sengupta, J.-I agree. Appeal disposed of accordingly.