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2016 DIGILAW 126 (TRI)

Harilal Sarkar v. Subhra Sarkar (Choudhury)

2016-06-14

S.TALAPATRA, U.B.SAHA

body2016
JUDGMENT : S. Talapatra, J. This is an appeal from the order dated 20.03.2015 delivered in Case No. Misc. 72 of 2012 by the Judge, Family Court, Agartala, West Tripura under Section 25(2) of the Hindu Marriage Act. 2. By the said order dated 20.03.2015, the maintenance allowance from Rs.4000/-per month as determined on mutual consent by the appellant and the respondent by way of settlement, which has been recorded in the joint compromise petition (solenama) filed in Title Suit (Divorce)183 of 2010, has been enhanced to Rs. 6000/- per month in favour of the respondent. 3. The facts are mostly admitted. The respondent wife filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 being Title Suit (Divorce) 183 of 2010. In the pendency, both the appellant and the respondent struck a settlement towards the divorce on the terms and conditions, inter alia, that the appellant shall pay the fixed maintenance at Rs. 4000/-per month to the respondent and her minor daughter namely Ms. Anamika Sarkar and as such the amount of maintenance shall be treated as fixed and final. 4. It was further settled that till the minor daughter's marriage or till she earned her livelihood, the appellant shall continue to pay the maintenance at the said rate but in the event of marriage of their daughter or she started earning of her livelihood, the maintenance shall come down to 50% meaning restricting to the share of the respondent herein. The respondent however would get maintenance till her death. However, in case of the remarriage, the respondent shall not get any maintenance. The respondent by filing an application under Section 25(2) of the Hindu Marriage Act claimed that the circumstances has changed and in the changed circumstances the rate of maintenance shall be increased for defraying the expenses of a modest livelihood. 5. The appellant herein raised serious objection contending that the basis of the compromise for purpose of passing the compromise decree of divorce was fixed maintenance and as such the court should not have exercised its jurisdiction under Section 25(2) of the Hindu Marriage Act, 1955. According to the appellant, unless the terms of the compromise are challenged and interfered, the respondent is not entitled to the higher rate of maintenance. According to the appellant, unless the terms of the compromise are challenged and interfered, the respondent is not entitled to the higher rate of maintenance. On discarding such objections by the impugned order dated 20.03.2015, the Judge, Family Court, Agartala, West Tripura has enhanced the maintenance from Rs.4000/-to Rs.6000/-per month with effect from 01.03.2015. The said maintenance is for the respondent and her minor daughter, to be paid in the same mode as provided by the judgment and order dated 14.09.2010 delivered in Title Suit (Divorce) 183 of 2010. In the impugned order the Judge, Family Court, Agartala, West Tripura has observed that : "I find that the suit was disposed of on compromise for payment of maintenance allowance for the petitioner and her minor daughter @ Rs. 4000/-per month. There is also no such terms in the judgment to the effect that there would be no enhancement of such maintenance allowance in future . Now Section 25(2) of the Hindu Marriage Act, 1955 empowers the court to modify any such order of maintenance in any changed circumstances." 6. The appellant has raised two pronged objections to question the legality of the order dated 20.03.2015. The objections are : i) The Judge, Family Court, Agartala, West Tripura misread the terms of the settlement in respect of maintenance, based on which the judgment dated 14.09.2010 had been passed in Title Suit (Divorce) 183 of 2010. According to the appellant in terms of the settlement it has been clearly stated that the maintenance amount would be fixed. ' Fixed ' means and implies that there would be no change even under the changed circumstances in the quantum of the maintenance. The respondent has been estopped by such term to claim the higher maintenance by invoking Section 25(2) of the Hindu Marriage Act, 1955. ii) Section 25(2) of the Hindu Marriage Act cannot have any application when the matter is compromised and the petition for divorce is filed on mutual consent under Section 13(B) of the Hindu Marriage Act. The court cannot invoke its jurisdiction under Section 25(2) of the Hindu Marriage Act unless the order of maintenance is passed under Section 25(1) of the Hindu Marriage Act. 7. Mr. P.K. Dhar, learned counsel appearing for the appellant has submitted that ' admittedly ' the maintenance was ordered based on the settlement/compromise and not under Section 25(1) of the Hindu Marriage Act. 7. Mr. P.K. Dhar, learned counsel appearing for the appellant has submitted that ' admittedly ' the maintenance was ordered based on the settlement/compromise and not under Section 25(1) of the Hindu Marriage Act. Unless the order of maintenance is passed under Section 25(1) the jurisdiction as provided under Section 25(2) of the Hindu Marriage Act cannot be exercised inasmuch as Sub-section 25(2) of the Hindu Marriage Act provides as under : "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." [Emphasis added] 8. From the other side Mr. S. Lodh, learned counsel appearing for the respondent has submitted that the terms of settlement so far maintenance is concerned is unlawful inasmuch as right to future maintenance cannot be transferred inasmuch as Section 6(dd) of the Transfer of Property Act provides that " A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred" and as such the appellant is not entitled to enforce such terms against the respondent neither the appellant is entitled to contend that the respondent is estopped from raising claim for the higher rate of maintenance as estoppel does not operate against the law. In this respect Mr. S. Lodh, learned counsel has referred a decision of the Calcutta High Court in Bijan Kumar Chakraborty Vs. Smt. Suchandra Bardhan reported in 2000 (4) CCC 504 (Cal.) 9. According to Mr. Lodh, learned counsel, the basic fact of that case has very close resemblance with this one. In that case the suit was decreed and the marriage was dissolved between the parties by a decree on compromise. But there was no decree for payment of permanent maintenance. The wife, subsequent to drawing up of the decree, filed an application under Section 152 read with Section 153 of the Code of Civil Procedure claiming permanent maintenance. The husband contended that it was not open to the court to enhance the rate of monthly maintenance by entertaining application filed by the wife. The wife, subsequent to drawing up of the decree, filed an application under Section 152 read with Section 153 of the Code of Civil Procedure claiming permanent maintenance. The husband contended that it was not open to the court to enhance the rate of monthly maintenance by entertaining application filed by the wife. The provisions of Section 6(dd) of the Transfer of Property Act can have no manner of application in such a situation inasmuch as Section 6(dd) of the Transfer of Property Act provides that "a right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred". The Calcutta High Court rejected the objection holding that "In view of our discussion 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. " 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 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 COURT UNDER SECTION 25(2) OF THE HINDU MARRIAGE ACT, 1955 CAN BE OUSTED? 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 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 Marriage Act, 1955 in that case the competent court may vary, modify or rescind any order of maintenance or 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 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 perhaps be said that the quantum of maintenance under the decree was not the result of any decision by the court, 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. 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 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 circumstances. The said manner may not be applicable in the case where the 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. 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 arising, secured or determined’ as appearing are very comprehensive and it 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. 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 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 couched with the order of maintenance though the quantum, has emerged from an 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, thence, 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 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 Rs.4000/-to Rs.6000/-. Even if, a fixed maintenance allowance is agreed upon towards 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.