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
Section 25(2) for enhancement of maintenance allowance
previously awarded by a consent order cannot be raised. This
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
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
any alimony now or at any time in
future.".
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
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
applicant as, having regard to the
respondent's own income and other
property, if any, the income and the
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
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
will also frustrate the purpose of giving
maintenance allowance. Judicial notice
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”.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO(HMA) No. 138 of 2010.
Date of decision: November 24, 2016.
Kubja Devi.
V
Shri Ishwar Dass.
Coram
Mr. Justice Dharam Chand Chaudhary, Judge.
Citation: AIR 2017 HP 21
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.
2. 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
appeal registered as FAO No. 76 of 1983 in this Court against
the judgment and decree passed by learned District Judge,
Mandi. 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.
3. 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
4. Relief.
4. Learned trial Judge after having taken on record the
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
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
settlement/compromise during the course of proceedings in a
divorce petition has to be treated an order of maintenance
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
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. 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 onetime
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. 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, 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
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”.
6. 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
Section 25(2) for enhancement of maintenance allowance
previously awarded by a consent order cannot be raised. This
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
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
any alimony now or at any time in
future.".
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
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
applicant as, having regard to the
respondent's own income and other
property, if any, the income and the
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
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
will also frustrate the purpose of giving
maintenance allowance. Judicial notice
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
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
bighas it cannot be believed by any stretch of imagination that
income from the produce thereto is sufficient for her
maintenance. 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
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
hardly of any consequences nor debar the petitioner from
seeking enhancement of the maintenance allowance. According
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
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
the trial Court in four equal installments. He shall deposit the
first installment on or before 31st March, 2017, the second on or
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)
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