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1931 Supreme(SC) 62
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD RUSSELL OF KILLOWEN, SIR GEORGE LOWNDES, AND SIR DINSHAH MULLA.
B . ISWARAYYA - Appellant
Versus
SWARNAM ISWARAYYA - Respondents
On Appeal from the High Court at Madras.
Decided On : June 26. 1931.
Solicitor for appellant: H. S. L. Polak.
Solicitors for respondent: Walker, Martineau & Co.
Under Section 37 of the Indian Divorce Act, 1869, courts possess the continuing power to increase permanent alimony if circumstances justify it. Additionally, appellate courts may vary decrees in favor of non-appealing respondents under Order XLI, Rule 33 of the Code of Civil Procedure to ensure complete justice.
Headnote:(A) Indian Divorce Act, 1869 - Sections 7 and 37 - Code of Civil Procedure, 1908 - Order XLI, Rule 33 - Power to increase permanent alimony - Interpretation of "an order" - Appellate Court's power to vary decree in favor of respondent.
(B) Construction of Section 37 - The power to order monthly or weekly sums for maintenance and support is based on what the Court thinks reasonable - Such power is not exhausted by a single order - The absence of the phrase "from time to time" or the presence of a proviso for the husband does not preclude the Court's power to increase alimony for the wife.
(C) Appellate Court's power under Order XLI, Rule 33 of the Code of Civil Procedure - Power to pass any decree or order which ought to have been passed - Can be exercised in favor of a respondent who has not filed an appeal or objection to ensure complete justice.
Facts of the case:
A wife obtained a decree for judicial separation and an order for permanent alimony. Subsequently, due to the improved financial circumstances of the husband, an application was made for an increase in the alimony amount. The lower court increased the amount. On appeal, the appellate court disallowed maintenance for the children (who had attained majority) but increased the wife's alimony, exercising powers to vary the decree even though the wife had not appealed.
Findings of Court:
The court held that the power to grant permanent alimony under the relevant Act is not spent after the first order is made and can be exercised again to increase the amount if circumstances justify it. Furthermore, the appellate court is justified in increasing the alimony for the respondent to do complete justice when other parts of the decree are disallowed.
Issues: Whether the court has the power under Section 37 of the Indian Divorce Act, 1869, to increase the amount of permanent alimony after an initial order has been made, and whether an appellate court can vary such an order in favor of a respondent who did not appeal under Order XLI, Rule 33 of the Code of Civil Procedure.
Ratio Decidendi: The phrase "the Court may make an order" does not limit the court to a single order; since the amount depends on what is "reasonable," and circumstances change, the power remains available. The legislative intent, guided by the principles of the courts in the jurisdiction referenced in Section 7, supports the power to vary alimony. Under the Code of Civil Procedure, the appellate court has wide discretion to pass orders necessary for justice, regardless of whether the party in whose favor the order is made has appealed.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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matrimonial causes
- judicial separation
- permanent alimony
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matrimonial causes
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practice and procedure
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civil procedure
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appeals
- appellate court powers
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appeals
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civil procedure
Judgement
Appeal (No. 39 of 1930) from an order of the High Court (February 15, 1928) varying an order of the District Judge of East Tanjore at Negapatam (March 8, 1927).
The main question arising upon the appeal was whether under s. 37 of the Indian Divorce Act, 1869, the Court, having already made an order that a husband, whose wife has obtained a decree for judicial separation, shall pay to her a monthly or weekly sum as permanent alimony, can make an order increasing the amount of the payments.
The High Court (Phillips and Reilly JJ.) affirmed the view of the District Judge that the Court had power to increase the alimony previously ordered to be paid ; the order of the District Judge was varied however in the manner, and for the reasons appearing from the judgment of the Judicial Committee.
1931. May 20, 21. Subha Row for the appellant. An order for permanent alimony having already been made the Court had no power to make an order increasing the amount to be paid. Sect. 37 empowered the Court to make only " an order," not, as earlier in the section, to " order." Nor does the section
B. Iswarayya V. Swarnam Iswarayya 159
contain the words " from time to time" used as to orders under ss. 41 and 42. Further, while s. 37 contains an express provision whereby a husband can obtain an order suspending or modifying the order made, there is no provision as to increasing the amount ordered to be paid. As
s. 37 deals expressly with the making of orders for permanent alimony, the principles and rules followed in England cannot be applied under s. 7 so as to add a power not given by s. 37. In any case the High Court should not have increased the amount of the alimony in the absence of an appeal by the respondent. The power of an Appellate Court under Order xli., r. 33, should be exercised sparingly Akimannessa v. Bepin Behari (( 1914) 22 Cal. L. J. 397.) and cases there cited referred to.
T. Bucknill for the respondent. Under s. 37 of the Indian Divorce Act, 1869, the Court has power at any time after a decree for judicial separation to make such order for permanent alimony as is just in the circumstances at the date of the wifes application. There is nothing in the section making the Court functus officio once it has made an order. The words " from time to time " appear in ss. 41 and 42 because the sections were taken from s. 35 of the English Matrimonial Causes Act, 1857. If there is any ambiguity as to the power under s. 37 the respondent prays in aid the principles and rules of the Courts in England, which by s. 7 are to be applied. The Ecclesiastical Courts in England, to whose jurisdiction the Divorce Court succeeded, always exercised power to increase the alimony ordered to be paid to a wife who had obtained a decree for separation a mensa et thoro De Blaquiere v. De Blaquiere . ((1830) 3 Hagg. Ecc. R. 322, 329.) That power was exercised by the Court after the Matrimonial Causes Act, 1857, in the case of a wife who had obtained a decree for judicial separation Covell v. Covell (( 1872) L. R. 2 P. & D. 411.), and it is now statutory under the Matrimonial Causes Rules, 1924, r. 63, and the Judicature (Consolidation) Act, 1925, s. 190, sub-s. 4. An order for maintenance upon a decree for dissolution of a marriage is to be distinguished. In that case there was no power to increase the amount until it was provided by statute in 1907 Rawlins v. Rawlins . (( 1865) 4 Sw. & T. 158.) The Appellate Court having disallowed the sums ordered to be paid for the maintenance of the children, the case was a proper one for an exercise of its power under s. 151 and Order xli., r. 33, of the Civil Procedure Code, 1908, by increasing the sum to be paid to the wife for her maintenance although she had not appealed.
Subba Row in reply. Sect. 7 of the Act does not apply to procedure Ramsay v. Boyle . (( 1903) I. L.
R. 30 C. 489.)
June 26. The judgment of their Lordships was delivered by
LORD RUSSELL OF KILLOWEN. The principal question which is rais
