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 raised for