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Calcutta High Court
MONOJ KUMAR MUKHERJEE, J.
Sm. Sandhya Chatterjee - Appellant
Versus
Salil Chandra Chatterjee - Respondents
Second Appeal No. 679 of 1977
Decided On : 15 April 1980
HINDU LAW - AGREEMENT FOR PRESENT SEPARATION - VALIDITY - PUBLIC POLICY - ENFORCEABILITY.
Fact of the Case:
Parties to the appeal, a husband and wife, entered into an agreement for present separation, whereby the husband agreed to pay maintenance to the wife and the wife agreed to withdraw a suit for judicial separation. The agreement was challenged by the husband on the ground that it was opposed to public policy.
Finding of the Court:
The court held that the agreement was not opposed to public policy and was enforceable. The court reasoned that the estrangement between the parties was final and that it was just and desirable for them to live separately. The court also held that the payment of allowance to the daughter for her maintenance and educational expenses was unconditional and no claim was raised in the suit for marriage expenses of the daughter.
Issues: 1. Whether the agreement for present separation was opposed to public policy. 2. Whether the payment of allowance to the daughter was conditional.
Ratio Decidendi: 1. The concept of Hindu marriage and the obligations of the wife arising therefrom have undergone radical changes with the passage of time and progress of the society. 2. The provisions for judicial separation and divorce in the Hindu Marriage Act made the concept of Hindu marriage being a union which is indissoluble, a part of history. 3. Section 18(2) of the Hindu Adoptions and Maintenance Act recognised wider grounds which could justify a Hindu wife's claim for separate residence and maintenance. 4. In view of the above, it cannot be said that the wife's claim for separate maintenance while living separately under justifiable circumstance is against public policy in the present day society.
Final Decision: The appeal was allowed, the judgments and decrees of the learned Courts below were set aside, and the suit was decreed. It was declared that the agreement executed by the defendant/respondent on 12-5-73 was binding. The plaintiff was entitled to recover a sum of Rs. 425/- from the defendant for arrear dues towards maintenance together with interest thereon @ 6% per annum from the date of the suit to the date of recovery.
JUDGEMENT :- This second appeal is by the wife in a suit instituted by her against he husband for enforcement of an agreement entered into by them on May 12, 1973.
2. Various disputes and differences arose between them at an earlier stage which prompted the wife to file a suit for judicial separation. During the pendency of the said suit the husband wrote a letter to the wife as under :-
"Sm. Sandhya Chatterjee, 12-5-1973. 194/C, Rash Behari Avenue,
Calcutta-29.
I agree to pay you Rs. 260/- (Rupees two hundred and sixty only) for your maintenance and the maintenance and educational expenses of my son and shall pay Rs. 90/- (Rupees ninety only) to my daughter for her maintenance and educational expenses. I also agree to pay 55% of the bonus which I shall get annually from my company. I shall bear the marriage expenses of my daughter Shyamalima according to my means on receipt of the information of the marriage provided the groom is approved by me.
The amount of maintenance will increase or decrease in proportion to rise and fall of salary and allowance.
This will take effect from the month of April 1973 and first payment will be made by the 30th of the month of May 1973 and subsequent payments shall be made by the first week of the following month.
Besides the above I shall pay you Rs. 500/- (Rupees five hundred only) within December 1973 and Rs. 250/-(Rupees two hundred and fifty) by Match, 1974 out of love and affection to my children.
Yours faithfully,
Salil Chandra Chatterjee
12th May, 1973."
3. The wife in her turn replied to the said letter as follows :-
"To 12-5-1973.
Sri Salil Chandra Chatterjee,
18/2B, Kundu Lane,
Calcutta-25.
This is to place on record that in consideration of your offer for payment of the sums contained in your letter dated 12-5-1973 addressed in my name to me I hereby withdraw all allegations and charges made in the plain against you in Matrimonial Suit No. 49 of 1972 in 5th Additional District Judge at Alipore and I am filling today a petition for dismissal of the suit for non-prosecution.
I also agree that you will have free access to my residence at 194/C, Rash Behari Avenue, Calcutta-29 as well as to our son who may be taken to your residence at 18/2B, Kundu Lane, Calcutta-25 once a week and your guidance in the future education of Saibal will be accepted by me. The son shall not be taken except from my residence under normal circumstances.
Yours faithfully,
Sandhya Chatterjee."
4. After exchange of those letters, the wife, on the self same day, filed a petition praying for dismissal of the suit to which no objection was raised by the respondent. The suit was accordingly dismissed for non-prosecution without costs.
5. According to the appellant, some payments were made in terms of the agreement, reached through the above correspondence, but ultimately the respondent stopped making payment which compelled her to serve legal notice upon him. Since the terms of the said notice were not complied with, she instituted the suit, out of which the present appeal arises, praying, inter alia, for a declaration that the agreement executed by the respondent on May 12, 1973 was binding upon him, for recovery of a sum of Rs. 425/- being the arrears due under the agreement and for a direction upon him to state the amount of Bonus received by him from his office in 1973, in default for appointment of a commissions for ascertaining the amount payable to his on account of bonus.
6. The suit was resisted by the defendant, firstly on the ground that the purported agreement was opposed to public policy and as such void. The other ground on which the suit was resisted was that the letter written by him on May 12, 1973 was a mere offer to do certain things if the plaintiff carried out her obligations contained in the said letter. As the plaintiff did not comply with her obligations thereunder he was under no obligation to perform his part. Both the courts below decided against the plaintiff solely on a finding that the agreeme
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