MRS. A RUNA BASU MULLICK

MRS. DOROTHEA MITRA

August 2, 1983

[P. N. BHAGWATi, AMARENDI.lA NATH , SEN AND

RANGANATH MISI.lA, JJ.)

Alimony-Permanent alimony, a decree for-Whether a decree for perma~· nent alin1ony passed under Sectiou 37 of the Special Marr; age Act, 1954, is wiped out with the death of the husaand, judg11u1ntdebtor. ·

Words and Phrases-'' In the circumstances of either party" and "at the instance of either party" occurring in clause (2) of Section 37 of theSpecial

Marriage Act, 1954, rneaning of.:..Whether referable 011/y to the spouses.

Repondcnt Dorothea and one Prafulla Kumar Mitra were married under the Special Marriage Act, 1872; in January 1952. Respondent asked for a

divon.~.e in 1961 and obtained a decree on t\-lay 2, 1962 and as per tlie decree she was to be paid Rs. 300.01 per month as alimony until she remarries.

Respondent levied execUtion of the decree and the same was cornPromised and payment of arrears was undertaken to be made in instalments. On March 31, 1965 Mitra executed a will but made no provision therein fOr the satisfaction of tl; e maintenance decr".e. He died on April 3, 1965 and the appeilant who was the executrix under the will got it duty probated. Since no payment was n1ade by the executrix after December 1975, respondent filed execution in

Matrimonial Case 1 of 1977 cJain1ing recovery. of Rs. 19,500.00. Appellant objected to the claim under Section 47 of the Code of Civil Procedure by pleading that the order of alimony not being charged the claim under decree for alimony abated with the death of M.itra. The executing court overruled the objection and the :Oivision Bench of the Calcutta High Court, while dismissing the revisioll' petition, however, granted certificate of appeal to .this Court.

Dismissing the appeal, the Court

HELD : 1:1. The languae of Section 37 does not warrant the conClu- .sion that there is extinguishment of the decree for alimony upon the death of the judgment debtor husband. [519 Gj

1 :2. The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence. There is no ambiguity in Section 37 for the interpretation of which it is necessary to go beyond the provision itself. It is one of the settled principles of interpretation that the Court should 'lean in f!;\VOUf <?f sustainin~ a decree and should not permit the benefits under a decree

/\RUN BASU V. DOROTHEA 51?

to be lost unlesS there be Act, any st>ecial reason for it. In incorporating a provision like Section 37 in the Act, Parliament intended to prote'c(the wife at the time of divorce by providing for payment of maintenance. If the husband has left behind an estateat the time of his death there call be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the decree. [523 A-q

1:3. There is no doubt that matrii; nonial Proceedings abate on the death of either spouse and legal representatives cannot be bi-ought on record and the

proceeding& cannot be continued any further and where maintenance has been made a charge on the husband's estate, the death of the husband would not at all effect the decree and notwithstanding such death, the estate can be proceeded against for realisation of the maintenance dues for post-death period.

But, there is no rationality in the contention 'that where the matrimonial proceedings have terminated during the lifetime of the husband and a decree has emerged such a decree for maintence or alimony gets extinguished with the death of the husband when any otler decree even though not charged on the husband's property wouJd not get so extinguished. A decree against the husband is executable against the estate. of the husband in the hands of the heirs and there is no persona] Iiabi1ity. , In law a maintenance decree would not make any difference. The decree indicates !hat maintenance was payable during the 1ife time of the widow. To make such a decree contingent upon the Jife of the husband is contrary to the terms and the spirit of the decree.

Thetefore, the assets left behind by Mitra are Hable to be proceeded agajrist in the hands of his legal heirs for satisfaction of tf.e decree for maintenance.

(522 CH]

2. The phrase •'at the instance of either party•' occurring in sub-section

(2) of Section 37 Of the Act are not confined to the spouses only. Sub.section 3 clear]y provides that on remarriage or on a finding that the wife is not leading a chaste life, the order of maintenance can be rescinded. Upon the husband's death his estateepasses on to his legal heirs and intention of the Legislature being clear that Upon remarriage or non-leading of a chaste life, the benefit conferred by the statute should expire and the estate should become free from the liability of satisfyingthe decree for maintenance, the application for varying, modifying or rescinding the order for maintenance can be made even by those who have succeeded to the husband's estate and the estate can be freed from the liability; Exa_mining 'the scheme of . the statute and the purpose for which such a provision has been made, it is clear; that the words 'either party' would also cover the JegaJ heirs. who have stepped into the shoes of the spouses under the law and such persons would also be competent to ask for variation, modification or rescission of the order for maintCnance. That term would also include the holders of the estate with lawful titlo for the time being. [523 E-H, 524 AB] .

CIVIL APPELLATE JURISDICITION 1980.

Civil Appeal No. 1997 of

From the Judgment and Order the 25th April, 1980 of the Calcutta High Court in C.R. No. 1529.of 1979.

$hanker Ghose, Sobhan Tagore and P:K. Mukherjee for the Appellant.

L.N. Sinha, Attorney General, C. V. Subba Rao and R.S. Poddar for the Respondent.

R.B. Mehrotra for the Substitu1:ed Respondent.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. This appeal by certificate from th• Calcutta High Court raises the question whether ai decree for perma nent alimony passed under section 37 of the Special Marrige Act, 1954 (hereinafter referred to as 'tbe Act'), is wiped out with the death of the husband-judgment-debtor.

Respondent Dorothea and one Prafulla Kumar Mitra were married under the Special Marriage Act, 1877, in January 1952.

Respondent asked for divorce in 1961 and obtained a decree on May 2, 1962, to the effect : "The petitioner's (Dorothea Mitra's) marriage with the respondent Prafulla lCumar Mitra b1 dissolved. by a decree of divorce. The petitioner do get Rs. 300 p.m. as maintenance from the respondent to be paid by the !st week of each month following for which it is due until she re-marries ... ".

Respondent levied execution of the decree and the. same was compromised and payment of the arrears was undertaken to be made in instalments. Prafulla Kumar Mitra executed a Will on March 31, 1965, but made no provision therein for satisfaction of the maintence decree. He died on Aprjl 3, 1965, and the appellant who was the executrix under the Will got it duly probated.

There is no disp)lte that the executrix paid the maintenance in December 1975 for a period after the death of Prafulla Kumar Mitra.

But since no payment was made thereafter, respondent levied execution ili Matrimonial Case No. 1/77 claiming recovery of arrears of Rs. 19,500. Appellant objected to the claim under s. 47 of the Code of Civil Procedure by pleading that the order of alimony not being charged, the death of Parfulla Kumar Mitra has extinguished the claim of the purported decree holder. The executing court overruled the objectiol) whereupon the appellant invoked the revisional jurisduction of the High Court. A Division Bench agreed with the executing Court but while dismissing the revisiol\ application, $ranted certificate of appeal to this Court.

., ......

,_,.

ARUN BASU v. DOROTHEA (lfonganath Misra, J.) 519

The sole controversy is whether the order for alimony got extinguished with the death of Prafulla Kumar Mitra.

Admittedly, A the order was made in exercise of powers under s. 37 of the Act.

It provides :

"37. Permanent alimony and maintence-(1) Any Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any d.ecree or at any time subsequent to the decree, on application ma_de to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband's property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as having regard to her own property, if any her husband's property and ability and the conduct of the parties, it may seem to the Court to be just;

(2) If the District Court is satisfied that there is a change in the circumstances of either party at any time . after it has made .aJI order under sub-section (!), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the Court to be just; •

(3) If the District Court is satisfied that the wife in whose favour an order has been made under this section has remarried or is not leading a chaste life, it shall rescind the order."

The language of the section does not warrant the conclusion that there is extinguishment of the decree for alimony upon the death of the judgment-debtor husband. We have been told at the Bar that there is no decision on the point and, therefore, English decisions should be considered for dciding the matter.

Section 37 of the Act more or less corresponds to the provisions of ss. 19, 20 and 22 of the English Matrimonial Causes Act, 1950, except that there is nn corresponding provision in the English Act for sub-s. (3) of the Indian Act.

A close look at sub-ss.

(2) and (3) of s. 19 of the English Act will indicate that maintenance can be reqinred to be paid for a term not exceeding the life of the

SUPREME COURT REPORTS [1983) 3 s.c.lt.

wife or during the jojnt lives of the husband and the wife. These

tw<i sub-sections of the English Act read thus:

"(2). On any petition for divorce or nullity of marriage the Court may, if it thinks fit, order that the husband shall, to the satisfaction of the Court, •ecure to the wife such gross sum .of money or annual sum for any term not exceeding her life, as having rei:ard to her fortune, if any, to the ability of.the husband and to the conduct of the parties, the court may deem to be reasonable.

(3). On any decree for divorce or nullity of marriage, the court may, if it thinks fit, by order direct the husband to pay to the wife, during their joint lives, such monthly or weekly sum for maintenance and support of the wife as the court may think reasonable, and any such order may either be in addition to or be instead of an order

made under the last foregoing sub-section."

We have also been referred to some other English statutes where this distinction has been manintained. In case of a direction for payment during the joint lives, there can be no dispute that on the death of one or the spouses the obligation under the decree ceases. English Courts have taken the view that even where a direction is for payment during the life of the wife, it abates with the death of the husband. In paragraph 891, Vol. 13, Halsbsury' Laws of England, 4th Edn., it has been said that "in the absence of an order directing security for periodical payments the court has ,!lO jurisdiction to order a man's personal representatives to make payments for his children after his death." The decision in Sugden

v. Sugden,(') of the Court of Appeal has been relied upon for thi• view. Lord Denning in the leading judgment said :

, "There is no difficulty in an ordinary action in determining when the right or liability accrued due; but there is more difficulty in proceedings in the Divorce Court. In that court there is no right to maintenance, 'or to a secured provision, or the life, until the court makes an order directing it. . There is therefore no cause of action for such matters until an or<; ler is made. In

(I)

(1957) I All. E.R. eOQ.

.J,.

ARiJN BASU v. DOROTiraA (kanganath Misra, J.) 521

order that the cause of action should subsist at the death, . . the right under the order must itself have accrued at the A time of death.

Thus a cause of action subsists against a husband for.arrears of maintenance due at his death, but not for lter payments."

This view of proceedings in the Divorce Court is supported by the decision of Hodson, J. in Dipp/e v. Dipple,(1) where he pointed out

tht "all that the wife had was the hope that the court would in its discretion order a secured provision .. . .. . In the present case, there wasno right or liability subsisting against the father at the time of his death. He had paid everything up .to that time. If there had .been any arrears of maintence payable by him at that time, then no doubt they would be payable by his estate after his death under s. I (I) of the Act of 1934; but there were no arrears. There was notthing, therefore, to come within the Act of 1934 at all.

The right to maintenance afte~ his death must come from the terms of the order itself or not at all." Under the order in Sugden's case the maintenanceof ls. a year for the wife was payable by the husband during their joint livesc On the terms of the order, therefore, the liability was to come to an end upon the death of the husband.

We have no difficulty in .accepting the submission of Mr. Ghosh for the appellant that matrimonial proceedings abate on the death of either party and legal representatives cannot be brought on record and the proceedings cannot be continued any further. Bowen, L.J. in Stanhope v. Stanhope,(1) very appropriately said :

"A man can no more be divorced after his death, than he can after his death be married or sentenced to death.

Marriage is a union of husband and wife for their joint lives, unless it be dissolved sooner, and the court cannot dissolve a union which has already been determined. No person can dissolve a marriage which is dissolved by act of God. If a decree nisi is made, and the husband dies before it is made absolute, he dies while he is still at law a husband, and his wife becomes his widow.

Thus how can a decree be made which would displace a dissolution of the marriage by death, and untie a knot thatno longer exsist? How can a woman, once a widow,

(1) [19421 1 All E.R. 234.

(2) [1886) 11 P.D: 103.

be convertd into a divorcee, unless there is some enactment enabling the court such a retrospctive order"

The question to ask at this stage is, while a niatrimonial proceeding comes to an end with the death of either spouse, where the proceeding has terminated and a decree has emerged, would the decree also abate.

, There can be no manner of doubt and it has also been fairly conceded before us that where maintenance has been made a charge on the husband's estate, the death of the husband would not at all affect the decree and notwithstanding such death, the estate can be proceeded against for realisation of the maintenance dues for postiieath period.

Mr. Ghosh had to concede that if there be a decree arising out of a civil action death would not result in wiping out the decree.

If decree arising not out of a matrimonial dispute would not abate and the estate of the judgment-debtor would be liable for its satisfaction and a decree for alimony or maintenance would not abate when the same is charged upon the husband's estate, we asked Mr. Ghosh to indicate the justification for his contention that a decree for maintenance or alimony not charged upon the husband's , estate would abate with the death of the hshand. Apart from relying on the English decisions, Mr. Ghosh was not able to indicate any independent reason.

We have not been able to find any legal principle in the cases placed before us except that the view taken in the English Courts appears to be based on precedents. There is no rationality in the contention that a decree for maintenance or alimony gets extinguished with the death' of the husband when any other decree even though not charged on the husband's property would not get so extinguished. A decree against the husband is . executable against the estate of the husband iii the hands of the heirs and there is no personal liability. In law a maintenance decree would not make any difference.

The decree indicates that main tenance was payable during the life time of the widow. To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit or' the decree and the appellant has taken a

stand that though the widow is alive, the decree obtained by her would become ineffective with the passing away of the husband.

:1 ...

AittiN BASU v. DOROTHEA (Ranganalh Misra, J.)

S23

The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence. For the interpreation of a provision of this statute there is no warrant to be guided by English decisions. There is no ambiguity in s. 37 for the interpretation of which it .is necessary to go beyond the provision itself. It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefits under a decree to be lost unless there be any special reason for it.

In incorporating a provision like s'. 37 in the Act, Parliament intended to protect the wife at the time of divorce by providing for pay ment of maintenance. If the husband has left behind an etate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the decree.

We are inclined to agree with the view of the Calcutta High Court that the decree in the instant case was not extinguished with the death of Prafu!la Kumar Mitra . and the assets left behind by him are liable to be proceeded against in the hands of his legal heirs for satisfaction of the decree for maintenance.

Before the Calcutta High Court it had been contended that the phrase 'at the instance of either party' occurring in sub-s. (2) of s. 37 would cover the husband and tl)e wife and no one else and on this meaning given to the phrase, support was sought for the contention that the order of maintenance was intended to .continue only during the life of the husband. This question was left open by the High Com!. We, however, see no justification for the view that the phrase should be confined to the spouses. There is no dispute that the order for maintenance can be varied or rescinded with change of circumstances. Sub-section (3) clearly provides that on remarriage or on a finding that the wife is not leading a chast~ life, the order of maintenance can be rescinded. Upon the husband's death his estate passes on to his legal heirs and the intention of the Legislature being clear that upon remarriage or non-leading of a chaste life, the benefit conferred by the statute should expire and the estate should become free from the liability of. satisfying the decree for maintenance, the application for varying, modifying or rescinding the order for maintenance can be made even by those who have succeeded to the husband's estate and the estate can be freed from the liability. There is nothing in the provision to support the view that the words 'either party' should be confined to the

. .

spouses. Examining the scheme of the statute and the purpose for which suc\1 a provision has been made, we are inclined to agree with the learned counsel for the respondent that the words 'either party' would also cover the legal heirs who have stepped into the shoes of the spouses under the law and such persons would also be competent to ask for variation, modification or rescission of the order for maintenance. That term would also include the holders of the estate with lawful title for the time being. Once such a meaning is given to the phrase, the support which Mr. Ghosh wanted to draw by restricting the phrase to spouses and contending that it indicated the legislative intention that the order of maintenance should survive only until the life time of the husband, loses force.

We accordingly dismiss the appeal and confirm the order. of Calcutta High Court. The responoent shall be entitled to her costs throughout. ·

S.R • Appeal dismissed.