- (1.) THIS appeal arises an interesting question under Hindu Law and also the provisions of the Bombay Hindu Divorce Act and the Hindu Marriage Act, 1955. Appellant No. 1 Audumbar who would hereafter be called the husband, was married to Sonubai, the respondent who would hereafter be called the wife, in the month of March 1946. The husband filed a suit against the wife being Suit No. 664 of 1952, asking for divorce on the ground that the wife was living in adultery with one Baba Mahadu who was also added as a co-respondent in that suit. On that ground and also on the ground of desertion the husband asked for dissolution of the marriage under the provisions of the Bombay Hindu Divorce Act 1947. The wife resisted the suit and denied the allegations made by the husband on both the points viz. adultary and desertion. On 11th March 1954 there was a compromise between the husband and the wife under which it was settled that these spouses should pass divorce deeds according to the custom of the caste, that the husband should withdraw the allegations unconditionally made against the wife in the plaint and that the husband should give maintenance to the wife till her re-marriage or till her death. The parties however could not agree on the quantum of maintenance and therefore they submitted this dispute to arbitrator Dattatray Shivram Patil for decision. On the 12th March 1954 Datatraya Shivram Patil gave his award by which he allowed the maintenance at the rate of Rs. 30 p. m. The award further provided that the wife was entitled to receive this amount from the husband till she re-married or till her death and that she would be entitled to that amount irrespective of the consideration as to whether she remained chaste or unchaste. The husband then withdrew the suit the same day i. e. 12th March 1954. The wife filed a suit being Suit No. 268 of 1954 for obtaining a decree in terms of the award. The husband put in his written statement and contended that the clause relating to the provision of maintenance to the wife irrespective of the consideration whether she was leading a chaste or unchaste life, is opposed to public policy and therefore that clause should not be embodied in the decree. On 14th February 1955 the Court passed an order for drawing up a decree in terms of the award except the clause relating to the right of the wife to receive maintenance irrespective of as to whether she was leading a chaste or an unchaste life. The same day a decree was drawn up in terms of the award so far as the quantum of maintenance is concerned and so far as the provision that the wife would be entitled to receive the amount of maintenance till her remarriage or till her death, was concerned. The wife started execution proceeding under Darkhast No. 272 of 1955 for the recovery of the amount in terms of the award decree. The husband appeared and stated that the wife was living in adultery with one Ramchandra Shingte. He therefore contended that she was not entitled to execute the award decree because of her aforesaid act of unchasting. The executing Court referred the husband to file a separate suit. It may be mentioned that in the award decree the charge for the maintenance was kept on the family property. The joint family of the husband comprised of himself and his father. On 9th April 1955 the husband and his father together filed a suit being Suit No. 255 of 1955 which has given rise to the present second appeal, for a declaration that the award decree has become unexecutable by reason of her subsequent act of unchastity and for an injunction restraining her from executing the decree. The trial court held that the wife was living in adultery with Ramchandra Shingte. Consequently the trial Court decreed the suit. The wife preferred an appeal and the learned Assistant Judge to whom the appeal was transferred held that the decree for maintenance was based on a contract and not on principles of Hindu Law and therefore concluded that the fact that the wife was living in adultery after the passing of the decree will not invalidate the decree. Consequently he allowed the appeal and dismissed the suit. It is against that decision that husband Audumbar and his father Gangaram have come up in appeal.
(2.) MR. S. B. Sukhthankar for the husband contended that the real basis for the decree that was passed in Suit No. 268 of 1954 was the provisions of Section 8 of the Bombay Hindu Divorce Act and not the so-called contract. He argued that no contract could possibly entitle the wife to claim maintenance from her husband and for that purpose we will have to fall back upon the provisions of either General Hindu Law or the provisions of the Bombay Divorce Act or the Provisions of the Hindu Marriage and Divorce Act (sic ).
(3.) BEFORE proceeding to discuss the points of law arising in this case, it is necessary to refer to the agreement which is styled as divorce deed passed by the husband in favour of his wife (Exhibit 31) and the reference to arbitration which also bears the same date. Exhibit 31 is styled as a deed of divorcee. In that document the husband states as follows: "i am withdrawing all the allegations made by me against you in Suit No. 664 of 1952 unconditionally. Even so it is not possible that hereafter you and I can pull on together well as considerable misunderstanding has arisen between us two. Being convinced of the fact that we will not be able to lead happy married life hereafter, we have mutually decided that we shall obtain divorce according to the custom of the caste. Some intermediaries also suggested to us to take the same course and we accept their suggestion. In accordance with that therefore I am giving you divorce according to the custom of the caste. Hereafter you have ceased to be my wife and I have no claim upon you. Both of us are free to enter into second marriage. The intermediaries have told me and my father that we shall arrange for your maintenance till you remarry or till your death. We have agreed to the term of providing you maintenance till your remarriage irrespective of whether I set up a plea that you have been living in adultery and succeed in establishing that plea. Since we could not agree upon the quantum of the maintenance, we have decided to refer the dispute to Dattatray Shivram Patil of Sholapur". Exhibit 18 is the reference which is styled as Rajinama. The principal terms of that document may be set out as follows: "we have passed divorce deeds in favour of one another in accordance with the custom of the caste. We could not agree about the quantum of maintenance. We have however, no dispute as to the circumstances when payment of maintenance should be stopped and the period during which it is to be continued". It is at once clear that the reference does not state that the husband will be liable to pay maintenance to the wife in spit of the fact that the latter was leading an unchaste life. All that this reference stated was that the husband and wife have agreed upon two things: (1) The period during which the husband's liability to provide for the maintenance is to continue and (2) the circumstances under which the liability is to come to an end. This obviously has reference to the well known conditions governing the period of maintenance as also the stoppage of maintenance. In spite of this the arbitrator gave award saying that the liability of the husband will continue in spite of the fact that the wife was leading an unchaste life. The award was attacked on two grounds. Firstly, the arbitrator had no authority to give any decision on this point and secondly the term in the contract was opposed to public policy. Both these contentions were upheld by the Court which passed the decree and the Court directed that the decree should be drawn up in terms of the award after omitting the offending clause.;