Mrs. Myra Joseph Braz Dias Vs. Joseph Braz Dias

Appeal No. 867 In Notice Motion No. 1753 1990 In M. J Petition No. 626 1990 of 1991

11th October, 1991

Petitioner Counsel: Mrs. Ansuya Dutt,
Respondent Counsel: V. Y. Sanglikar, .

Divorce Act (1869),S. 36 Divorce Act (1869),S. 36 Proviso


K. SUKUMARAN, J. :-By his Order dated 19th April 1991 passed in Notice of Motion No. 1753 of 1990 M. J. Petition No. 626 of 1990, Variava, J. directed the husband to pay the wife Rs. 1,000/- per month as maintenance and Rs. 10,000/- towards the costs, and issued a direction that the arrears upto March 1991 together with the sum of Rs. 10,000/- shall be paid within eight weeks from the date of the order. The husband and the wife have come up in appeal, the former by Appeal No. 867 of 1991 and the latter in appeal yet to be numbered.

2. The learned Judge found the income of the husband to be in the region of Rs. 3,500/- per month. In reaching that tenative figure, the learned Judge had reckoned; (a) the possible balance in the hands of the husband out of a sum of Rs. two lakhs received by him as retiral benefit, in 1981, (b) the sale proceeds of the building at Dadar, a sum of Rs. 1,75,000/-, (c) rent of the building at Bandhra, (d) the income from the Bangalore premises of J. B. Enterprises (the wife has a case that the 'J.B.' stands for a first letters of the name of the husband 'Joseph Braz'). The husband has a case that he had rented out that building, the lease deed having been signed by Barbara Knight. (There are materials to indicate that she was to serve him as a 'servant' on a salary of Rs. 300/- per month).

3. The learned Judge computed the rate of interest that could be earned on investment, at the rate of 9% per annum. This is a serious ground of attack in the appeal of the wife. There is considerable force in that argument. The latest notification of the Reserve Bank has enhanced the Bank rate as 12%. The actual levy of interest when amounts are lent, go as high as 21%, if not more, even in the case of nationalised Banks. An upward revision in the rate of interest is definitely justified in the above circumstances. Having regard to the prevarication, prima facie disclosed on the part of the husband, there is justification for an increase in the income under other heads as well. He had not been candid to the Court in relation to the sale of the Dadar property. The Bangalore property and the business carried on there, according to the wife, is still under a smoke screen in relation to the actualities of business and realisable income. When basic fact of ownership is admitted, it was for the husband, who was in the full know of the details, to assist the Court with relevant details. He has chosen to suppress such materials. An adverse inference would be

prima facie justified.

4. The factors indicated above would prima facie warrant an upward revision in the amount of maintenance. The proviso to S. 36 of the Indian Divorce Act, prima facie, has a depressing effect. We are aware of the decision of the Bombay High Court indicative of liberal interpretation of that Section. (See AIR 1979 Bom 173 Dinesh Gijubhai Mehta v. Usha Dinesh Mehta). We do not propose to deal with the larger legal issue in the present case. The fact the wife is now provided with a residential accommodation at Dadar, is also a relevant fact to be noticed in this connection. Having regard to the totality of the circumstances, we feel that the order in relation to the pendente lite arrangement, expressive as it is of a discretion exercised by the learned Judge, warrants no interference at the appellate stage. In that view of the matter, we dismiss both the appeals.

Counsel for the wife points out that the husband was in contempt not having complied with the directions of the learned Judge. It is open to the wife to peruse further proceedings against the husband, if and when she deems fit and necessary to institute such proceedings. It is sufficient at this juncture to express our disapproval of the conduct of the husband. That shall be reflected in the award of the costs, including a sum of Rs. 1,000/- which we fix as counsel's fee in both the appeals, which the wife is entitled to get from the husband.

Before we part with the case, we may refer back to the observations of the Division Bench of this Court in Dinesh Gijubhai Mehta v. Usha Dinesh Mehta, on the proviso to S. 36 of the Indian Divorce Act, 1869. The learned Judges observed :

"We are unable to trace any rational basis for this rule which prevents the wife from claiming more than 1/5th, even when her needs, and capacity of the husband, warrant awarding larger amount. This amounts almost to be a rule of the thumb. Such a provision in the Act of 1869, may have been based on the then notions and concepts, as to a woman's status and position in the society and her claims against the husband. The provisions of the Hindu Marriage Act enacted in 1955 are, on the other hand, based on the recognition of the wife as equal partner of her husband in life. This is just in keeping with the guarantee of equality to every citizen afforded by the Constitution. It does not depend on whether the wife chooses to devote her talents to household work or to sphere outside. This Act does not permit denying her right to share the husband's earnings, like his fortunes or misfortunes, on the footing of equality. ......"

5. More than hundred years have fleeted by after the coming into force of the above enactment. The Indian social scene has witnessed passage of very many enactments seeking to uplift the status and augment the assets of the woman, who still suffers from manifold handicaps. Quite often, she carries with her sorrow's crown of sorrow. Open cruelties have been substituted by subtle and sophisticated ones. The centenary year of a revolutionary social enactment. The age of Consent Act, 1891, may stimulate many thoughts to legal minds, social scientists and to public workers, the harbingers of change. It is to the credit of the State of Maharashtra that a note of Behiramji Malabari kindled the flame which led to the dazzling light. (See the illuminating article "Girl Brides and Social Legal Change" by Meera Kosambi 1991 Economic and Political Weekly, page 1857). Even in relation to those governed by the Indian Divorce Act, similar thoughts surfaced when the Apex Court delivered a historic judgment in Mary Roy's case. (See Mary Roy v. State of Kerala, AIR 1986 SC 1011). It may perhaps merit the attention of the supreme law makers of this country to ponder about the removal of all traces of obsolescene in this and other related laws dealing with women. A suggestion in that behalf was made in the course of judicial discussion about a cognate enactment by Thomas, J. of the Kerala High Court. We desire that the attention of the Law Commission and of the Parliament is drawn to this aspect.

6. A copy of our judgment will be forwarded to the Secretary, Law Commission,

New Delhi and to the Secretary to Government, Ministry of Law and Justice, New Delhi.

Appeal Dismissed