Report No. 59

8.28. Recommendation to add "circumstances" in section 25(1).-

We also recommend that the word "circumstances" should be added in sub-section (1) of section 25 where it enumerates the considerations to be borne in mind while deciding alimony. The considerations to which the court is to have regard (as at present enumerated) are pecuniary (income and property) or moral (conduct), but there may be other circumstances, e.g., the health of the party applying for maintenance, or his or her age. This is, perhaps, implicit, but can be made explicit by amending section 25(1).

8.29. There are two circumstances in which a court is bound to rescind its order for permanent alimony and maintenance under sub-section (3) of section 25. The first is where the party in whose favour the order is passed remarries, and the second is, where the party does not remain chaste. The first case presents no difficulty, but the second case does. The difficulty arises in this way. Unchastity leads to cancellation of the order, if the unchastity is subsequent to the decree. Therefore, unchastity before the decree has, in some cases1, been construed as disentitling the wife to any maintenance under section 25. Thus, indirectly, the mandatory provision as to subsequent unchastity reflects on maintenance to a party being allowed at all, where the party had been unchaste before the decree.

1. Rajagopalan v. Rajamma, 1966 Ker Law Times 891: AIR 1967 Ker 181 (Vaidyalingam J.), cited with agreement in Sardar Lal v. Vishoni, AIR 1970 J&K 150.

8.30. Now, it may be noted that such a harsh view is consistent neither with modern attitudes, nor with ancient doctrine1. The Divorce Act2 contains no such limitation.

1. For the Hindu Law, see Amar Kanta v. Soyona, AIR 1960 Cal 438.

2. Section 37, Indian Divorce Act, 1869.

3. Section 37, India Divorce Act, 1869.

8.31. A decision of the Court of Appeal in England-Clear v. Clear, (1958) 2 All ER 353 (357, 358) (CA),-is sometimes cited to support the view that an adulterous wife is denied maintenance. That decision, however, takes no such extreme view. In fact, the discussion in the judgment makes it very clear that, (i) the matter is within the discretion of the Court; (ii) the discretion is exercised on a variety of factors; and (iii) the conduct of the parties is one of them. The case law referred to in that very judgment brings out the wide discretion of the court.

8.32. Subsequent English cases do not take a substantially different view1. In Iversion's case2, Lately J. made it abundantly clear. He said:-

"In practice, a wife's adultery may or may not disqualify her from succeeding in her application for maintenance and may or may not reduce the amount allotted. At one end of the scale her adultery may indeed disqualify her altogether. It may do so, for example, where it broke up the marriage, where it is continuing and where she is being supported by her paramour. At the other end of the scale, her adultery will not disqualify her and may have little, if any, influence on the amount. Where (as in this case) a wife, after doing all she can to persuade her deserting husband to return to her and their children, in her loneliness lapses and commits two isolated acts of adultery, I cannot believe that Parliament intended the court in weighing the conduct of the parties' to adjudge that such a wife should receive no maintenance or indeed that her maintenance should be reduced substantially, if at all. I know of no support for such a proposition in the reported cases."

In Spence v. Spence, (1964) 3 All ER 61, a contention that by her subsequent adultery the wife forfeited right to maintenance was rejected.

1. (a) Iverson v. Iverson, (1966) 1 All ER 258: (1966) 2 WLR 1168 (1171B) (Latey J.);

(b) Courtney v. Courtney, (1966) 1 All ER 53: (1966) 2 WLR 524;

(c) Miller v. Miller, 1961 Probate 1: (1960) 3 All ER 115;

(d) Medlicott v. Medlicott, (1962) 1 All ER 449: (1962) 1 WLR 136 CA (Adultery by wife after decree);

(e) M.V.M., (1962) 2 All ER 895: (1962) 1 WLR 845.

2. Inverson v. Inverson, (1966) 1 All ER 258.