Present: Basnayake, C.J., and de Silva, J.
MATHEW, Appellant;, and MATHEW, Respondent;S. G. 280—D. G. Colombo, 2,990/D
Husband, and wife—Decree of separation—Permanent alimony—Scope of ss. 614 and616 of Civil Procedure Code—Distinction between the tcords “ secure ” and“ pay ”.
The Court, when granting a decree of separation in favour of a wife, orderedthe husband to pay an annual sum of Rs. 20,400 in monthly instalments ofR-3. 1,700. With a view to securing for tho wife tho payment of the annualsum of Rs. 20,400 tho husband was ordered to hypothecate certain immovableproperty specified in tho decree.
Held, (i) that the order for hypothecation of immovable property did notfall within the ambit of either .sub-section 1 or sub-section 2 of section 615 ofthe Civil Procedure Code and could not therefore stand. .
(ii) that the order for paying tho annual sum of Rs, 20,400 in monthlyinstalments did not come within tho ambit of sub-section 1 of Section 615 ofthe Civil Procedure Code but could be treated as an order falling within the 'ambit of sub-section 2..
Held further, that in deciding the amount of permanent alimony no fetterwas imposed by section 615 of the Civil Procedure Code on the discretion ofthe Judge. Jfor was the Judge bound by tho amount awarded as alimonypendente life.'
XiPPEAL from a.judgment of the District Court, Colombo.
//. V. Perera, Q.G., "with S. J. Kadirgamar and John de Saram, fordefendant-appellant.-'
N. G. Wickremanayake, Q.G., with Vernon Wijetnnge, for plaintiff-respondent.
Cur. ado. vult.
May 7, 1956. Basnayake, C.J.—
The plaintiff, the wife of the defendant, has been granted a separationon the ground of malicious desertion. The Court has also ordered thedefendant to pay an annual sum of Rs. 20,400 in monthly instalmentsof Rs. 1,700 and a sum of Rs. 750 as maintenance for the five childrenof the marriage. With a view' to securing for the plaintiff the paymentof the annual sum of Rs. 20,400 the defendant has been ordered tohypothecate certain immovable property specified in the decree.
Learned Counsel for the appellant did not question the part of the ordergranting the separation but he canvassed the order for the payment ofan annual sum of Rs. 20,400 and the order directing the defendant tohypothecate his property.
It is contended on behalf of the appellant that the sum ordered asalimony pendente lite w-as Rs. 750 and that that sum was determined as asum sufficient for the plaintiff’s maintenance by the learned DistrictJudge (who is not the Judge who made the order for separation), afterconsidering all the circumstances of the appellant and the respondent.He did not complain against the order in respect of the children, but hesubmitted that the order for the payment by the defendant of such alarge annual sum as Rs. 20,400 to the plaintiff as permanent alimony isunreasonable and should be reduced.
Learned Counsel also submitted that the order that the appellantshould hypothecate his properties in a sum of Rs. 60,000, is not warrantedby section 615 of the Civil Procedure Code.
For the decision of this appeal it is necessary that the tine meaningand content of the provisions of section 615 should be ascertained.That section reads as follow's :—
“ 615.(1) The Court may% if it thinks fit, on any decree absolute
declaring a marriage to be dissolved, or on any decree of separationobtained by the wife, order that the husband shall, to the satisfactionof the court, secure to the wife such gross sum of money, or suchannual sum of money for any term not exceeding her own life, as,having regard to her fortune (if any), to the ability of the husband, and .to the conduct of the parties, it thinks reasonable ; and for that puiposemay' cause a proper instrument to be executed by all necessary parties.
(2) In every such case the court may make an order on the husbandfor payment to the wife of such monthly or weekly sums for her main-tenance and support as the court may think reasonable :
Provided that if the husband afterwards from any cause becomesunable to make such payments, it shall be lawful for the court to
discharge or modify tho order, or temporarily to suspend the same asto the whole or any part of the money so ordered to be paid, and againto revive the same order wholly or in part, as to the court seems fit ”.
Sub-section (1) enables the Court to secure to the wife a gross or annualsum of money for a term not exceeding her own life. It does not empowerthe Court to order the husband to pay direct to the wife a gross or annualsum.
The meaning of the word " secure ” in a similar context has been thesubject of decision in the case of Medley v. Medley x. In that caseJessel 3VI. R. observed as follows :—'
“ The further point was, however, one of more difficulty, as to theform of the order by which the appellant was ordered in the alternativeto pay to the petitioner the annual sum of f 500 by monthly payments.Now, when we look at the 32nd section of the 20 & 21 Viet. c. 85,the word * secure ’ appears to be used in a particular ■way. It iscontrasted with payment. The words are, ‘ that the Court mayorder that the husband shall to the satisfaction of the Court secureto the wife such gross sum of money or such annual sum of money forany term not exceeding her own life as having regard to her fortune,etc., it shall deem reasonable ’; and then at the end of the sectionit provides that * upon any petition for the dissolution of marriagethe Court shall have the same power to make interim ordersfor payment of money by way of alimony or allowance to his wifeas it would in a suit instituted for judicial separation ’. ThereforeI think that the intention of the legislature was that the gross orannual sum should not be ordered at once to be paid over to the wifebut should be secured, and being secured should be paid to her fromtime to time, that would give a meaning to the word ‘secure’ ascontrasted with ‘ pay ’ ”.
In the later case of Yales (Inspector of Taxes) v. Starkey 2 Jenkins, L.J.,when dealing with a similar provision in the Supreme Court of Judicature(Consolidation) Act, 1925, as amended by section 10, sub-section 4 ofthe Matrimonial Causes Act, 1937, expresses the following opinion :—
t: An order ‘ to secure ’ seems to me to suggest a disposition orobligation of some sort made or entered into pursuant to the order,as opposed to a mere direction to pay contained in the order itself.This is borne out by the provision of reference to conveyancing counselat the end of sub-section 3. It is also supported by the clear distinctiondrawn in section 190 between an order on a husband to secure a grossor annual sum to the wife for any term not exceeding her life undersub-section 1 and a direction on a husband to pay to the wife duringthe joint lives a monthly or weekly sum under sub-section 2
Sub-soction (2) authorises the Court, either in addition to or insteadof an order under sub-section (1), to order the husband to pay to the wifesuch monthly or weekly sums, for her maintenance and support, as it
thinks reasonable. It -would appear from a comparison of the two sub-sections that an order under sub-section (I) can operate even after thehusband’s death in the event of his predeceasing the wife and can bemade only where the husband has assets which can be secured. Theclaim of the wife in whose favour an order to secure has been made isenforceable even after the death of the husband against his estate.
An order under sub-section (2) can operate only during the jointlives of the husband and the wife. Any maintenance ordered underthis sub-section is liable to cancellation, temporary suspension, or modi-fication, or reduction if the husband becomes unable to make thepayments. But an order under sub-section (1) is not liable to be varied. –
The order for hypothecation of immovable property by the defendantdoes not fall within the ambit of either sub-section and cannot thereforestand. The order for paying the annual sum of Rs. 20,400 in monthlyinstalments does not come within the ambit of sub-section (1) but may betreated as an order falling within the ambit of sub-section (2). The pay-ment is one that may properly be described as maintenance and notpermanent alimony. Permanent alimony as opposed to alimony pendentelite is granted on dissolution of a marriage or grant of judicial separation.Section 614 limits the maximum amount that may be ordered as alimonypendente lite to one-fifth of the husband’s average net income for thethree years next preceding the date of the order while there is no suchlimit in the case of permanent alimony. In the early days theEcclesiastical Courts of England observed the one-fifth rule in regardto alimony pendente lite and granted a sum in the neighbourhood of athird of the husband’s income in the case of permanent alimony. Neitherthe English statutes nor our Code has imposed such a limitation in thecase of permanent alimony. The Court has a discretion and is notbound by any hard and fast rule. There are instances in which theCourts in England have awarded as much as half. In the instant casethe plaintiff was awarded alimony pendente lite in a sum of Rs. 750 permensem if she was permitted to reside in the house belonging to thedefendant No. 10 Frances Road, Wellawatte, and Rs. 1,000 per mensemif she was not permitted to do so. The learned District Judge who madethe order granting a separation has considered all the matters which werebeforo the Judge who ordered alimony pendente lite as well as the factsand circumstances disclosed by the evidence led at the trial. The sectionin no way fetters the discretion of the Judge in deciding the -amountof permanent alimony, nor is he bound by the amount awarded as alimonypendente lite. On the material before me lam not prepared to interferewith the order made by the learned trial Judge as I am unable to holdthat his order is unreasonable.
The order for hypothecation of property and that portion of the decreewhich relates to it is set aside.
I make no order as to costs of appeal.de Silva, J.—I agree.
Order partly set aside.
MATHEW, Appellant, and MATHEW, Respondent
Present: Basnayake, C.J., and de Silva, J.