053-NLR-NLR-V-48-ROWLANDSAppellant-and-ROWLANDS-Respondent.pdf
Rowlands v. Rowlands.
168
1947Present: Soertsz S.P.J. and Jayetileke J.
ROWLANDS, Appellant, and ROWLANDS Respondent.
93 Inty.—D. C. Colombo, 438 D.
Alimony—Decree of separation—Order for payment of alimony entered ofconsent—Possibility of subsequent modification of such order—CivilProcedure Code, s. 615.
An order for permanent alimony entered by the consent and agreementof both the parties concerned cannot be subsequently modified undersection 615 of the Civil Procedure Code on the ground that the husband’sincome has suffered substantial reduction, .unless such modification isprovided for in the consent decree.
PPEAI. from an order of the District Court, Colofclbo.
if. V. Perera, K.C. (with him S. J. Kadirgamar), for the plaintiff,appellant.—In this case a decree for separation was entered, and anagreement as to alimony was embodied in the decree. That agreementwas made subject to variation. Subsequently an amended decree byconsent of parties was entered, omitting the words which empoweredthe variation.
The order as to alimony was made under section 615 of the CivilProcedure Code. The two sub-sections (1) and (2) of the section dealwith two different sets of circumstances. Sub-section (1) empowersCourt to cause an instrument to be executed for the purpose of securingto the wife a gross sum of money or an annual sum for a term not exceeding•her own life and sub-section (2) enables Court to order the husband topay a weekly or monthly sum to the wife.
The order in this case was clearly made under section 615 sub-section (2)though a mortgage of property was given as a further security for monthlypayments. Such an order under sub-section (2) is variable at the instanceof the husband, while in an order under sub-section (1), the husband hasnothing further to do with payments to the wife once an instrumenthas been executed. The original -decree contained the order for alimonysubject to variation. Whether the words allowing the variation were"there or not the order for alimony could have been discharged, modified,or suspended for a time at the instance of the husband. The Courtdoes not seem to have power to make an order for alimony under sub-section (2) which cannot be varied under the circumstances mentioned3n sub-section (2).
It is submitted that the amending decree is inoperative, but, evenif it is operative, the order for alimony, being an order made undersub-section 2 of section 615, is subject to modification at the instanceof the husband.
Section 615 (1) and (2) only contemplates the two sets of circumstancesreferred to above. But Swaris v. Perera 1 purporting to follow Maidlow17. Maidlow * seems to contemplate a third set of circumstances whereparties may be acting outside the scope of section 615 by consent. In1 (1940) 41 N. L. R. #62.<L. R. (1914) Prob. 245 at 248.
170SOERTSZ S.PJ-—Rowlands v. Rowlands.
such a case where parties act outside section 615 and come to an agree-ment which is embodied in the decree such an agreement cannot bevaried. That seems to be the meaning of the decision in Swaris v. Perera' {supra).
In this case there is nothing to show that the parties were actingoutside section 615. .Mere agreement of parties as to the amount ofalimony does not show that the Court has no power to modify or varyorders of this kind even if they are made with consent of parties. SeeTangye v. Tangye1; Hall v. Hall
N.E. Weerasooria, K.C. (with him D. W. Fernando), for the defendant,respondent.—On the facts it is quite clear that the parties entered into acompromise and proceeded to act outside the scope of section 615 ofthe Civil Procedure Code. See Maidlow v. Maidlow (supra). Swaris v.Perera (supra) is exactly in point. It is on all fours with the presentcase and is binding on this Court.
H. V. Perera, K.C., in reply.—The mere fact that parties agree upon theamount of alimony does not show that parties were entering into acompromise outside the scope of section 615. Even where security isgiven the Court has power to vary the amount payable from time to time.See Tangye v. Tangye (supra).
Cur. adv. vult.
March 14, 1947. Soertsz S.P.J.—
This is an appeal from an order by the District Judge of Colomborefusing the application made by the husband in this case to have theorder made in the case in respect of permanent alimony modifiedon the ground that since the order was entered his income has sufferedsubstantial reduction. The application is made under section 615 ofthe Civil Procedure Code.
It is necessary to recapitulate briefly the facts that led to this applicationin order to understand and deal with the objection taken by the defendantto this application on the ground that it is bad in law. The plaintiff,that is the present petitioner appellant, sued the defendant for a divorceon the ground of malicious desertion. The defendant denied desertionon her part and counterclaimed a judicial separation on the ground ofmalicious desertion on the part of the plaintiff. When the case wascalled for trial, the plaintiff led no evidence. The defendant’s testimonywas taken in support of her allegation of malicious desertion and, in thecourse of her testimony, she declared that she was willing to accept'Rs. 400 on account of alimony for herself and Rs. 135 for the maintenanceof their minor daughter, and she also said “ I am content that the pay-ment of alimony be secured by the hypothecation (of certain namedproperties) to Mr. C. E. Jgyewardene as my Trustee ”. Decree wasto be entered for judicial separation and the terms in regard to alimony,maintenance and hypothecation of property by way of securing paymentwere agreed upon. But the matter and manner of the hypothecationcaused much discussion and delay_ In the end the Public Trustee wasbrought in and it was agreed to amend the decree in respect of alimony,maintenance and hypothecation. The court approved the amendment.
» L. R. (1914) Prob. 201 at 209.* L. R. (1915) Prob. 105.
SOERTSZ SJPJ.—Rowlands v. Rowlands.
171
In view of the extent of the amendments they were not made in theexisting decree itself but a new paper containing the amendments wasfiled to take effect as the amended decree. This amended decree hadpreviously been submitted to the plaintiff’s proctors for approval andthey made certain alterations in it and sent it back with the endorsement“ approved as amended in red ink One of the amendments theymade was to delete the words—
“ andthis allowance isto continue untilfurther ordersandbe
subjectto variation as future circumstancesmay require.”
which appeared in the decree as it was first entered. On these facts,the question for consideration is whether it is open to the plaintiff toseek to amend the terms in regard to alimony under section 615 of theCivil Procedure Code. That section provides for two kinds of ordersfor permanent alimony, namely (a) “ orders that the husband shall,to the satisfaction of the Court, secure to the wife such gross sum ofmoney, or such annual sumof money for anyterm not exceedinghis
own life…. and forthat purpose maycause a properinstru-
ment to be executed by all necessary parties, (b) orders 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. In regard tothe latter kind of orders, a proviso says “ that if the husband afterwardsfrom any cause becomes unable to make such payments it shall be lawfulfor the Court to discharge or modify the order ….”. It isclear that, whatever the position be in regard to the first kind of orders,the second kind of orders are, ordinarily, liable to modification. But,the point now taken is that no modification is possible if the order isone that has been entered by the consent and agreement of both theparties concerned. It is submitted that this decree, in so far as it wasconcerned with alimony, provided for security being given and, thereby,revealed the fact that it was an order made by agreement. The pay-ments ordered were monthly payments and the Court mero motu hadno power to order these payments to be secured by mortgage. That wassomething arranged by the parties themselves. A similar questionarose in the case of SwaTis v. Perera Hearne J. who delivered thejudgment of the Court observed as follows: —
“But the Court has no jurisdiction to make an order against thehusband for monthly or weekly payments coupled with an order requiringhim, to give security for such payments …. I am clearly ofthe opinion that the form of the order to which the defendantagreed left him no statutory right to reopen the matter ….Such an order could not be made apart from consent and, in the circum-stances of this case, the Court could not vary the order unless the plaintiff(in the present case it would be the defendant) also agreed to this beingdone. In the case of Maidlow v. Maidlow it was held that having regardto section 1 (2) of the Matrimonial Court Act, 1907—this providesfor the payment by the husband of monthly or weekly sums ‘duringtheir joint lives’—ah order for the payment to. the wife during her lifecould only be made by consent, and the order being so made could not be
i (1940) 41 N. L. It. 562,* (1914) Prob. 246.
172
HOWARD C.J.—de Alwis v. Selvaratnam.
varied”. There are not, in the present case, any allegations of fraud,mistake or misrepresentation leading to the entering of the consent orderupon which a consent decree may be impeached.
In certain cases, this result may work hardships but that is a matterfor the Legislature. So far as we are concerned, the law, as judiciallyinterpreted, prevents us from acceding to the petitioner’s application.1 would dismiss it with costs.
Jayetileke J.—I agree.
Appeal dismissed.