P L D 1953 Sind 12 (PLP)

VELLANI, J.‑The insolvent, who was adjudicated on his own petition on 15th April 1950, has now applied for ills dis charge. It appears from the Official Assignee's report that his only creditor is his judicially separated wife who opposes his discharge. Her claim has arisen in the following way. Having been married to the insolvent on 3rd April 1942, at Karachi and having a son by him aged about 7 years, she filed a suit in the High Court of Bombay sitting as the Parsi Chief Matrimonial Court for judicial separation from the Insolvent on the ground of cruelty and neglect, for alimony, for custody and maintenance of her child, for return of her articles of jewellery, for return of Rs. 1,500 paid for buying furniture, and for costs. She obtained an order against the insolvent for the payment of Rs. 90 per month for her maintenance, Rs. 30 per month for the maintenance of her child, for the return of the jewellery or payment of Rs. 1,00.) as the value thereof, the refund of Rs. 1 500 paid for furniture and for costs of the suit, Rs. 1,

460. Upon that foreign judgment, she filed a suit in this Court, and obtained a decree before Bachal, J. on 17th November 1949, for Rs. 990 and Rs. 300 for her and the child's maintenance up to 17th November 1948, for the return of her jewellery or its value of Rs. 1,000, refund of Rs. 1,500 paid for furniture, for Rs. 1,460 costs incurred at Bombay, and the costs of the suit filed in this Court. In April 1950 she applied to have the decree executed, where upon the insolvent filed his petition in insolvency, and was adjudicated insolvent. In his report the Official Assignee states that the insolvent does not appear to have committed any offence under sections 421 424, P. P. C. or under the Presidency Towns Insolvency Act. Under section 39 (2) of the latter Act, the only fact to which he draws the notice of the Court is that the insolvent's assets are not of a value equal to 4 annas in the rupee on the amount of his unsecured liabilities. He says, however, that the alimony granted to her by the Bombay High Court is not a debt provable in insolvency. If his contention is correct, then the sum of money which the insolvent has paid to the Official Assignee out of his salary earned from the Karachi Electric Supply Corporation will be of a value equal to 4 annas in the rupee on the amount of his unsecured liabilities. Section 46 of the Presidency Towns Insolvency Act, 1909, lays down that debts are provable in insolvency. That section is based upon section 37 of the English Bankruptcy Act. 1883. Reference has been made to English Cases under that and later Act which have held that alimony ordered to be paid by a husband to a wife is not a debt provable in insolvency. The result of these cases is stated by Luxmore, J. In re Hedderwick, Morton v. Binsley (L R (1933) 1 Ch. D 669 at pp. 674‑5.) as follows: "Consideration of the cases leads to the conclusion that alimony is a judicial assessment of the husband's obligation to maintain his wife. It is inalienable and unassignable; it cannot be affected by agreement between the parties or by the bank ruptcy of the husband Further it cannot be sued for at law. The order for its payment is not final or conclusive, even in the Divorce Court. It remains subject to the control of the Court, which may vary it from time to time, and there is complete discretion as to arrears: see in addition to the cases already cited in re: Hawkins, Ex parte Hawkins ((1894) 1 Q B 25), Kerr v. Kerr ((1397) 2 Q B 439), and Robins v. Robins ((1907) 2 K B 13)." For the wife, reference was made to the judgment of Wadsworth, J. in (1936) 165 I C 297 which held that the arrears of maintenance ordered under section 488, Cr. P. C, are a debt provable in insolvency. The late Sir Dinshah Mulla in his Tagore Lectures on the Law of Insolvency, 1930, at page 277‑8, dealing with the liability for maintenance under section 488, Cr. P. C. expresses the view: "If a person against whom such an order is made becomes insolvent and obtains a protection order, he will not be protected from arrest or imprisonment, for the protection order extends only to debts provable in insolvency", and a little later "debts or liabilities which are not proved in insolvency are not affected by the discharge of the insolvent". This view is based upon section 45 of the Presidency Towns Insolvency Act to which the said case has made no reference. Reliance was placed on the case in I L R 5 Cal. 536 which Wadsworth, J. treated as express authority that arrears of maintenance under a Magisterial order was a debt provable in insolvency, but the enactments under which that case was decided are so different that I hesitate to accept it as express authority. The learned Judge made no reference to the provisions of section 45 of the Presidency Towns Insolvency Act or to Mulla on Insolvency and I would hesitate even on principle in accepting his decision as correct. In any case, there is not in question here a maintenance order under section 488, Cr. P. C. but an order for the payment of alimony under section 40 of the Parsi Marriage and Divorce Act, 1936. The obligation of the husband to maintain his wife is under this section of the Act, and it has not been contended that there is any provision otherwise than in this Act, under which the husband can be ordered to pay alimony to his wife. The case in A I R 1945 Bom. 537 shows that on the ground of public policy a Parsi wife, who has been granted alimony under section 40, cannot batter away or give up her alimony, and even if she has done so, her consent or agree ment is void, as being contrary to public policy. That right is inalienable and unassignable, and it cannot be affected by an agreement between the parties. It may be obtained only at the time of passing a decree in proceedings under the said Act, or subsequently on an application made to a Court under thaw Act for that purpose, The order for payment of alimony remains subject to the control of that Court which may vary it from time to time as section 40 (2) shows. That being the nature of the alimony granted under section 40 of the Parsi Marriage and Divorce Act, 1936 I find the case difficult to distinguish from the English cases to which I have referred. I, therefore, hold that the alimony granted to the wife is not provable under section 46 of the Presidency Towns Insolvency Act in her, husband's insolvency. I therefore give the insolvent his discharge from the insolvency. A. H. Insolvent given discharge.