YVONME GWENDOLINE MARIE LEWIS Vs. ALOYSIUS LEWIS

JUDGEMENT

(1.) THIS is an application under Section 7 of the Indian Divorce Act by the respondent in O.M.S. No. 17 of 1948 against her husband, the petitioner therein, for an order directing him to pay to the applicant a sum of Rs. 300 in order to enable her to meet the expenses incidental to the defence of the suit. Mr. Gopala Menon on behalf of the respondent herein has raised a series of objections. The first objection is that the application is not maintainable under the Indian Divorce Act. Section 7 of that Act reads thus:

(2.) THE applicant has relied on Rule 74 of the Matrimonial Causes Rules in force -in England and contends that by the combined force of Section 7 of the Indian Divorce Act and Rule 74 of the English Rules, the applicant is entitled to an order for costs. Sub -rules (2) and (3) of Rule 74 of the Matrimonial Causes Rules provide for the wife filing her bill of costs for taxation as against her husband and asking for security for her costs of and incidental to the trial or hearing of the cause. Upon taxing the same the Registrar or taxing officer may order the husband to pay to> the wife or into Court her costs up to the setting down of the cause and to pay into Court or secure the costs of and incidental to the trial or hearing. Mr. Gopala Menon's contention is that the principles and rules on which the Matrimonial Court in England acts are not applicable en masse to divorce actions in this country as their applicability is made under Section 7 subject to the provisions of the Indian: Divorce Act and so long as there is no specific provision in the Indian Divorce Act. the gap cannot be filled by up invoking the application of one of the rules in the Matrimonial Causes Rules. Reliance for this purpose is placed on Section 16 and. Section 35 of the Indian Divorce Act which are the only two sections in that enactment dealing with costs and they do not cover a case of this description.

(3.) THIS question has come up for consideration in a series of decisions in the various High Courts in India. So far as this Court is concerned in a line of cases headed by Natal v. Natal, I.L.R. (1885) Mad. 12 it has been held that a wife without property of her own was entitled to have provision made by her husband for payment of her costs in the suit notwithstanding Section 4 of the Indian Succession Act, the principle being that as the wife has no property of her own, the same reason for securing costs would apply, viz -, her inability otherwise to continue the proceedings and to meet her husband on equal terms. This view has been adopted in the Bombay and Allahabad High Courts. It was pointed out in one of the Bombay decisions, Mayhew v. Mayhew, I.L.R. (1894) Bom. 293 that the passing of the Married Women's Property Act in England made no difference with regard to the securing of wife's costs and that having regard to Section 7 of the Indian Divorce Act, the practice prevailing in England should be followed in India, viz., that unless the husband can show that costs should not be allowed, the wife will be entitled to her costs. In a recent decision of the Allahabad High Court, Taqub Masih v. Christina Masih, I.L.R. (1940) All. 802, the case -law was reviewed and it was held that a wife in India is entitled to claim her costs from a husband who institutes proceedings against her for dissolution of marriage on the ground of adultery and the petition should be adjourned till the husband pays the money in Court. In a decision of Reilly, J., in Iswarayya v. Swarnam Iswarayya, (1929) 58 M.L.J. 29, some doubt was cast upon the applicability of the statutory provisions and statutory rules of the English law to cases arising under the Divorce Act. The learned Judge was of the view that the words " principles and rules " in Section 7 of the Indian Act mean principles and rules of law, of evidence, of interpretation, of practice, and of procedure but not statutory provisions nor statutory rules and this view was taken because of the expression found in the commencement of the section, viz., that the principles and rules were to be subject to the provisions of the Act. This case went up in appeal to the Judicial Committee and Their Lordships' decision is reported as Iswarayya v. of the report, the Board observed: