LEELIE KURIAKOSE Vs. T N KURIAKOSE

JUDGEMENT

(1.) THIS is an application taken out by the respondent in O. S. A. No. 66 of 1958 pending in this court. The appeal is against the decree passed in O. M. S. No. 9 of 1957, allowing the petition filed by the petitioner herein for judicial separation from her husband, the respondent. The present application is for the sanction of a reasonable amount to be paid to the petitioner either in a lump sum or in installments by the respondent to enable her to defend the appeal and other interlocutory applications and for an order that the compliance of the same may be made a condition for the respondent-appellant prosecuting the appeal and connected proceeding. In the affidavit filed in support of this application we find the following statements of the legal position. In paragraph 2, the applicant says :

(2.) THERE is no provision as such in the Divorce Act or in any of the rules framed under the Act conferring a right on the wife who is a party to the proceedings under the Act to obtain any advance funds to prosecute any suit or other proceeding. Section 7 provides :

(3.) MR. Govind Swaminathan, appearing for the respondent, drew our attention to the decision of a Bench of this court to which one of was a party in Mrs. Debnam v. Mr. Debnam, 1949-1 Mad LJ 550: (AIR 1949 Mad 880 ). That was a case where an application was made by the wife for a direction to the husband to pay her a a sum of Rs. 350 as counsel's fee and the amount required for paying the printed papers to enable her to conduct the appeal which had been filed by the husband against a decree nisi for dissolution of the marriage. There was also an alternative prayer for security for the costs of the appeal. It was held that the wife was not entitled to an order directing the respondent to pay her mor eys for the conduct of the appeal. An order for security for the costs was made, but, we are not concerned with that part of the judgment as, before us, there is no such application. It was observed in the course of the judgment that no authority had been brought to the notice of the Bench for an application of the rule relating to a suit to an appeal either by the wife or by the husband. The rationale of the rule for making the husband supply the wife with funds to conduct a suit for dissolution of the marriage was discussed and it was pointed out that the rule was based on two principles, namely, the doctrine of common law agency of necessity; and secondly, public policy in relation to the protection of the married status.