MARY DO ROZARIO Vs. ERNEST DO ROZARIO

JUDGEMENT

(1.) THIS is a wife's petition for judicial separation and a consequential order for alimony.

(2.) THE position is this. THE parties, who are Christians, were married in 1932. THEy were married at Vienna, and soon after the marriage the husband came to India, and later in the year the wife followed him. THE petition alleges that his sisters objected to his having married a European lady, and were not friendly towards her. In November, 1933, she went back to Vienna, and in April, 1934, returned to India. But the parties did not live together. THEy have not lived together since November 27, 1933, when the wife left India for Vienna. After her return in April, 1934, negotiations took place between the husband and the wife with regard to a separation, and the correspondence, which is annexed to the respondent's answer, shows that from August 6, 1934, until September 25, 1934, the husband and wife through their respective solicitors were negotiating with a view to the parties entering into a separation deed. It is not necessary to refer to that correspondence further than to say that it shows that the wife was being advised by independent solicitors, who were looking after her interest. This is not a case of the separation deed having been arranged entirely by the solicitors of the husband who brought in a tame solicitor to advise the wife to execute it. On September 25, 1934, the separation deed was executed. In the first clause the husband covenanted that the wife should live separate, and he agreed to make her certain payments. He was to pay her Rs. 1,500 down; he was to pay Rs. 500 to her solicitors for costs; he was to provide her with a passage back to Europe; and on receiving a cable advice that she had reached Vienna a sum of Rs. 5,000 was to be placed to her credit at some bank in Vienna. THEn in Clause II there is the usual covenant by the wife not to molest the husband and to allow him to live separately, and keep him indemnified against debts, and so forth, and not to institute any proceeding for restitution of conjugal rights. THEn in Clause IV it is provided: Neither party from this day shall have any claim against the other party in respect of any matter or account. That agreement was duly executed by the parties, the wife's solicitors attesting her signature, and the sums required to be paid by the husband were duly paid. But the wife says that they are now exhausted, and her case is that she is practically destitute.

(3.) I have felt some difficulty with regard to the proper order to make in this case as to costs. The wife's petition has failed, but the general rule in matrimonial suits is that the wife is entitled to receive her costs from the husband, whether she is successful or not, and whether she is petitioner or respondent. That rule was introduced into England at a time when on marriage the whole of the wife's property vested in her husband, and, therefore, unless he was bound to pay the wife's costs, a husband could never be charged with matrimonial offences, and a wife could never defend herself against unjust charges. Although there may not be the same cogent reason for the rule now, it has not been altered, and still applies with its original force in a case like the present, where the wife has no separate property. But the rule is always qualified in this sense that the solicitor of the wife must have an honest belief in his case. I do not mean to say that he must be satisfied that his case is going to succeed, but he must consider that his client has a case which ought properly to be put before the Court. To apply the rule without any qualification would be to encourage unscrupulous attorneys to file suits in the matrimonial Court, which had no real justification, and were merely a means of making costs. But although the rule is qualified in that way, it is very important that attorneys, who are asked to take up a case on behalf of a wife who has no money, should feel that they can safely do so as long as they act properly. Now, in this case there is no suggestion that the petition was filed with a view to making costs; I have no doubt that the real object of the petition was to secure maintenance for the wife, who is no doubt badly in need of it. But I feel grave doubt whether the wife's attorney really supposed that there was the slightest chance of obtaining a decree for judicial separation; and if I thought that the claim was preferred in this Court merely to bring pressure to bear on the husband taking advantage of the rule which allows the wife her costs in any event, I should decline to give her any costs. But Mr. Forbes, counsel for the petitioner, says that the form of the proceedings was based on his advice. His view was that the only possible way of getting maintenance was to apply to the matrimonial Court for judicial separation, and he assures me that he thought that there was a chance of getting) a decree for judicial separation. I think the petitioner's attorney was entitled to rely on counsel's advice, and in so doing must be taken to have acted bona fide in filing the petition. I propose, therefore, to make the usual order that the husband pay the wife's costs.