LOUISE DINSHAW CAMBATA Vs. DINSHAW S CAMBATA

JUDGEMENT

(1.) THIS is an appeal from an order passed by Judge Mehta of the Bombay City Civil Court on 24th July 1970 dismissing a Chamber Summons taken out by the petitioner-wife on the 24th of April 1970 for payment pendent lite of a sum of Rs. 17,000/- in respect of her expenses of the proceeding, and for deposit of a further sum of Rs. 30,000/- towards the further costs of the proceeding.

(2.) THE short facts necessary for the purpose of disposing of this appeal are that the parties were married in Bombay on the 10th of May 1952 under the Special Marriage Act, 1872, which under Section 51 (2) (a) of the Special Marriage Act, 1954, must be deemed to have been a marriage solemnised under the latter Act. There are four children of the said marriage. On the 14th of November 1968, the petition out of which the present proceeding arises for divorce on the ground of desertion since the beginning of 1965, On a Notice of Motion taken out by her for interim custody, alimony, pendent lite maintenance of the children and provision for her residence in a separate part of the matrimonial home. His Honour Judge Suresh of the Bombay City Civil passed an order on the 20th of December 1963 by which he, inter alia, ordered the respondent to pay to the petitioner a sum of Rs. 500/- to cover the costs of the petition. It is not disputed that the said amount has been paid by the respondent to the petitioner in compliance with that order. The petitioner has thereafter taken out the present chamber Summons on the 24th of April 1970 for the reliefs already set out above. The petitioner's case in support of the Chamber Summons is that, after the said order of Judge Suresh, there has been considerable correspondence and numerous proceedings between the parties and considerable expense has been set out in detail in paragraphs 6 to 16 of the affidavit filed by the petitioner in support of the chamber Summons. In his order dated 24th July 1970 dismissing the chamber Sumons, Judge Mehta stated that, in view of the quantified party-and-party costs of the present proceedings which are fixed at Rs. 125/- under the Rules applicable to the Bombay City Civil Court, the practice has developed to grant, pendent lite, to the wife in matrimonial petitions in that Court only a sum of Rs. 125 or Rs. 150 by way of the expenses of the proceedings. Judge Mehta distinguished the cases that were cited before him by the learned counsel for the petitioner as being governed by a different law. He further held that there had been no change in circumstances which would justify him in granting expenses in excess of what had been fixed by Judge Suresh by his order dated 20th December 1968. It is from that order of Judge Mehta that the petitioner-wife has preferred the present appeal which was admitted by me on the 4th Feb, 1971. In the view which I take, a very important event has occurred since the filing of this appeal which must be mentioned here, and that is, that the main petition itself has already been dismissed by the Bombay City Civil Court on the 23rd of January 1973, which would be just before the present appeal was heard by me.

(3.) THE first question that arises therefore is whether an order for payment pendent lite of the expenses of the proceeding can be made under Section 36 of the Special Marriage Act, 1954, after the substantive petition for divorce has itself been disposed of. It is the contention of Mr. Zaiwalla that the order of the appellate court must relate back to the date of the passing of the order by the trial Court. This contention of r. Zaiwalla derives support from the decision of the Privy Council in the case of Kristo v. Rajah Burrodacaunt Roy. (1872) 14 Moo Ind App 465 (PC) in which it was laid down, as far back as 1872, that the function of an appellate Court is to determine what decree the Court below ought to have made and to affirm, reverse or vary the decree under appeal (at p. 490 ). Mr. Zaiwalla contended that the order sought on the present Chamber summons can, therefore, be made by me, even though the main petition has been disposed of the main petition has been disposed of by now. As a general proposition, no exception can be taken to Mr. Zaiwalla's proposition. Indeed, as far as alimony pendent lite is concerned, the substantive law goes further and provides that such alimony is usually payable from the date of the service of the main petition (Latey on divorce, 14th Edn. p. 233) or from the date of service of the application, but may be made payable from a later date if so ordered or if the parties agree (Latey. p. 900 ). Having regard to the very nature of the provision contained in Section 36 of the Special Marriage Act, 1954 the Court is. however, bound to take into account all subsequent events which may be relevant to the making of an order under that section. The heading to Section 36 which, it may be stated, is part and parcel of what was enacted by the legislature itself, is, "alimony pendent lite," and it is under that heading that the section provides both for an order for payment of the expenses of the proceeding life," and it is under that heading that the section provides both for an order for payment of the expenses of the proceeding to the wife, as well as for a periodic payment of the expenses of the proceeding to the wife, as well as for a periodic payment for her support. This would, in my opinion, indicate, that the legislature has regarded the expenses of the proceeding as being part of alimony pendent lite on the footing that what the wife needs for her support and what is necessary for the expenses of her proceeding must both the provided for, pending that proceeding. This practice originated with the Ecclesiastical Court and was obviously just and necessary in view of the legal position that prevailed in England in those days, under which the wife on marriage ceased to have any legal right to property and all her property vested in her husband, but "still prevails, despite the change which has taken place in the social and economic relations of the sexes during the present century" (Latey. p. 228 ). The whole object if the provision in Section 36 is that the wife should not be at a disadvantage in contesting the proceeding as against her husband but should be put in a position in which she would be able to contest the proceeding effectively, or to use the words of Lord Merrival in the case of M. V. M. which will be cited in detail later on in this judgment, to secure "that the wife should be heard in the case. " Having regard to that object, in my opinion, no order for payment of the expenses of the proceeding can be made under Section 36, once the proceeding itself has come to an end, for it cannot thereafter sub-serve the purpose for which it was intended viz. , to enable the wife to contest the proceeding. This view which I have take, having regard to the object of the provision therein contained, happily finds support from authority. In Latey or Divorce 14th Edn. at p. 900 it is stated that where a petition of the wife is dismissed, the suit ends, and no order for alimony pendent lite "could of course be made. " It is further stated there (also at p. 900) that no such order can be made after a final decree has been pronounced, even if the proceedings were initiated before such decree, and in support of that proposition, the case of M. v. M. 1928 P. 123 has been cited there. The facts of the case were that the wife filed a petition for judicial separation on 26th March 1927, alleging adulator on the part of the husband, which was denied by him. The case was heard and a decee for judicial case was heard and a decree for judicial separation was pronounced, with costs, on 2nd November 1927, giving the wife the custody of the only child of the marriage. Earlier in the proceedings, the wife had filed her petition for alimony pendent lite, but that petition was heard pendent lite, but that petition was heard by the Registrar only on 11th January 1928, which would be more than two months after the disposal of the main petition. The Registrar made no order on the petition, except in regard to costs, and the wife appealed from that order to the Judge in chambers who adjourned it into Court for argument. Confirming the Registrar's order and refusing the application. Lord Merrival observed (at p. 126) that the rules of practice in question must manifestly be construed with due regard to the subject - matter of the law relating thereto, that under the practice of the Ecclesiastical Courts, two distinct powers existed in respect of the enforcement of the husband's duty to maintain his wife, viz. pending suit the coercive authority of the tribunal was available to secure to the wife means of subsistence and necessary money for costs; and when the question between them had been determined by a decree, the wife. If she was successful, might obtain a decree to ensure permanent maintenance according to her husband's means. Lord Merrivale want on the state that the interlocutory processes for alimony and costs were coercive means of "securing. . . . . . . . . . . . that the wife should be heard in the cause" and that those processes were "purely transitory. " the taxation of her costs from day-to-day. It was further laid down in the judgment in the said case (at p. 127) that the practice of the Court as illustrated by previous orders rested upon the fact that the process resorted to before decee was "a privileged procedure limited by the necessities of the case and not the exercise of a substantive right such as gives a cause of action. " It was held that the necessity which could be so dealt with ceased when the decree was granted. Lord Merrivale observed that to give a direction at that stage for the wife's maintenance during the period prior to the decree viz. , March to November 1927, while the litigation was proceeding, would involve "mischievous con consequences. " Though the decision in 1928. P. 123 actually related to alimony pendent lite, it is clear from the observations of Lord Meerivale referred to by me that the provision pendent lite of necessary money for costs stands on an identical footing and the same principles must apply to it as to alimony pendente lite. It may here be observed that in England there is no statutory provision expressly providing for payment pendente lite of the expenses of the proceeding to the wife, but under Rule 65 (1) of the Matrimonial Causes Rules, 1950, a wife may apply for security for her costs upto the hearing, and of and incidental to the hearing, and the Registrar after taking all the circumstances into account may order the husband to apy the sum so as-certained or some portion of it into court, or to give security therefore, and may direct a stay of the proceedings until that order is complied with. Curiously enough, in our Special Marriage Act, 1954, there is, however, no provision for deposit in Court or for security of costs, but there is only the provision that is to be found in Section 36 for payment pendente lite of the expenses of the proceeding to the wife. The provisions for aliimony pendente lite as well as for payment pendente lite of the expenses of the proceeding to the wife are to be found in the same section viz. , Sction o36: are intended to subserve the same object viz. , to use to words of Lord Merrivale in the case of M. v. M. (at p. 126), "that the wife should be heard in the cause;" and are govoeorned by the same hisitorical background; andmust, therefore, be governed by the same principles. Indeed, the decision in 1928 P 123 places them on the same footing. The view taken in England in the case of M. v. M. finds support in the decision of a Division Bench of the Andhra Pradesh High Court consisting of Subba Rao C. J. and Viswanath Sastri J. in the case of Subba Rao v. Anasuyamma, AIR 1957 Andh Pra 170 in which, on the basis of the provision in Section 5 (7) (a) of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, whichw as similar to Section 36 of the Special Marriage Act, 1954, an application was made by the wife for payment, of the expenses, not only during the pendency of the appeal, but also for the period during which the petition had been pending in the Court below. It may be mentioned that under Section 5 (7) (e) of the said Act the appellate Court was empowered to exercise the powers conferred on the trial Court under Section 5 (7) (a) thereof. In his judgment Subba Rao, C. J. stated as followos : "as we stated, the object of the subsection was only to provide for a wife to conduct the proceeding fairly and well and that object will be achieved by giving to the wife the necessary means to condeuct the proceeding then pending. The clause either expressly or by necessary implication does not confer power on the appellate Court to make a provision retrospectively. " i, therefore, hold that it is not competent to me to pass the order sought on the present Chamber Summons, having regard to the dismissal of the main petion on the 23rd January 1973.