NADIRSHAW JAMSHEDJI VACHHA Vs. MANEKBAI NADIRSHAW VACHHA

JUDGEMENT

(1.) THIS appeal is preferred against the decision of B. J. Wadia J. rejecting the application in the form of a chamber summons taken out by the defendant in a Parsi Matrimonial suit in Bombay for an order that the amount of permanent alimony of Rs. 85 per month awarded to his former wife, the plaintiff, by Mr. Justice Davar in 1928, and subsequently reduced to Rs. 50 per month by B. J. Wadia, J. in 1935, be altogether rescinded. The only ground on which the defendant-appellant prayed for this order was that after she was divorced from him, the wife had remarried in 1934, and the fact of remarriage itself was a sufficient reason, under the new Parsi Marriage and Divorce Act of 1936, for the rescission of the order of permanent alimony which was made under the previous Act of 1865 in which, however, there was no provision for; such rescission in the event of the wife's remarriage.

(2.) THE appellant relied on Section 40 of the new Act which runs as follows : 40. U) THE Court may, if it shall think fit at the time of passing any decree under this Act or subsequently thereto on application made to it for purpose, order that the husband shall, (a) to the satisfaction of the Court, secure to the wife while she remains chaste and unmarried such gross sum or such monthly or periodical payment of money for a term not exceeding her life as, having regard to her own property, if any, her husband's ability and the conduct of the parties, shall be deemed just, and for that purpose may require a proper instrument to be executed by all necessary parties and suspend the pronouncing of, its decree until such instruments shall have been duly executed, or, (b) make such monthly payments to the wife for her maintenance and support as the Court may think reasonable. In case any such order shall not be obeyed by her husband it may be enforced in the manner provided for the execution of decrees and orders under the Code of Civil Procedure, 1908, and further the husband may be sued by any person supplying the wife with necessaries during the time of such disobedience for the price of such necessaries. (2) THE Court, if satisfied that there is a change in the circumstances of either party at any time, may at the instance of either party vary, modify or rescind such order in such manner as the Court may deem just.

(3.) THE last contention is about the order of costs. THE learned Judge, in dismissing the summons with costs, has made an order "Counsel certified" under which, we are told, costs have been taxed on the scale prevailing on the Original Side of the High Court. It is contended that this is erroneous because under the rules and Table of Fees enacted by the High Court for trial of cases in the Parsi Matrimonial Court of Bombay, there is provided a special scale of fees and it is laid down that those fees only shall be allowed in cases tried under Act XV of 1865, i.e. the former Parsi Marriage and Divorce Act. It is further contended that no new rules have been framed under the new Act of 1936 but that until then, by virtue of the provision in the General Clauses Act, those rules are still applicable to trials under the new Act. I think there is force in this contention. We are told that the practice has been to tax the costs on the Original Side scale notwithstanding the special scale. If that is so, I am unable to see how this practice is consistent with the rule that this special scale of fees only shall be allowed in Parsi Matrimonial cases. Our attention is drawn to the case of Payne & Co., v. Pirojshah (1911) 13 Bom. L. R. 920 where at p. 933 Davar J. sitting on the Original Side has observed that if costs other than those provided in the scale are incurred by a solicitor on behalf of his client, i.e. the wife, in a Parsi Matrimonial suit, he can hold the husband liable for costs incurred, and in a regular suit on the Original Side to recover them, they can be granted to him on proper taxation even though they are not covered by the special scale of fees laid down, I do not think those observations are applicable to the present case and I see no reason why effect should not be given to the only scale provided in a Parsi Matrimonial suit, I am, therefore, of opinion that the costs should be taxed on the scale of fees specially prescribed under the rales.