WILHELMINA CODD Vs. BERTIE ELIJAH CODD

JUDGEMENT

(1.) After setting out the facts the judgment proceeded. The husband applied to the Court on the first hearing of the wife's application to make absolute the rule nisi, and he then put forward certain grounds why he had not been present at the trial in January, and why I should hear his own petition and hear him in defence to his wife's petition. But he had not appealed from the decree nisi, nor had he appealed from the Chamber Judge's order, and in view of limitation he was out of time with the remedies which might at one time have been open to him. Further, as far as this Court is concerned, there still remained unsatisfied the Chamber Judge's order for security for coats. Accordingly, technically he was in contempt, and he could not strictly speaking be heard, more especially, as there was a judgment against him on his own petition dismissing his petition, and another judgment against him on the wife's petition for a decree nisi.

(2.) Now, under these circumstances, the position of a Matrimonial Judge in this country is an unfortunate one. In England, there is a King's Proctor whose duty it is to investigate any charge of adultery brought against a petitioner, and if necessary to move the Court to set aside the decree nisi. In India we have no King's Proctor, There was an impression, which I at one time shared on information erroneously given to me, that either the Advocate General or the Government Solicitor performed the functions of the King's Proctor in this country. That is wrong. Mr. Justice Bayley in Harriette A. King V/s. James S. King (1882) I.L.R. 6 Bom. 416 went carefully into this matter; and he explained that the Legislature deliberately struck out the provisions about the King's Proctor, when it passed the Indian Divorce Act governing our jurisdiction in India.

(3.) But that case is of further importance, because to some degree the learned Judge had the same problem to deal with as I have here. In the first place, is the husband entitled to appear having regard to the orders already standing against him? Mr. Justice Bayley considered he could not. He held that the solicitor to the respondent, who was in fact acting at the instance of the respondent, was not entitled to intervene or to show cause against the decree nisi being made absolute; that a respondent had no right to show cause, and that he could not do indirectly through another what he was not permitted to do himself. Then on a subsequent date counsel in that case asked to have the decree nisi made absolute on the ground that under the circumstances no person had really shown cause under Section 16 of the Indian Divorce Act against the decree nisi being made absolute. The Court, however, refused the motion, and adjourned the case directing that the petitioner should attend personally on a day specified, in order that the matters alleged in the affidavits might be investigated.