DOROTHY EMMA STUART Vs. VERNON REGINALD STUART

JUDGEMENT

(1.) This is an application under Order 1, Rule 10, Civil P.C., by one Mrs. Mary Ivy Surdivall of the E.I. Railway Control Quarters, Forsyth Road, Lucknow. The applicant prays that this Court should direct that she be made a party to the Matrimonial Suit No. 7 of 1934, in which Mrs. D.E. Stuart is the petitioner and Mr. Y.E. Stuart, the respondent.

(2.) In her petition Mrs. Stuart has made allegations of adultery against the applicant Mrs. Surdivall and in these circumstances counsel has argued that, under the provisions of the Civil P. C. and the Divorce Act, this Court should grant the prayer of the petitioner and direct that Mrs. Surdivall be made a party to the divorce proceedings. Learned Counsel for the petitioner in the first instance opposed this application. He contended that under the provisions of the Code of Civil Procedure and the Divorce Act this Court had no jurisdiction to permit the intervention of a person who had been named by a petitioning wife in divorce proceedings. In support of his contention he referred to the case of Ramsay v. Boyle (1903) 30 Cal 489. In that case a Full Bench held that the High Courts in India had no power under the Civil Procedure Code and the Divorce Act to permit the intervention of the person named by the petitioner in a divorce petition and who had not been called as a co-respondent by the petitioner. In the English Divorce Act there is a section which specifically gives the Court power to permit a subsequent intervention. There is no such specific section in the Indian Divorce Act. Section 7 of the Act however does make a certain provision for following the rules and principles which are applied in the Court for divorce and matrimonial causes in England. The section runs as follows: Subject to the provisions contained in this Act the High Courts and District Courts shall, in all suits and proceedings, hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are, as nearly as may be, conformable to the principles and rules on which the Court for divorce and matrimonial causes in England for the time being acts and gives relief.

(3.) Learned Counsel for the petitioner has contended that this section refers to substantive law and is not concerned with matters of procedure. He has argued that the permission to a party to intervene is a matter of procedure not of substantive law. As at present advised I am unable to agree with this contention. The words used in the section is "act" and I see no reason whatever for restricting that word as suggested by learned Counsel for the petitioner. Section 45, Indian Divorce Act, is in the following terms: Subject to the provisions herein contained all proceedings under this Act between party and party shall be regulated by the Code of Civil. Procedure.