MARIA M E L NORONHA Vs. PETER EVNORONHA

JUDGEMENT

(1.) His Lordship after discussing the evidence in the case held that the lower Court was right in coming to the conclusion that the charges contained in the petition were not proved. On the question of costs his Lordship said : But the real point which Mr, Gauba has urged, and I suspect which is the real reason why this appeal has been filed at all, is found in the submission that the learned Judge was wrong in depriving the wife of her costs although she failed in her petition. Now Mr. Gauba says that the principle of law is that if a wife files a petition for dissolution of her marriage, if she has no property of her own and if no misconduct is proved against her solicitors in launching that litigation, then she is entitled to her costs. Mr. Gauba says that as in this case the learned Judge has not found that there was any misconduct on the part of the solicitors and it is common ground that the petitioner has no property of her own, she must be given her costs although she has failed in the petition. In this case I might mention that an order was made against the husband to deposit certain amount as security for the wife's costs. Now the English practice as to a wife's costs in a divorce action has a historical background. At a time when a woman could not own any property, and when on her marriage whatever property she had vested in her husband, a rule of practice was devised in order not to make it impossible for the wife ever to fight a lititgation against her errant husband. It was obvious that the wife had no money and no property and she would not be able to induce any solicitor to take up her case which she wanted to place before the Court unless the solicitor felt an absolute certainty as to the result of the litigation and no solicitor can ever feel that Certainty. But the rigour of that rule has been considerably relaxed after the archaic system of law with regard to women's property was abrogated in England. Now that a woman can own property and now that she can earn and compete with a man on equal terms the rule has to a large extent lost its logical basis. We find the old rule of practice enunciated in the leading case of Robertson v, Robertson (1881) 6 P.D. 119. It was enunciated by Brett L.J. as being that a wife was ordinarily entitled to her costs unless it was established that "the solicitor who appears for the wife either knowingly prompted a case which it must be clear to anybody had no foundation at all, so that he had been countenancing improper litigation; or if he took steps which were merely oppressive or obviously unnecessary; or if he crowded the case with absurd evidence," then the costs of the wife should be disallowed either in whole or in part. Cotton L.J. says this (p. 125): When the wife has to take proceedings against her husband, or he against her-all her property being [vested] in him-she ought to be provided at his expense with the means of bringing her case before the Court or of properly defending the case brought against her; and whether she is successful or not, in my opinion, the rule is to this effect, that costs properly incurred in bringing her suit before the Court, or in defending the attack made on her, ought to be paid by her husband. That was in 1881 and since then in case after case the English Matrimonial Courts have relaxed, as I was saying, the rigour of that rule. It is now well established that the costs are in the absolute discretion of the Judge, and that in determining whether the wife should get her costs or not he must consider each case on its own merits. It is perfectly well-established now, that the misconduct of the solicitor is not the only ground on which the wife can be deprived of her costs. If her petition is groundless, or if she has made wild charges against her husband, the Court may take that into consideration, and while acquitting the solicitor from misconduct, refuse her costs, and may even mulct her in costs. In Usher V/s. Usher (1922) 128 L.T. 26, Salter J. refused to give the wife her costs though intending no reflection on the wife's solicitors. In Baldwin Raper V/s. Baldwin Raper and Metz : Baldwin Raper V/s. Baldwin Raper (1926) 42 T.L.R. 619 Hill J. refused to give a wife her costs on the ground that "her suit was based on shameful charges which were the inventions of a vile mind," and observed that if she could be made to pay the costs of it, she ought to be made to pay. The learned Judge then asked himself a question whether there was anything to prevent him from exercising his discretion and he came to the conclusion that there was no reason why he should not exercise that discretion except perhaps the question of costs of the wife's solicitor. The learned Judge finally came to the conclusion that the wife's solicitor had no higher or better right than the wife herself.

(2.) I may point out that there is and there must be a very serious responsibility on the solicitors to whom a wife goes for filing a petition for divorce against her husband. When she is a defendant and she wants to defend herself, the position is perhaps different, but when she is the attacking party, it is incumbent upon the solicitors to carefully scrutinise the charges that she wants to level against her husband and to make up their mind whether there are reasonable grounds for proceeding against her husband. If they fail to scrutinise the charges, or if they come to a conclusion which is not reasonable as to whether a petition should be launched or not, the solicitors take the risk of not being given their costs.

(3.) Now, in this case, I should straightway like to state that the solicitors of the wife are not guilty of fomenting this litigation. But I am not at all satisfied on the record of this case that the solicitors scrutinised the case of the wife with that care which it was their duty to do. We have on the record of this case instructions given to counsel to advise and draft petition for dissolution of marriage. On the question of adultery statements were submitted of only Ring, Kuddoos and Sequeira who could speak to the alleged incident of the adultery. Now it should have been patent to the solicitors that it would be very difficult indeed to establish a charge of adultery on the testimony of these three witnesses. Ring's reputation is notorious in this Court, and for the solicitors to expect that they would bring home to the respondent the charge of adultery on the mere testimony of this detective backed by his own henchmen was taking much too optimistic a view of the wife's case. With regard to cruelty in this case unlike most cases for divorce a very large volume of evidence was available which could have been carefully-considered by the solicitors. It seems that there were custody proceedings in the Bangalore Court between the husband and the wife. In those proceedings the letters, to which I have already made reference, written by the wife, were exhibited and therefore presumably those letters were before the solicitors. These letters would show that the wife's case that she was forced by her husband to undertake abortions one after the other seems to be patently false. The respondent was also charged in the petition with drinking, gambling and womanising. No attempt was made to prove against him any case of womanising or being drunk, and with regard to gambling the petitioner had to content herself with a solitary instance where the husband in a fit of optimism invested a large amount on a horse which failed to turn up at the winning post. It is true that in this case instructions were sent to counsel and counsel advised the solicitors to launch the litigation. I do not think that a solicitor can discharge his duty by taking shelter behind counsel. It is not sufficient merely to obtain an opinion from counsel to launch a matrimonial litigation. The duty is upon the solicitors themselves to scrutinise the petitioner's case, and they cannot discharge that duty by throwing the burden upon counsel. It is for them to decide, having scrutinised the materials before them, and if so advised having obtained counsel's opinion, and having considered the same; but the ultimate responsibility must be theirs and they must satisfy themselves and take every possible care to see that there was reasonable ground for proceeding with the wife's petition. I am conscious of the criticism that a severe rule as to costs may prevent a wife from fighting her husband in a fit case, but I am equally conscious that husbands who have very little money and who are with difficulty maintaining themselves should not be compelled to fight false cases prompted by their wives, and not only fight those cases but ultimately even if they succeed pay costs of the wife who had no justification whatever for launching the litigation. In this case Coyajee J.'s finding is that the wife's case was a tissue of inventions. It is on that ground that the learned Judge has deprived the wife of her costs. In my opinion also there is this criticism to be offered against the wife's solicitors that they might have been more careful and vigilant before they advised the petitioner to launch this litigation in which she was inevitably bound to fail. In my opinion, therefore, the learned Judge was right in coming to the conclusion that he did that on the merits of the petitioner's case, and he was also right in coming to the conclusion in making no order as to the costs of the petition.