YVONME GWENDOLINE MARIE LEWIS Vs. ALOYSIUS LEWIS

JUDGEMENT

(1.) This is an application under Section 7 of the Indian Divorce Act by the respondent in O.M.S. No. 17 of 1948 against her husband, the petitioner therein, for an order directing him to pay to the applicant a sum of Rs. 300 in order to enable her to meet the expenses incidental to the defence of the suit. Mr. Gopala Menon on behalf of the respondent herein has raised a series of objections. The first objection is that the application is not maintainable under the Indian Divorce Act. Section 7 of that Act reads thus: 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. This is followed by a proviso.

(2.) The applicant has relied on Rule 74 of the Matrimonial Causes Rules in force-in England and contends that by the combined force of Section 7 of the Indian Divorce Act and Rule 74 of the English Rules, the applicant is entitled to an order for costs. Sub-rules (2) and (3) of Rule 74 of the Matrimonial Causes Rules provide for the wife filing her bill of costs for taxation as against her husband and asking for security for her costs of and incidental to the trial or hearing of the cause. Upon taxing the same the Registrar or taxing officer may order the husband to pay to the wife or into Court her costs up to the setting down of the cause and to pay into Court or secure the costs of and incidental to the trial or hearing. Mr. Gopala Menon's contention is that the principles and rules on which the Matrimonial Court in England acts are not applicable en masse to divorce actions in this country as their applicability is made under Section 7 subject to the provisions of the Indian: Divorce Act and so long as there is no specific provision in the Indian Divorce Act. the gap cannot be filled by up invoking the application of one of the rules in the Matrimonial Causes Rules. Reliance for this purpose is placed on Section 16 and. Section 35 of the Indian Divorce Act which are the only two sections in that enactment dealing with costs and they do not cover a case of this description.

(3.) This question has come up for consideration in a series of decisions in the various High Courts in India. So far as this Court is concerned in a line of cases headed by Natal V/s. Natal (1885) I.L.R. 9 Mad. 12 it has been held that a wife without property of her own was entitled to have provision made by her husband for payment of her costs in the suit notwithstanding Section 4 of the Indian Succession Act, the principle being that as the wife has no property of her own, the same reason for securing costs would apply, viz-, her inability otherwise to continue the proceedings and to meet her husband on equal terms. This view has been adopted in the Bombay and Allahabad High Courts. It was pointed out in one of the Bombay decisions, Mayhew V/s. Mayhew (1894) I.L.R. 19 Bom. 293 that the passing of the Married Women's Property Act in England made no difference with regard to the securing of wife's costs and that having regard to Section 7 of the Indian Divorce Act, the practice prevailing in England should be followed in India, viz., that unless the husband can show that costs should not be allowed, the wife will be entitled to her costs. In a recent decision of the Allahabad High Court, Taqub Masih V/s. Christina Masih I.L.R. (1940) All. 802, the case-law was reviewed and it was held that a wife in India is entitled to claim her costs from a husband who institutes proceedings against her for dissolution of marriage on the ground of adultery and the petition should be adjourned till the husband pays the money in Court. In a decision of Reilly, J., in Iswarayya V/s. Swarnam Iswarayya (1929) 58 M.L.J. 29, some doubt was cast upon the applicability of the statutory provisions and statutory rules of the English law to cases arising under the Divorce Act. The learned Judge was of the view that the words " principles and rules " in Section 7 of the Indian Act mean principles and rules of law, of evidence, of interpretation, of practice, and of procedure but not statutory provisions nor statutory rules and this view was taken because of the expression found in the commencement of the section, viz., that the principles and rules were to be subject to the provisions of the Act. This case went up in appeal to the Judicial Committee and Their Lordships decision is reported as Iswarayya v. Swarnam Iswarayya (1931) 61 M.L.J. 367 : L.R. 58 I.A. 350 : I.L.R. 54 Mad. 774 (P.C.). At page 782 of the report, the Board observed: Section 7 of the Act (which occurs under the heading jurisdiction ) makes it abundantly clear that the, legislative authority in enacting the Indian Divorce Act had in view the principles and rules upon which the Courts in England then acted and gave relief. It is therefore not irrelevant to cnquire how matters stood and stand in England in relation to this question. Again we find the following passage at pages 785 and 786: Their Lordships fully realise that an Indian Act does not fall to be construed in the light of statutes enacted by another Legislature. But this is a case in which the Indian Act makes express; reference to the Court in England to which the relevant jurisdiction of the Ecclesiastical Courts was transferred, and to the principles and rules on which that Court acts and gives relief. If it had been intended that the Courts in India, acting under this Act, should not have, in relation to a wife who had obtained a decree for judicial separation, the power which the Court in England enjoyed, of increasing the amount of her permanent alimony as and when the circumstances justified an increase, but that they should be restricted to the making of one order only for permanent alimony, their Lordships feel that this intention would have been declared in express and unequivocal terms. The matter came to be considered in a subsequent decision of a Full Bench of this Court in Sumathi Ammal V/s. Paul (1935) 70 M.L.J. 321. The majority of the Full Bench consisting of Stone and Mockett, JJ. (Wadsworth, J., dissenting), held following the latest amendment of the statutory rules in England, the proper form of a decree to be passed in the first instance in a suit for a declaration of nullity of marriage filed on the Original Side of the High Court was that of a decree nisi and not a decree absolute. In that decision, the whole history of the legislation terminating in the Indian Divorce Act was set out and reference was made to the decisions of this Court and of the Judicial Committee in Iswarayya V/s. Swarnam Iswarayya (1931) 61 M.L.J. 367 : L.R. 58 I.A. 350 : I.L.R. 54 Mad. 774 (P.C.) and it was significantly pointed out that the words principles and rules occurring in Section 7 of the Indian Divorce Act were found in the English Act of 1857, Section 22, which, in the same terms as Section 7, had provided that : the Court shall proceed and act and give relief on principles and rules, which in the opinion of the said Court, shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical Courts have heretofore acted and given relief, but subject to the provisions herein, contained, and to the rules and orders under this Act. It was held that by the majority in the Full Bench case that a distinction cannot be drawn between those principles and rules which are derived from statute and those which are derived from any other source. The result was that according to the view of the Full Bench the words included not only principles and rules of law, etc., but also statutory provisions and statutory rules in force and in application in the Courts for divorce or matrimonial causes in England. I must here point out before leaving this part of the case that the Calcutta High Court had once taken a different view with regard to this matter although in one of the decisions in Broadhead V/s. Broadhead (1870) 5 Beng. L.R. App.9, Phear, J., held on being satisfied that the wife had no separate property and means of paying the costs of a divorce suit, that she was entitled to an order for security for costs in spite of the fact that the parties were governed by Section 4 of the Indian Succession Act. The latest decision of that Court in Forrester V/s. Forrester (1930) I.L.R. 57 Cal. 1350 ultimately resolved the question into one of the discretion of the Court holding however that the matter was entirely within the jurisdiction of the Court. Having regard to this array of authority, which has now become more or less uniform, it has to be held that there is no substance in the objection that the application is not maintainable under Section 7 of the Indian Divorce Act.