Ada Elizabeth Smurthwaite vs John William Smurthwaite

Bennet, J.—This is a reference by the taxing officer on the question of what is the proper court-fee for a petition for divorce under the Indian and Colonial Divorce Jurisdiction Act of 1926. The stamp reporter reported that ill such petitions a court-fee of Rs. 20 had always been paid under Article 20, Schedule 2 Court-fees Act. Learned Counsel for the petitioner contended that the petition for divorce was not under the Indian Divorce Act and that Article 20 only refers to a petition for divorce under the Indian Divorce Act. Learned Counsel contended that, the proper court-fee was Rs. 2. The Indian and Colonial Divorce Jurisdiction Act is not merely an act conferring jurisdiction on this Court but the Act further sets out in Section 1, Proviso (a) that the decree shall be granted only on grounds according to the law for the time being in force in England. The Court therefore in hearing this petition does not apply the Indian Divorce Act and therefore the court-fee applicable to the Indian Divorce Act cannot be applied to a petition under the Indian and Colonial Divorce Jurisdiction Act of 1926. For these reasons I consider that the report of the stamp reporter is incorrect. I hold that the proper court-fee of Rs. 2 has been paid in this case and therefore the petition should proceed. I do not think that a notice should issue to the Government Advocate.