Botawala de Rander vs J.P. Mitter

Bell, J.—This is an application for an order that the petitioner in this divorce case should give security for the costs of the co-respondent.

The circumstances in which the jurisdiction of this Court is sought are unusual. The petitioner apparently is a practising Barrister in Calcutta where

he has practised for the last 14. years or thereabouts. For 31/2 years he practised in Meerut. The marriage took place in Calcutta and the adultery

is alleged to have taken place in Bombay. The allegations of adultery in the petition are of the vaguest description and in the form in which they

stand at the moment, would not enable the petition to go very far. With regard to the practice as to ordering security for costs u/s 7 of the Indian

Divorce Act, the Courts in India act and give relief on principles and rules which as nearly as may be conform to the principles and rules observed

in England under the Matrimonial Causes Act and Rules. It has been said that this section has been enacted so as to give the Courts in India the

fullest power to do justice. The discretion given to the Indian Courts is completely unfettered, and the Courts should endeavour to exercise their

discretion Cautiously and carefully not only with regard to the parties themselves but to the interests of society and public morality in general. It was

decided in Madras in Agnes Ammal v. Paul (1935) 70 M.L.J. 321 : ILR Mad. 509 that the whole object of Section 7 is to keep the practice of

the Indian Courts in line with the English Courts but subject to the provisions of the Indian Divorce Act. In England, there is no settled practice,

and it is always a matter of discretion as to whether security for costs is to be ordered, but so far as any guidance has been given, it will be found in

Redfern v. Redfern (1890) 63 L.T. 780 where it is said that security may be ordered (1) where there is a claim for damages and (2) where the

petitioner is out of the jurisdiction. The reasons for this would, seem to be that where there is a claim for damages, the co-respondent may feel

compelled to fight the petition merely on the ground of quantum, i.e., in a case where although the petitioner may be entitled to a divorce, by reason

of his conduct or other circumstances he is not entitled to the damages that he claims; secondly, where the petitioner is outside the jurisdiction of

the Court, the co-respondent if he is successful, may find it difficult, if not impossible, to enforce an order made in his favour for costs. The

petitioner here has made a claim for damages and he is outside the jurisdiction of this Court. Section 45 of the Indian Divorce Act provides that all

proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure. It is urged on behalf of the petitioner

therefore that Order 25, rule I applies. That is the order which deals with security for costs and when it may be required from a plaintiff, and says

that where it appears the plaintiff resides out of British India and that such plaintiff does not possess sufficient immovable properties within British

India, then security may be ordered, and it is contended that if that order and rule apply, this petitioner being within British India security cannot be

ordered against him. I think, however, Section 45 merely provides for matters of procedure, and does not apply to a case like this where in any

event the Court must exercise its discretion. The test, I think, which I must apply is, has the petitioner assets in this country against which execution

can be levied? He certainly has none within the jurisdiction of this Court. He says himself that in Calcutta he has a motor car worth Rs. 7,000. He

does not state the age of the car or its condition. He says also that he has a law library worth many thousands of rupees. The latter was valued in

his recent insolvency from which he obtained his discharge in 1940 at Rs. 300 only. He says that he has a share in family property worth many

lakhs of rupees. But it is clear, and he admits it, that he has no immovable property against which this co-respondent, if successful, could proceed.

In all the circumstances, I think this is a case where security should be given. I ought to say that I am not uninfluenced by the fact that he has

deliberately sought the jurisdiction of this Court, knowing that all the evidence will have to come from Bombay or Calcutta and thereby deliberately

increasing the costs of the parties involved.

On the facts, this is a case where security should be given, and I order the petitioner to find security. It is not necessary to cover the whole of the

problematical costs of the co-respondent, if successful, and it will be enough for present purposes if I order him to find a sum of Rs. 1,000 within

three weeks. The costs of this application will be costs in the cause.