Ethel Ada Brown vs Charles Earnest Brown

Meredith, J.—This is a court-fee matter which has been referred to me as Taxing Judge. The question is, what is the court-fee payable upon a petition for dissolution of marriage under the Indian and Colonial Divorce Jurisdiction Act, 1926, and 1940? In the present case a court-fee of Rs. 3-12-0 only has been paid under Schedule II, Article 1(d), Court-fees Act as on an application or petition presented to a High Court. The Stamp Reporter, however, took the view that court-fees should be paid under Schedule II, Article 20 which provides a court-fee of Rs. 80 in every petition under the Indian Divorce Act, except petitions u/s 44 of the same Act and every memorandum of appeal or cross-objection u/s 55 of the same Act. He concedes that that Article can only be applied by analogy, as no direct provision has been made in the Court-fees Act with regard to petitions under the Indian and Colonial Divorce Jurisdiction Act but he relies upon the fact that Section 1(4), Indian and Colonial Divorce Jurisdiction Act, 1926, provides that:

Proceedings before a High Court in India in exercise of the jurisdiction conferred by this Act shall be conducted in accordance with rules made by the Secretary of State in Council of India with the concurrence of the Lord Chancellor.

The rules made under this provision, published in the Gazette of India, dated 26th August 1927, provide in Rule 24 that subject to the provisions of these rules all proceedings under the Act between party and party shall be regulated by the Indian Divorce Act and the rules made thereunder and provide in Rule 22 that proceedings relating to alimony, maintenance, custody of children and to the payment, application or settlement of damages assessed by the Court shall be conducted in accordance with the provisions of the Indian Divorce Act, 1869, and of the rules made thereunder.

In the alternative, the Stamp Reporter suggested that the court-fee should be charged under the residuary article, Article 17(vi), Schedule II, Court-fees Act, which provides for "every other suit where it is not possible to estimate at a money value the subject-matter in dispute, and which is not otherwise provided by this Act."

The learned Taxing Officer, as there have been no decisions of this or any other High Court, save one to which I shall refer, and as the matter is of general importance, has made this reference to me u/s 5, Court-fees Act. He mentions that it has heretofore been the practice in this Court to require a court-fee under Schedule II, Article 20, Court-fees Act.

The petitioner, for the contention that only Rs. 3-12-0 is payable, relies uponthe use of the word "petition" in the Act, and points out that under Rule 5 of the rules all proceedings under the Act shall be commenced by filing a petition to which shall be attached a certificate of the marriage. He relies further upon the single decision to which I have referred, which is that of Bennett J. of the Allahabad High Court in Smurthwaite v. Smurthwaite AIR 1935 All. 719. The learned Judge held that court-fee should be paid as upon an application to the High Court. He did not, however, issue notice to the Government Advocate, and the matter was heard ex parte.

Fiscal Acts must be construed strictly and in favour of the subject. It is, in my judgment, not possible to apply Article 20 of Schedule II. Articles in the Court-fees Act cannot be applied by analogy. The article in question in terms relates only to petitions under the Indian Divorce Act, and can have no application except to petitions under that Act. Though certain provisions of the Indian Divorce Act may have been made applicable to proceedings under the Indian and Colonial Divorce Jurisdiction Act, that in itself cannot convert the petition into a petition under the Indian Divorce Act. True, the proceedings shall be regulated by the Indian Divorce Act and the rules made thereunder, but Article 20 of Schedule II, Court-fees Act, is surely not a rule under the Indian Divorce Act. As Bennett J. has rightly pointed out, relief under the Indian and Colonial Divorce Jurisdiction Act is granted only upon grounds which would be applicable in England. I am quite clear that Schedule II, Article 20 cannot be applied, and the previous procedure in this Court has been wrong.

Coming now to Article 17(vi) of Schedule II, that applies only to suits. The question, therefore, is whether the proceeding in question is a suit, or is merely an application. I have no hesitation in holding that it is a suit. It is true that the proceedings are initiated by petition. That, however, means nothing. Under the Indian Divorce Act, the proceedings are also initiated by petition, see Section 10. "Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved, etc., etc.," yet the Act right through makes it clear that the proceedings are by suit. For example, Section 6 refers to "all suits and proceedings in causes and matters matrimonial." Section 15 refers to "any suit instituted for dissolution of marriage." Section 36 speaks of "any suit under this Act whether it be instituted by a husband or by a wife, etc., etc."

It is quite true that the word "suit" is not to be found in the Indian and Colonial Divorce Jurisdiction Acts, but Section 1(1) of the Act of 1926 in express terms confers jurisdiction on the High Court to make a decree for dissolution of a marriage and as incidental thereto to make certain orders. The use of the word "decree" clearly implies that the proceedings are really by way of suit, though initiated by petition. We get a definition of "decree" in Section 2(2), Civil P.C., as

the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit etc.

The learned Taxing Officer has referred to a decision of a previous Taxing Judge of this Court in second Appeal No. 569 of 1919 on 20th June 1919, wherein the learned Judge held that in a suit for restitution of conjugal rights Article 17, Clause (vi) of Schedule 2 is the article applicable. As the stamp reporter has pointed out, such a suit is in a way the inverse of a suit for dissolution of marriage. The practice has always been to treat these proceedings for dissolution of marriage as suits. The present proceeding has been numbered as "Matrimonial Suit No. 4 of 1945," and the learned Taxing Officer starts by saying that "a suit has been brought by a wife for dissolution of marriage under the Indian and Colonial Divorce Jurisdiction Act." It may be noticed also that though proceedings under the Indian Divorce Act are by the provisions of the Act itself, suits, yet in framing Article 20 of Schedule II the word "petition" was used. There is, therefore, as I have said, nothing in the use of the word "petition."

Having regard to all the circumstances I have no hesitation in holding that we are dealing with what is in substance a suit, and not a mere application. It follows, therefore, that the petitioner is wrong in affixing court-fee of Rs. 3-12-0 only. The proper article is Article 17(vi) of Schedule II, for it is a suit for which no provision has been made elsewhere in the Court-fees Act and in which it is not possible to estimate the subject-matter in dispute at a money value. I answer the reference accordingly. The petitioner is allowed two weeks to pay the deficit court-fee.