Mrs. Leelie Kuriakose vs T.N. Kuriakose

Rajamannar, C.J.—This is an application taken out by the respondent in O. S. A. No. 66 of 1958 pending in this court. The appeal is

against the decree passed in O. M. S. No. 9 of 1957, allowing the petition filed by the petitioner herein for judicial separation from her husband,

the respondent. The present application is for the sanction of a reasonable amount to be paid to the petitioner either in a lump sum or in installments

by the respondent to enable her to defend the appeal and other interlocutory applications and for an order that the compliance of the same may be

made a condition for the respondent-appellant prosecuting the appeal and connected proceeding. In the affidavit filed in support of this application

we find the following statements of the legal position. In paragraph 2, the applicant says :

His Lordship Mr. Justice Balakrishna Iyer has laid down the law in Appln. No, 1457 of 1957 (Mad) that whatever the origin of the rule may have

been it is now well established that a husband is bound to put the wife in funds that should enable her, to fairly prosecute or fairly defend a

matrimonial action. This has been approved by a Bench of this Hon''ble Court.

The following further statements are also to be found in the affidavit:

Decisions in England which arc attracted by Section 7 of the Divorce Act lay down the rule that the law always requires the husband to provide

his wife with'' the ''sinews of war'' to defend herself and it is a matter of ''high policy and high propriety"" that the husband should pay the wife the

cost of defending a proceeding against her in the Divorce Court and that the wife is entitled to defend herself at the expense of the husband

irrespective of the result.. .

I am advised that it is a practice in England not to allow the husband to prosecute his case unless sufficient funds are paid to the wife and this

practice may be adopted in this ease.

There is no provision as such in the Divorce Act or in any of the rules framed under the Act conferring a right on the wife who is a party to the

proceedings under the Act to obtain any advance funds to prosecute any suit or other proceeding. Section 7 provides :

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.

Mr. Rajagopalachariar, the learned counsel for the petitioner, contended that it was the settled practice in England to grant relief such as has been

prayed for in this case to the wife, that is to say, that the wife should be granted moneys to defray the expenses of an appeal filed by the husband

against the decree for divorce or judicial separation passed by the trial court. In the affidavit filed by the petitioner to which we have referred earlier

on, in this judgment, it is stated that Mr. Justice Balakrishna Aiyar had laid down the law on the point in Appln. No. 1457 of 1957 (Mad).

That was an application made in the matrimonial suit when it was pending in the trial court, and the Division Bench of this court which confirmed

the order passed by Mr. Justice Balakrishna Aiyar, granting a sum of Rs. 1000 to the petitioner for the costs of the suit, was also confined to the

expenses of the suit. Learned counsel for the petitioner was unable to cite any decision of the English Courts or of the Indian courts or any passage

from well known text books on Divorce in which it has been laid down that a wife is entitled to be granted in advance moneys to defray the

expenses of conducting the appeal tiled either by herself or by her husband.

Mr. Govind Swaminathan, appearing for the respondent, drew our attention to the decision of a Bench of this court to which one of was a party

in Mrs. Barbara Goorgina Debnam Vs. Mr. Fredrick Cecil Burnie Debnam, . That was a case where an application was made by the wife for a

direction to the husband to pay her a a sum of Rs. 350 as counsel''s fee and the amount required for paying the printed papers to enable her to

conduct the appeal which had been filed by the husband against a decree nisi for dissolution of the marriage. There was also an alternative prayer

for security for the costs of the appeal. It was held that the wife was not entitled to an order directing the respondent to pay her mor eys for the

conduct of the appeal. An order for security for the costs was made, but, we are not concerned with that part of the judgment as, before us, there

is no such application.

It was observed in the course of the judgment that no authority had been brought to the notice of the Bench for an application of the rule relating to

a suit to an appeal either by the wife or by the husband. The rationale of the rule for making the husband supply the wife with funds to conduct a

suit for dissolution of the marriage was discussed and it was pointed out that the rule was based on two principles, namely, the doctrine of common

law agency of necessity; and secondly, public policy in relation to the protection of the married status.

Mr. Rajagopalachariar did not attempt to convince us ''that this decision of the Division Bench, which is binding on us, was wrong. He sought to

distinguish it on the ground that it related to a decree nisi for dissolution of the marriage whereas in this case the decree is only for judicial

separation. But it appears to us that there is no foundation for this distinction. It is well established that even after the decree for judicial separation,

the wife cannot pledge her husband''s credit in the same way as she cannot after a decree for divorce (see Laity on Divorce, 14th Edn. p. 304).

Petitioner''s learned counsel referred us to the well known dictum of Cozens-Hardy M. R. in Kemp-Welch v. Kemp Welch and Crymes, 1910

Pr. 233, that if the Divorce Court treats a wife in some respects worse than a husband, it undoubtedly treats a husband in a very important matter

worse than a wife, inasmuch as it always requires a husband to provide his wife with the sinews of war to defend herself. This observation was

made in an application by the wife for payment of the costs of the trial court. It may now be taken to be well settled that there is a practice in

England of ordering the husband to pay the wife''s costs for defending a divorce proceeding. This practice appears to have come down from the

olden days of Ecclesiastical jurisdiction and has continued after the foundation of the Divorce Court. But so far as we are aware, no such rule

obtains in respect of an appeal.

Mr. Rajagopalachariar cited a passage from Rayden on Divorce 6th Edn. which runs thus :

Although, if a wife obtains a decree and her husband appeals, she is entitled to defend herself, it does not follow that he must pay her the costs of

the appeal as a matter of course."" This statement of the law in the 6th Edn. is different from the statement contained in the earlier editions of the

book. In the 4th Edn. the corresponding statement of the law was as follows :

If a wife obtains a decree and her husband appeals, she is entitled to defend herself and ho must pay her costs of the appeal even if he succeeds.

In Kara V. Kara and Holman, 1948 2 All ER 16, it was pointed out that this statement of the law is not accurate. But this passage, in any event

has no bearing on the question now before us. It relates to the costs of the appeal and not to costs payable in advance. There appears to have

been an impression that even after the disposal of an appeal in which the wife is unsuccessful she should get the costs of the appeal. That

impression has been corrected by the court of appeal in the case above cited, 1948 2 All EB 16. The passage which is more appropriate to the

question now before us is found in Rayden on Divorce, 6th Edn., at page 514 :

A wife who defends or prosecutes an appeal to the Court of Appeal unlike a wife who defends or prosecutes proceedings in Divorce Division

cannot, merely because she is the wife, and, in the absence of special grounds, require her husband to give security for her costs.

It is, therefore, clear to us that the rule that obtains to a matrimonial suit does not apply to an appeal against the decree in such a suit. When a wife

is not entitled as of right even to an order for security for costs of the appeal in the absence of special grounds, it follows that she is certainly not

entitled as of right to obtain an order for payment of moneys in advance to defray her expenses for the conduct of the appeal. As we said before,

no authority has been cited to us by Mr. Rajagopalachariar to support the petitioner''s claim.

Following the decision of the Division Bench of this court in 1949 1 Mad LT 550: AIR 1949 Mad 880, and as we do not find any special

grounds in this case, we hold that the petitioner is Hot entitled to the order prayed for.

This application is dismissed. No order as to costs.