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Piroja Ghadiali Vs. Pestonji Ghadiali - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberParsi Matrimonial Suit No. 27 of 1941
Judge
Reported in(1946)48BOMLR36
AppellantPiroja Ghadiali
RespondentPestonji Ghadiali
Excerpt:
evidence - cross-examination of me defendant by another, when allowed-matrimonial suit -wife's costs, whether payable by husband-parsi matrimonial suit-whether costs on original side scale can be attained-parsi marriage and divorce act (iii of 1936).;where the defences of a co-respondent or a co-defendant and the respondent or the defendant are identical, neither is entitled to cross-examine the other. it is only where the evidence of a co-defendant or a co-respondent is adverse to the defendant or the respondent that the defendant or, respondent has the right to cross-examine.;allen v. allen [1894] p. 248, referred to.;the general rule in matrimonial cases is that the wife gets her costs from the husband even where she is unsuccessful and irrespective of whether she is the plaintiff or..........were not proved, although there were strong suspicions against the husband. an application for the wife's costs to be paid by the husband was disallowed. 'the case however laid down no general rule. in baldwin raper v. baldwin raper and metz (1926) 42 t.l.r. 619 there was a petition by the husband for judicial separation on the ground of alleged cruelty by the wife. there was also a supplemental petition by him praying for divorce on the ground of the wife's adultery. there was a cross-petition by the wife for dissolution of her marriage on the ground of unnatural practices by the husband. the husband's suit for judicial separation on the ground of cruelty was dismissed. the wife's suit according to the judge was based on shameful chargesi which were the inventions of a vile mind......
Judgment:

N.J. Wadia, J.

1. After the crass-examination of the defendant by Mr. Manecksha and re-examination by Mr Banaji was closed, Mr. Forbes asked for leave to cross-examine the defendant. The Indian Evidence Act gives the right of cross-examination only to the adverse party. In the present case the defendant and the co-defendant have both denied the adultery, and, so far as the written statements put in by them go, their defences are identical. There is nothing in the evidence given by the defendant which can in any way be said to be adverse to the co-defendant. The general rule is that a defendant may cross-examine his co-defendant who gives evidence, or any of his co-defendant's witnesses, if his co-defendant's interest is hostile to his own: Halsbury, 2nd edn., Vol. XIII, p. 75, and also Vol. X, pp. 736-737. It is only where the evidence of a co-defendant or a co-respondent is adverse to 'the defendant or the respondent that the defendant or respondent can claim the right to cross-examine. There would be very obvious disadvantages if in this case, where the contentions of the defendant and the co-defendant are identical, the co-defendant were allowed to cross-examine the defendant, who for all practical purposes may be regarded as the co-defendant's witness. The disadvantage becomes all the more serious because the request to cross-examine is made after the real adverse party, the plaintiff has finished his cross-examination. The co-defendant, if allowed to cross-examine the defendant, will be able to practically nullify the effect of the plaintiff's cross-examination and to get in additional evidence to fill up any gaps which may have been disclosed by the plaintiff's cross-examination, and to do so by putting leading questions which would not have been permissible in examination-in-chief.

2. Mr. Forbes relied in support of his contention on the decision in Allen v. Allen [1894] P. 248 in which it was held that the evidence of one party cannot be received as evidence against another party in the same litigation unless the latter party has had an opportunity of testing it by cross-examination; and that in a divorce suit, the evidence of the respondent is not admissible against a co-respondent if the Judge refuses to allow the co-respondent to cross-examine upon it. In that case the respondent had made certain statements which conflicted with the account which the co-respondent had given of the same matter, and it was with regard to these statements that permission to cross-examine was asked for. The question, therefore, in that case was whether in a case in which the attitude of the respondent was hostile to the co-respondent the co-respondent was entitled to cross-examine the respondent, and it was held that unless he was allowed to do so, the respondent's evidence could not be admitted against the co-respondent. There is nothing in this ruling which necessarily conflicts with the principle that as between a respondent and a co-respondent the right to cross-examine would arise only if either is hostile to the other. This is how the decision in this case has been interpreted by several authorities: vide Phipson on Evidence, 7th edn., p. 458, where the learned author says:

The same right (i.e. the right to cross-examine) exists between respondent and corespondent in Divorce cases, provided either is hostile to the other, for if friendly, e.g, where both deny the adultery, each can only be examined as the other's witness and not cross-examined.

The same view has been taken in the passage in Halsbury, Vol. XIII, p. 757, to which I have referred. As in this case, the interests of the defendant and the co-defendant are not hostile, the co-defendant cannot be allowed to cross-examine the defendant.

3. THE trial went on. The Judge summed up the case to the delegates, who on April 23, 1942, found that the defendant had committed adultery with the co-defendant, that the plaintiff was not guilty of cruelty to the defendant, and that the defendant was not entitled to a decree for judicial separation against the plaintiff. The Judge agreed with the above findings, and decreed divorce, dismissed the claim for judicial separation, and left the question of costs to be decided at a later date. On the question of costs, arguments were heard and the following judgment was delivered on July 16, 1942.

N.J. Wadia, J.

4. The question of costs in this suit was held over for arguments. I have heard counsel for all three parties. The question has caused me some difficulty. The plaintiff who had filed the suit against his wife for divorce on 'the ground of her adultery with the co-defendant has succeeded, The delegates have found that adultery by the wife with the co-defendant has been proved. The wife had made a counterclaim against her husband for judicial separation on the ground of cruelty. Cruelty has been held not to have been proved and the counter-claim has been dismissed.

5. Mr. Maoecksha for the plaintiff asks that the defendant should be ordered to bear her own costs both in the suit and in the counter-claim. He says that though the plaintiff would .be entitled to ask for his costs in the counter-claim he does not press for them. Mr. Banaji for the defendant contends that the general rule in matrimonial cases is that the wife even though unsuccessful is entitled to her costs from the husband and that therefore the defendant in the present case should get her costs both in the suit and in the counter-claim from the husband.

6. Mr. Manecksha has also claimed that the costs awarded to him against the co-defendant in the suit should be on the Original Side scale.

7. The question of costs in a matrimonial action is one entirely in the discretion of the Court and in a fit case the Court has power to refuse to allow a wife her costs: Halssham edition, Vol. X, p. 761. The general rule in matrimonial cases is that he given her costs from the husband even where she is unsuccessful five of whether she was the plaintiff or the defendant. The rule originated in England at a time when the whole of a wife's property vested on her marriage in her husband and she was therefore left without any means of defending herself against any charges however unjust which the husband might choose to bring against her unless the husband himself was made to pay her costs. The stringency of that rule has undoubtedly been considerably modified by the change in social conditions since then. But although it may not be necessary to enforce the rule as stringently 'now as it used to be in the pasty it is still necessary for the Courts to see that the wife prosecuting or defending a matrimonial action is put in sufficient funds to be able to prosecute her case or to defend herself properly. Unless she can be assured of this it would be impossible for her to get any attorney to take up her case and the result might be that she would be unable to defend herself however unjust the charges brought against her might be.

8. Mr. Manecksha has laid much stress on the decision in Durnjord v. Baker [1924] 2 K.B. 587 and H.S. Wright & Webb v. Annandlde [1930] 2 K.B. 8 in both of which it was held that a solicitor acting for a wife cannot in a common law action recover his costs from the husband, if when those costs were incurred the wife had been guilty of adultery, although the fact was unknown to the solicitor. In the latter case it was also held that this rule applied equally whether the wife was proceeding against the husband or was defending a suit brought against her by the husband. Both however were cases of actions filed by the wife's solicitor against .the husband to recover at common law his costs from the husband on the ground that the wife was. an agent of necessity.; and it was held that the answer to such ,a claim was that a guilty wife has no authority to pledge her husband's credit for anything, whether food, clothes or the services of a solicitor; and, as was said in Atkynes v. Pearce (p. 767):

The fact of her living in a state of adultery divests her of all authority which arises out of the matrimonial relation.

But these two cases did not lay down that in divorce Courts an unsuccessful or even a guilty wife would not be entitled to reasonable costs against her husband. In Durn-ford v. Baker [1924] 21 K.B. 587 Lord Justice Atkin said (p, 601);

Nothing we have said has any bearing on the rules of law and practice as to costs in the Divorce Division, The practice of that Division depends on the discretion of the Court, ' and it may be that the Judge, in exercise of that discretion, will give costs in relief of a wife who has been guilty of adultery.

9. The case of Thompson v. Thompson (1886) 57 L.T. 374 was also relied on. In that case the wife had brought a suit for divorce charging the husband with cruelty and adultery; the charges of cruelty were withdrawn and those of adultery were not proved, although there were strong suspicions against the husband. An application for the wife's costs to be paid by the husband was disallowed. 'The case however laid down no general rule. In Baldwin Raper v. Baldwin Raper and Metz (1926) 42 T.L.R. 619 there was a petition by the husband for judicial separation on the ground of alleged cruelty by the wife. There was also a supplemental petition by him praying for divorce on the ground of the wife's adultery. There was a cross-petition by the wife for dissolution of her marriage on the ground of unnatural practices by the husband. The husband's suit for judicial separation on the ground of cruelty was dismissed. The wife's suit according to the Judge was based on shameful chargesi which were the inventions of a vile mind. Dealing with the question of costs, Mr. Justice Hill said (p. 620):

If she can be made to pay the costs of it, she ought to be made to pay.' Is there any reason why I should not exercise my discretion in favour of the husband as regards his costs of the wife's suit? I can see none, unless it be that the duty to protect the interest of the wife's solicitor forbids me to award to the husband costs against the wife in every case in which security has been ordered and the wife has not property which can be reached in any form of execution by the solicitor. That is not the rule. The fact that security for the wife's costs has been ordered cannot deprive the Court of its discretion to give costs or. to refuse them to the wife, or to give costs against the wife.

10. The husband was given his costs of the wife's petition and the wife her costs in 'the husband's petition for judicial separation. The decision in this case again rested entirely on the special facts of the case. The husband according to the judgment was of' very small means, so small that he would have found it very difficult to pay all the wife's costs if ordered to do so. The wife on the other hand had an* income of 553 a year under the trusts of a will and a further income of 286 a year under a settlement on her marriage with her first husband; and as I have already remarked the allegations made by her against her husband in the suit were found to be ' shameful charges which were the inventions of a vile mind '. In Whitmore v. Whitmore (1866) 1 P. & D. 96 a wife obtained a decree nisi for the dissolution of her marriage with costs against her husband; but before that decree was made absolute, the Queen's Proctor intervened and filed affidavits proving that she had committed adultery lst the suit was pending, and the decree was therefore rescinded and the petition dismissed. It was held that the wife, having obtained an order for alimony pendente lite, was entitled to an attachment against the respondent for non-payment of the arrears of alimony up to the date when she was found guilty of adultery. Here again the facts were peculiar. In Somerville v. Samerville and Webb (1867) 36 L.J.N. S. P. & M. 87 in a husband's suit for divorce on the ground of adultery by the wife, the adultery was held proved; nevertheless, although during the trial no application under Rule 159 for the wife's costs had been made, the Judge on an application made three months after the date of the decree nisi gave the wife her costs. In Robertson v. Robertson (1881) L.R. 6 P.D. 119 in a suit by the husband for divorce on the ground of adultery the adultery was held proved arid the trial Judge ordered that the costs incurred by the wife should be paid by the husband but not exceeding the amount paid into Court or secured by the petitioner for that purpose. There was an appeal by the wife on the question whether her costs payable by the husband were not to exceed the amount for which he had given security. It was held by the Appeal Court that in a divorce suit the costs of the wife payable by the husband are not limited to the amount paid into Court or secured by the husband for that purpose; and the order made by the trial Judge was varied Latey in his book on Divorce, 12th edn., p. 270, says: ' The Court may order costs to the full amount to be paid even to a guilty wife' and refers in support of his opinion to the decision of the Appeal Court in Robertson v, Robertson, In Rattigan on Divorce, 2nd edn., p. 634, the learned author says:

As a general rule, the husband will be ordered to pay his wife's costs, even though she has either failed in a suit instituted by her against him,, or has failed to prove her countercharges, or has been proved guilty of the charges preferred against her by her husband. And the husband's liability extends not merely to the estimated costs for which he has already given security, but to all costs actually incurred by the wife.

The decision in Robertson v, Robertson is referred to amongst others in support of that opinion. It is therefore not correct to say, as Mr. Manecksha has contended, that the normal practice in divorce cases is that an unsuccessful and guilty wife is not entitled to costs. The question, as has been repeatedly pointed out, is one entirely in the discretion of the Court, and the more usual order in such cases is that the wife should be given her necessary and fair costs of defence from the husband, and in spite of the fact that conditions have changed considerably in recent times as regards the wife's right to property that rule has still been followed, and for good reasons, especially in cases where the wife has no separate property or where her separate property is too small to enable her to defend herself-properly against any charges that may be brought against her by the husband. In the present case it has been shown that the defendant has only a small income amounting to about Rs. 40 to Rs. 50 a month and it is obvious that that income could not possibly be regarded as sufficient to enable her to provide from her own pocket for her defence in the suit. I think therefore that the defendant is entitled to her costs from the husband in the suit. But I see no reason for awarding her her costs in her counter-claim against her husband. She must bear those costs herself.

11. The next question is whether the costs to be awarded to the wife in the suit and those which have been awarded to the plaintiff against the co-defendant should be on the scab laid down in the Parsi Marriage and Divorce Act or on the Original Side scale. The rules framed by the High Court under the Parsi Marriage and Divorce Act provide for a special scale of fees which alone are to be awarded in cases tried under that Act unless the Judge otherwise specially directs. It is now becoming almost a practice in this Court in every suit which is of any importance or in which the hearing is prolonged for-parties to ask that costs should be allowed on the Original Side scale. It seems to me that to allow this to be done an every case merely because a large number of witnesses has been examined or the case has lasted a long time would be to defeat the object with which a special scale of fees was deliberately provided for suits under this Act. That object was to prevent costs in matrimonial suits becoming so prohibitive as to practically deprive the poorer class of litigants from seeking remedy under the Act. As the hearing of the case has lasted for sixteen days, the costs, if allowed on the Original Side scale, would be extremely heavy. I am not prepared to allow them. I think it would be fairer in cases of this kind to award a lump sum by way of costs. I award the plaintiff Rs. 5,000 as costs from the co-defendant and the defendant Rs. 3,000 as per costs in the suit from the plaintiff.


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