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Yaqub Masih Vs. Christina Masih and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1941All93
AppellantYaqub Masih
RespondentChristina Masih and anr.
Excerpt:
.....on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible..........at the present time, and there can be no doubt that the divorce court in england would now allow a wife costs from her husband to enable her to defend herself upon the charge of adultery, unless there were special reasons to the contrary. that is the principle which should be followed in this court. the english rule has been enforced for the last seventy years although since the married women's property act was passed in 1887, the property of a wife does not pass to her husband upon marriage. the bombay and the madras high courts do not accept the principle laid down in provy v. proby ('80) 5 cal. 357. i may refer to the cases in mayhew v. mayhew ('95) 19 bom. 293 and naall v. natall ('86) 19 mad. 12. a learned judge of the calcutta high court himself doubted the correctness of the.....
Judgment:
ORDER

Allsop, J.

1. This is an application by a wife who is respondent to a petition for a decree for dissolution of marriage. She claims that her husband should deposit Rs. 300 to cover her costs and expenses. Learned Counsel for the petitioner has raised the point that a wife in India is not entitled to claim her costs from a husband who institutes proceedings against her for dissolution of marriage. He relies upon the ruling of the Calcutta High Court in Mayhew v. Mayhew ('95) 19 Bom. 293. The learned Judges in that case went back to the principles upon which the ecclesiastical Court had based its view that a wife's costs should be paid by her husband and stated that the basis of the principle was that a wife's property passed absolutely into the hands of her husband upon marriage. The learned Judges said that a wife's property did not so pass under the provisions of the Succession Act and there, fore the principle should not apply. The matter may have been open to some doubt in the year 1879 when that decision was pronounced, but this Court is bound under the provisions of Section 7, Divorce Act, to proceed upon the principles which are applied by the Courts in England at the present time, and there can be no doubt that the Divorce Court in England would now allow a wife costs from her husband to enable her to defend herself upon the charge of adultery, unless there were special reasons to the contrary. That is the principle which should be followed in this Court. The English rule has been enforced for the last seventy years although since the Married Women's Property Act was passed in 1887, the property of a wife does not pass to her husband upon marriage. The Bombay and the Madras High Courts do not accept the principle laid down in Provy v. Proby ('80) 5 Cal. 357. I may refer to the cases in Mayhew v. Mayhew ('95) 19 Bom. 293 and Naall v. Natall ('86) 19 Mad. 12. A learned Judge of the Calcutta High Court himself doubted the correctness of the decision in Provy v. Proby ('80) 5 Cal. 357 in Young v. Young ('96) Cal. 916n. I have no doubt that the applicant is entitled to reasonable costs from her husband.

2. Learned Counsel for the husband has argued that his client is a pauper and to compel him to pay costs weald be tantamount to refusing him the relief which he seeks. It appears, however, that the petitioner has been able to pay his own costs of this petition and to engage counsel. It seems to me, therefore, that he should pay the reasonable costs of his wife. Learned Counsel urges that an adulterous wife should not be able to escape a decree for dissolution of marriage merely by insisting upon the payment of costs which her husband cannot meet. On the other hand, we are not sure at this stage that the respondent has been guilty of adultery. It is surely wrong that a wife should be exposed to a charge of adultery and run the risk of being deprived of the support of her husband without being able to place her case fairly before the Court. If the husband seeks relief, it is just that he should enable his wife to defend herself when she has no means to support her own case. The claim is for Rs. 800, but though, according to the rules of this Court, counsel's fee alone would be taxed at Rs. 200 for the first day still the parties are obviously in very poor circumstances and it is impossible to pass an order for the payment of a large sum. I direct that the applicant shall be paid by the petitioner a sum of Rs. 50 to enable her to defend herself on the charges. The money shall be paid on or before 29th August 1940. The case may be put up on 30th August 1940. (The case was then put up before his Lordship and the following judgment was delivered.)

3. A husband who filed a petition in order to obtain a decree for dissolution of marriage was directed to pay a sum of Rs. 50 to meet his wife's costs in defending herself. It is urged on his behalf that he has absolutely no means and that he cannot deposit the money. The question which arises is whether the petition should be allowed to proceed or should be adjourned till the money is paid into Court. Learned Counsel for the husband has referred me to the case in Thomson v. Thomson ('87) 14 Cal. 580. That was a case in which a learned Judge said that he thought that it would be unreasonable to adjourn the hearing of the petition on the ground that the husband had not paid in the wife's costs, if it was shown that the husband had no means to enable him to do so, but, although this opinion was expressed, no order was passed in pursuance of it because the matter was referred to an officer of the Court for an enquiry whether the allegation' that the husband had no means was true or not. On the other side, I have been referred to the case in Keane v. Keane (1873) 3 P & D 52. There it was stated that it was the practice of the Ecclesiastical Court not to fix a date for the hearing of a matrimonial petition until the husband had paid in the costs which he was directed to pay on behalf of the wife. It seems to me that the petitioner in the case before me should be able to pay in a not very large sum of Rs. 50, and I think it would be unjust to the wife to deprive her of the power of defending here self against allegations of adultery. I, therefore, direct that the case will stand out till the costs are paid.


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