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Mrs. Priti Parihar Vs. Flt. Lt. Kailash Singh Parihar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 159 of 1973
Judge
Reported inAIR1975Raj52; 1974(7)WLN639
ActsHindu Marriage Act, 1955 - Sections 24; Divorce Act, 1869 - Sections 7
AppellantMrs. Priti Parihar
RespondentFlt. Lt. Kailash Singh Parihar
Appellant Advocate M.C. Bhoot, Adv.
Respondent Advocate V.S. Dave, Adv.
DispositionAppeal allowed
Cases ReferredFrebout v. Frebout and Penny
Excerpt:
.....and natural justice. the broad principles of judicial conscience would regulate decisions in such disputes and the court would be well iustified in refusing to finance a wife who is apparently harassing a husband. we would not like to express any opinion on the length of the cross-examination in this appeal. the learned district judge will be at liberty to assess each item of the costs claimed and if he comes to the conclusion that it was unnecessary, he will be well justified in refusing such an expense. 100/-for costs in this court as well as before the learned single judge by way of an additional expense......of the husband and the wife have to be taken into account (see alien v. alien. (1894) p 134). the wife's costs when taxed de die in diem are generally paid to the wife or her attorney out of the fund in court; but if the court has reasons to suspect that the suit has been instituted mala fide it will order the same to be retained according to english practice. (see rogers v. rogers, (1865) 4 s & t 82). the following costs will not, as a rule be taxed against the husband:--'(i) of an application by the wife for further time to answer to the petition:(ii) of a motion for the husband to attend and be examined on the wife's petition for alimony, after he has answered on oath thereto if the result of his examination is to establish the truth of his answer;(iii) of an unsuccessful opposition.....
Judgment:

B.P. Beri, C.J.

1. This is an appeal by a wife, who is defending a suit for judicial separation under the Hindu Marriage Act (hereinafter called 'the Act') in the Court of the District Judge. Jodhpur, directed against the judgment of the learned single Judge dated July 4, 1973, who summarily dismissed her appeal, wherein she had claimed additional expenses from her husband under Section 24 of the Act.

2. In S. B. Civil Misc. Appeal No. 49/72 this Court had allowed a sum of Rs. 500/- to the wife for meeting her expenses of the litigation by its order dated 6-4-1972. The wife urged before the trial Court by an application dated 4-4-1973 that in order to defend herself she had to go up to the High Court twice. Apart from this expenditure, several applications were moved by her before the trial Court, besides the petitioner having amended his petition she had to amend her written statement and she had thus incurred expenditure to the extent of Rs. 765/-. which sum did not include the professional fees of the lawyers for the trial Court, The learned District Judge observed, reading the order dated 6-4-1972 passed by this Court, that it 'conclusively determined the right of the non-petitioner to claim expenses to contest and defend this matrimonial case ..... and the expenses now claimed by her are unreasonable. There should be some limit to the budget of expenses in such cases.' Dissatisfied the wife preferred an appeal and the learned single Judge found that no case was made out for increasing the amount of expenses in trial Court awarded by this Court on 6-4-1972 and the appeal was summarily dismissed and the wife is before us in special appeal.

3. We issued notice to the learned counsel for the husband as to why this appeal be not admitted and after hearing the learned counsel for the parties at some length the learned counsel agreed that arguments advanced by them may be considered as their submissions in respect of the final hearing of this appeal. Therefore, we decide the appeal on merits.

4. The first question is, whether this Court had conclusively fixed the expenses by its order dated 6-4-1972 The order says.--

'Out of this amount of Rs. 500/- a sum of Rs. 400/- will be adjusted towards the expenses of litigation in the trial Court and Rs. 100/- towards the expenses of this appeal. It is however, further made clear that this amount of Rs. 400/-will not include the expenses which the present appellant may have to incur in paying reasonable witness expenses in the lower Court.'

5. Would it be right to say that this conclusively determined expenses regardless of the course of litigation The answer is in the negative. It is not always possible for any Court to anticipate the situations in the course of a litigation and it should be read to mean that if the litigation proceeded normally this amount was assessed to be necessary expense or the probable costs. As would appear from para. 7 of the application dated 4-4-1973 before the learned Ditrict Judge that the wife had filed (i) an unsuccessful appeal No. 88/72; (ii) a successful revision application No. 312/72; (iii) some 30 applications besides incurring other expenses. All this could not be anticipated and it is erroneous, therefore, to say that the question of necessary expenses stood finally concluded by the order of this Court dated 6-4-1972.

6. Under the Act a defending wife is entitled to 'the necessary expenses of the proceeding' in terms of Section 24 of the Act, which reads,--

'24. Maintenance pendente lite and expenses of proceedings; Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be. has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.'

This Court had awarded a sum of Rs. 500/-by way of expenses of the proceeding. It rests settled that the wife in this case is entitled to the expenses in the terms of Section 24 of the Act. The only question which now survives for consideration is, whether the appellant fwife) has been able to make out a case for additional expense. The learned single Judge has observed that she has not succeeded in doing so. We are unable to agree and our reasons are that the wife feeling aggrieved by some order came up to this Court and her revision application was allowed. Her grievance was judicially held to be justified. Could it be anticipated on 6-4-1972 Did it not entail expenses Was it not necessary The answer to all these questions are obvious. It was an unanticipated expense, judicially justified and must have been incurred. We have merely illustrated our reasoning by reference to one item. We express no opinion regarding the other items of the expenses, for we propose to leave it to the learned District Judge to decide in the light of the observations in this judgment. In our opinion, therefore, a case was made out for adding to the expenses necessary for the proceeding fixed on 6-4-1972. The expression employed in Section 24 of the Act is 'the necessary expenses of the proceeding'. In order to allow such expenses the Court will first determine whether as a question of fact some expense was incurred. Then will arise the question whether such an expense was necessary. The second question is not always easy to answer but it will be regulated by the circumstances of each case. A litigant often acts on the advice of the Advocate. If the Advocate advises a certain step or Droceeding often enough the litigant helplessly follows such an advice and incurs the expense. Unless that advice by the Advocate lacked care and caution or was merely intended to delay the proceeding or to harass the husband, it will be difficult to call it unnecessary. Whether the expense was necessarv or not is sometimes judged by the result. It is a helpful factor but it could not be said to be always decisive. Likewise a husband should not be saddled with mounting expenses because a cantankerous wife adopts such an attitude. It is quite conceivable that a husband of poor means could be well high ruined in a given case by a litigious wife.

7. Some of the decided cases under the Indian Divorce Act, 1869 might be helpful. Under that Act a wife is ordinarily, unless she has means of her own. entitled to have her costs upto and of and incidental to the hearing taxed de die in diem. (See Natal v. Natal, (1886) ILR 9 Mad 12; Garlinge v. Garlinge, AIR 1922 All 504). A wife, who is possessed of sufficient separate property of her own, should be left to Pay her own costs (See Thomson v. Thomson, (1887) ILR 14 Cal 580). The relative incomes of the husband and the wife have to be taken into account (See Alien v. Alien. (1894) P 134). The wife's costs when taxed de die in diem are generally paid to the wife or her attorney out of the fund in Court; but if the Court has reasons to suspect that the suit has been instituted mala fide it will order the same to be retained according to English practice. (See Rogers v. Rogers, (1865) 4 S & T 82). The following costs will not, as a rule be taxed against the husband:--

'(i) of an application by the wife for further time to answer to the petition:

(ii) of a motion for the husband to attend and be examined on the wife's petition for alimony, after he has answered on oath thereto if the result of his examination is to establish the truth of his answer;

(iii) of an unsuccessful opposition by the wife to a motion of further particulars of the charges in her petition for dissolution of marriage:

(iv) on appearing on a motion if such appearance is unnecessary, though she may have received notice from the other side.'

(See Harding v. Harding and Lance (1862) 2 S & T 549; Hebworth v. Hepworth, (1861) 30 LJ P & M 253: Frebout v. Frebout and Penny, (1861) 30 LJ P & M 214).

8. We might hasten to add that Section 7 of the Indian Divorce Act, 1869 provides that subiect to the provisions of the said Act the principles and rules of matrimonial causes in England may be followed. These observations, therefore however apt for the Indian Divorce Act are no more than guides under the Hindu Marriage Act and have no binding force as such. Under the Hindu Marriage Act the awarding of costs appears to be a judicial discretion, the exercise whereof has to be regulated by well known principles of sound reason, good conscience and natural justice. The conduct of parties often reflects their motives and can always be taken into account for granting expense or not. Neither it is easy nor de--sirable to lay down rigid rules for exercising such a discretion. The broad principles of judicial conscience would regulate decisions in such disputes and the Court would be well iustified in refusing to finance a wife who is apparently harassing a husband.

9. Learned counsel for the respondent urged that it was a peculiar case where the cross-examination of the petitioner is continuing for the last 27 days and meaningless applications are being endlessly moved. We would not like to express any opinion on the length of the cross-examination in this appeal. The learned District Judge will be at liberty to assess each item of the costs claimed and if he comes to the conclusion that it was unnecessary, he will be well justified in refusing such an expense.

10. The learned counsel for the respondent also urged that the wife is possessed of sufficient means. We are not inclined to open this question in this appeal because the question whether the wife was entitled to expense or not stood settled on 6-4-1972.

11. There are no rules framed for regulating the expenses in matrimonial disputes. The learned District Judge may adopt the standard of costs fixed by the High Court Rules in analogous matters in assessing the quantum of costs.

12. The result is that the wife has made out a case for increase of the costs allowed on 6-4-1972. What that costs would be just shall be determined by the District Judge after examining each item by reference to the expenses claimed, their necessity and justifiability.

13. We allow this appeal, set aside the order of the learned Single Judge and remand the case to the learned District Judge, Jodhpur and fix a sum of Rs. 100/-for costs in this Court as well as before the learned single Judge by way of an additional expense. This enquiry shall not paralyse the progress of the parent petition.


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