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Mrs. Barbara Goorgina Debnam Vs. Mr. Fredrick Cecil Burnie Debnam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1949)1MLJ550
AppellantMrs. Barbara Goorgina Debnam
RespondentMr. Fredrick Cecil Burnie Debnam
Cases Referred(Vide King v. King
Excerpt:
- - king (1943) probate 91 at 95.) in a case like the present in which the learned judge has passed a decree nisi for dissolution of the marriage, neither ground can exist......papers to enable her to conduct the appeal, or in the alternative, to direct the appellant to furnish security for costs of the appeal. there was also a prayer that the appellant may be directed to pay her the taxed costs of the suit, but since the application was taken out, the appellant has paid this amount. the respondent was the wife of the appellant.2. it is clear from the authorities which have been reviewed in a recent judgment of yahya ali, j., in mrs. yvonme gwendoline marie lewis v. aloysiu lewis application no. 3141 of 1948. since reported in : (1949)1mlj547 that in a matrimonial suit the wife will be entitled to an order against her husband for payment of the costs of the suit in advance to enable her to conduct the suit. but no authority has been brought to our notice.....
Judgment:

P.V. Rajamannar, C.J.

1. This is an application by the respondent in O.S.A. No. 85 of 1948 for a direction from this Court to the appellant to pay her a sum of Rs. 350 as counsel's fee and the amount required for buying printed papers to enable her to conduct the appeal, or in the alternative, to direct the appellant to furnish security for costs of the appeal. There was also a prayer that the appellant may be directed to pay her the taxed costs of the suit, but since the application was taken out, the appellant has paid this amount. The respondent was the wife of the appellant.

2. It is clear from the authorities which have been reviewed in a recent judgment of Yahya Ali, J., in Mrs. Yvonme Gwendoline Marie Lewis v. Aloysiu Lewis Application No. 3141 of 1948. Since reported in : (1949)1MLJ547 that in a matrimonial suit the wife will be entitled to an order against her husband for payment of the costs of the suit in advance to enable her to conduct the suit. But no authority has been brought to our notice for an application of this rule to appeals either by the wife or by the husband. The practice however seems to be for the wife to pray for an order to direct the husband to furnish security for her costs of the appeal and it has been assumed by English Courts that security will not be ordered as a matter of course merely because a wife has no means of her own, but the Court has jurisdiction to make an order and will do so in appropriate cases. See Lately on Divorce, XIII Edn., page 768.

3. The rationale of the rule for making the husband supply the wife with funds to conduct a suit for dissolution of the marriage appears to be twofold : firstly, the doctrine of common law agency of necessity and secondly, public policy in relation to the protection of the married status. (Vide King v. King (1943) Probate 91 at 95.) In a case like the present in which the learned Judge has passed a decree nisi for dissolution of the marriage, neither ground can exist. Obviously after the decree, the wife could not pledge her husband's credit and it cannot be said that in this case the wife is seeking to protect the married status. She evidently wants to support the decree directing a dissolution of the marriage. Even on the facts we are not inclined to hold that there are special equities in favour of the wife for making the husband deposit the costs of the appeal in advance. The husband has been directed to pay her alimony and she admits that in January, 1948, a sum of Rs. 1,200 was paid to her by the husband, out of which he borrowed from her Rs. 200. No doubt she claims that this sum was given to her absolutely as a gift, but the husband disputes this. Having regard to these facts and to the general principle adverted to above, we do not think this is a case in which we should direct the appellant to furnish the respondent with funds to conduct the appeal.

4. We are however of the opinion that the appellant must be directed to furnish security for the costs of the appeal. The costs of the lower Court were paid by him only after the present application was filed by the respondent. The respondent is a lady with two children and it is likely that she will not be easily able to recover the amount of the costs of the appeal in case she is successful. We therefore direct the appellant to furnish security in the sum of Rs. 400 for the costs of the appeal within four weeks from to-day to the satisfaction of the Seeond Assistant Registrar of this Court. In default, the appeal will be posted for orders under Order 41, Rule 10(2) of the Civil Procedure Code.


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