1. (April 17, 1916).---This is an application by Beatrice Alice De Ste Croix, asking that this Court should make an order that the children of the marriage between herself and her husband should remain within the jurisdiction of this Court until her appeal is disposed of. It is a matter of painful nature, as so many applications in divorce cases are, and this case is peculiarly painful, because it is that of a woman who had been married for a number of years and who has been a mother for a considerable time and who is struggling for the right of her continued access to her two daughters.
2. The principle upon which an application such as this ought to be considered was laid down in the case of Symington v. Symington (1875) L.R. 2 H. L. Sc. & D. 415 at p. 420 which was cited to us, the passage to which I desire to refer being at page 420: 'it should be the duty of the Court to look to the interest of the children and carefully to weigh the comparative advantages and disadvantages of giving the custody of all or any of them to the one parent or to the other.' I am at a loss to conceive how any general Rule upon such a subject can be laid down.
3. Now, in this case the facts are that the applicant was the respondent to a petition for divorce. During the course of the hearing, she through her learned Counsel stated that she was not in a position to deny the fact that adultery had been committed by her. But she set up other defences to the effect that her husband had conduced to the adultery she had committed, and that he had also condoned the adultery. A decree nisi was made by the learned Judge who heard the case, having decided against the defences set up by the respondent. The daughters in question are respectively twenty and ten years old, and the elder daughter will be twenty-one this year in July, and it is in evidence before us that she is engaged to be married and she is herself desirous of going to England and intends returning to India by December of this year. The husband has sworn an affidavit in which he said that even if this unfortunate matter had not occurred and if he and his wife had been still living together as man and wife, he would have thought it right to send home his other daughter who, as I have said, was ten years old, in order that she might be put to school. What he proposes to do is to send the daughters to Jersey, where he has property and where he has some sisters, and that the younger girl should be put to a school which is called Jersey Ladies' School.
4. Now, under those circumstances, can this Court possibly say that the course which the husband proposes to take is an unreasonable one. Speaking for myself, I do not think it is. I think, it is often to the advantage of an English girl, ten years old, that ah 9 should leave this country, at all events for sometime, for the sake of health and perhaps also for the sake of education: and, one must remember that the person who proposes so to deal with these girls is the father who has certain well-known rights and duties which were referred to in the case which I have already mentioned, as follows: 'The father's right to the guardianship of his child is high and sacred. Our law holds it in much reverence and it should not be taken from him without gross misconduct on his own part and danger of injury to the health and morals of the children.' Now, in this case, having regard to the finding of the learned Judge, there is nothing to be said against the morals or the conduct of the father: nor is there anything in the course which he proposes to take which is calculated to injure the morals or the health of the children. In my opinion, it would be wrong for us to interfere with the discretion which the law vests in the father, who is the proper and legitimate guardian of the children under the circumstances of this case. Therefore, in my opinion, that part of the application must be refused.
5. With regard to the other part, as to the costs, we think this is a matter of considerable general importance, and, therefore we think it right to take time to consider our judgment.
6. I agree.
7. I agree.
8. In this case the husband brought a suit for divorce, and the learned Judge granted him a decree nisi, on the ground of the respondent's adultery: subsequently an application was made by her to this Court applying first of all that her husband should be restrained from sending the children of the marriage out of the jurisdiction of this Court. That matter was disposed of on the hearing of the application. It was further prayed that the petitioner in the divorce suit should be ordered to make provision for the costs of her appeal to this Court, and we reserved our judgment upon that point.
9. The principle upon which the husband has been directed to make provision for his wife's costs in these cases has been laid down in Fobertson v. Sobertson (1881) 6 P. D. 119 at p. 122 : 51 L.J.P. 5 : 45 L.T. 237 : 29 W.R. 880, and the passage to which I wish to refer is at page 122. I am now reading from the judgment of Sir George Jessel, where he says: 'Now on principle it is plain that the whole foundation of the Rule depends on the liability of the husband to pay the necessary and fair costs of the wife's defence. I take it that that Rule is founded on the old English Law, which gave the whole personal property of the wife to the husband, and gave him also the income of her real estate; so that in the absence of a settlement (which, as we all know, is a comparatively modern introduction) she was absolutely penniless, and, therefore, the Ecclesiastical Court not only provided for the costs of her defence, but also gave her alimony pendente lits so as to provide for her maintenance.' There is another passage at page 123, where the learned Master of the Rolls says: 'I have given what I believe to be the true view of the origin of the liability of the husband; but I am not oblivious to the nobler view, if I may so express it, held in the House of Lords, that no gentleman, indeed, no man of right feeling would wish that his wife should not have the means of fairly investigating and fairly defending herself against so odious a charge as that of adultery. Really, if there had not been, as I do believe there is, the common and pecuniary reason for fixing the husband with the costs, I think that that reason ought to be sufficient to all right-minded men.' That principle was endorsed by Lord Justice Brett and also by Lord Justice Cotton at pages 124 and 125. In a subsequent case, Otway v. Otway (1888) 13 P.D. 141 at p. 155 : 57 L.J. P. 81 : 59 L.T. 153, there is passage which is material at page 155, and it is to be noticed that this is a judgment of Lord Justice Cotton who was a party to the decision in Robertson v. Robertson (1881) 6 P.D. 119 at p. 122 : 51 L.J.P. 5 : 45 L.T. 237 : 29 W.R. 880. He says: Then as regards the appeal I doubted very much whether we ought to allow any costs of the wife on the appeal, we having decided against her on the ground that she had already been found guilty of adultery before any of the proceedings in the appeal were taken. But I think the case we have been referred to, of Holt v. Holt (1858) 28 L.J. Mat. 12, settles that question. If after she had been found guilty of adultery she had herself actively brought the matter before this Court, then I should have thought no provision ought to be made for her costs; but here she was only defending herself against a proceeding taken by the husband, and that being so, I think that, following what is laid down in Holt v. Holt (1858) 28 L.J. Mat. 12, it was reasonable for her to instruct a Solicitor and Counsel to appear. Therefore, although her adultery prevented her from pledging the credit of her husband, and prevented her getting any alimony or allowance from the husband, yet, in my opinion, it does not prevent her from requiring her husband to provide for the costs reasonably incurred in bringing her case against his appeal before the Court. Therefore, I think we ought to allow her her costs of this appeal, as well as the costs of the proceedings in the Divorce Court.' There is one other passage which I think is material to notice, and it is as follows: There is one point I said I should mention, namely, with reference to the recent legislation as to the position of married women. If this marriage had been after the Act of 1882, we should have had to consider how far that old Rule would apply where a woman was put, after that Act, in the position of a feme sole, retaining all her property and being in a position to sue and be sued.' That observation would, of course, affect the principle which was referred to by Sir George Jessel in Robertson v. Robertson (1881) 6 P. D. 119 at p. 122 : 51 L.J. P. 5 : 45 L.T. 237 : 29 W. R. 880, but it would rot affect the second principle to which he refers at page 123 where he says: but I am not oblivious to the nobler view......held in House of Lords, that no gentleman, indeed, no man of right feeling would wish that his wife should not have the means of fairly investigating and fairly defending herself against so odious a charge as that of adultery.'
10. Now, there are two passages in Halsbury's Laws of England, 16th Volume, to which 1 think right to refer, because each of them deals with the question of practice. At page 561 and in Clause 1139 there is this to be found: 'If a woman obtains a decree, and her husband appeals, she is entitled to defend herself, and he must provide her costs of the appeal. The fact that she has committed adultery does not necessarily affect the matter; but if she, being herself found guilty, actively brings the matter before the Court, he need not make such provision.' Then after that is cited Otway v. Otway (1888) 13 P.D. 141 at p. 155 : 57 L.J.P. 81 : 59 L.T. 153. But there is a note to be found on the top of the notes at page 562 in which reference is made to an unreported case, Campbell v. Campbell, 'in which the House of Lords ordered the sum of 150 to be paid to the wife to enable her to carry on the appeal;' and it is also noted that a similar result happened in the case of Yelverton v. Longworth or Yelverton (1864) not reported.' It is not quite clear whether in either case the wife was the appellant, but as I read the words it looks to me as if she was the appellant---we have not had the opportunity of getting further information as to the record in either of the cases, and, therefore, I am entirely depending on the notes.
11. The other passage is at page 604 (that is, Article 1235), and it is this: 'Where the wife, having obtained an order in the Court below, is the respondent to an appeal, the practice is to allow her her costs of the appeal even if it is successful, and the husband may be ordered to pay into Court or give security for her costs of the appeal, the hearing being stayed until he does so; but this practice has no application where the wife is the appellant.'
12. As far as I know those are the only authorities or references to which our attention was drawn during the argument of this case. In my judgment we ought not to make an order that the husband should make provision for the costs of the wife's appeal in this case, having regard to the facts which are set out in the petition of the lady, in the various affidavits which are now before the Court. I need not refer to these facts in detail, but it is sufficient to mention that during the course of the case it was stated by the lady's learned Counsel in effect that she was not in a position to deny the adultery. Her case was based upon an allegation that her husband's conduct conduced to the adultery and that he in fact condoned it. This case has been held to be unfounded by the learned Judge. As I have said before, I do not wish to enter into the details which are set out in the affidavits; but, in my opinion, the facts are not such as to justify us in making an order that the petitioner in the divorce suit should make provision for his wife's costs of the appeal. I wish to make it clear that I do not decide that this Court has no jurisdiction to make an order on the application of the wife who is an appellant to this Court. On the contrary I think this Court has jurisdiction to make such an order in a proper case if the Court thinks right so to do upon the facts of the case, even where the wife has had an order nisi made against her in the first Court, and where she herself is the appellant. I desire to confine my decision in this case simply and solely to the facts of this case, and to say that in this case the wife is not entitled to the order for which she asks.
13. The petitioner prays that the respondent may be ordered to pay to the applicant's Solicitors such sum as may be fixed by the Registrar towards the costs of her appeal. The husband filed a suit for divorce alleging adultery; and the usual provision was made for the wife's costs. Though adultery was originally denied, it was and has been before us admitted and a decree was made for the dissolution. The petitioner wishes to appeal on the grounds of condonation, inducement to adultery and collusion which have disentitled plaintiff to the relief notwithstanding the adultery found. On the statement of facts made to us at the hearing there does not appear to be any substance in any of these grounds. It is unnecessary to decide the question of our power to make the order asked for. It is sufficient to say that I do not think that this is a case in which we should make such an order. I would, therefore, refuse the application.
14. This is an application by a wife who has appealed against a decree nisi made by Mr. Justice Greaves on the 11th April 1916, in a suit for dissolution of marriage instituted by her husband on the ground of her adultery. The petitioner did not deny the charge of adultery, but pleaded condonation, connivance, and collusion. These pleas were not established to the satisfaction of the Trial Judge. The decree nisi was consequently made, and the custody of the children of the marriage, two daughters, was given to the husband. By a consent order made pendente lite, the petitioner is entitled to be paid a sum of Rs. 340 monthly by her husband by way of alimony, and also a specified sum towards her costs of the proceeding; the decree further directs the husband to pay her costs of the suit and trial. In the present petition, she prays, first, that her husband may be ordered to keep the children within the jurisdiction of the Court until the disposal of her appeal with a view to enable her to have access to them and not to send them away to Jersey as he intends to do, and secondly, that her husband may be directed to pay to her Solicitors such sum as may be fixed by the Court for and towards the costs of her appeal.
15. The Court has already refused her first prayer on the ground that the paramount consideration in a matter of this description is the benefit of the children and that in the present case, it was not for their welfare that they should continue to reside here longer: Symington v. Symington (1875) L.R. 2 H. L. Sc. & D. 415 at p. 420., D'Alton v. D'Alton (1878) 4 P. D. 87 : 47 L.J. P. 59. Philip v. Philip (1872) 41 L.J. Mat. 89 : 27 L.T. 592. In fact, the Court, though not precluded from making an order giving the divorced wife access to the children, is most reluctant to make such an order and never places the indulgence of the parents above the welfare of the children: Handley v. Handley (1891) P. 124 : 63 L.T. 535 : 39 W.R. 97 : 55 J.P. 293 : Kelly v. Kelly 5 B.L.E. 71.
16. The Court, however, took time to consider its decision upon the second prayer in the application. Reliance has been placed in support of that prayer on the principle that as a wife should not be precluded by want of means from establishing her case, either as a petitioner or respondent, the husband should make a deposit or give security for the estimated costs that might be incurred by her. One reason usually assigned for this Rule is that the law assumes that on her marriage all the property of the woman presumably passes to her husband, so that, for her protection, it is necessary that not only should she not be made liable to pay costs but that she should litigate at the expense of her husband: Wells v. Wells and Hudson (1864) 3 Sw. & Tr. 542 : 33 L.J. M. 151 : 10 L.T. 696; 10 Jur. (N.S.) 755. Clarke v. Clarke (1865) 4 Sw. & Tr. 111. Miller v. Miller (1869) 2 P. 13 : 39 L.J. P. 4 : 21 L.T. 471 : 18 W. R. 152. Milne v. Milne (1871) 2 P. 202 : 40 L.J. P. 13. Robertson v. Robertson (1881) 6 P.D. 119 at p. 122 : 51 L.J.P. 5 : 45 L.T. 237 : 29 W. R. 880. Smith v. Smith (1882) 7 P. 84 : 51 L.J. P. 31. Otway v. Otway (1888) 13 P. D. 141 at p. 155 : 57 L.J. P. 81 : 59 L.T. 153. Earnshaw v. Earnshaw (1896) P. 160 : 65 L.J. P. 89 : 74 L.T. 560 : 60 J. P. 377. A second reason was assigned by Pigot, J., in Young v. Young 23 C. 916n : 12 Ind. Dec. (N.S.) 608.: 'inasmuch as the wife, in discharge of her duties as mistress of the household, is wholly occupied, it is impossible for her to acquire any property and......that consideration might fairly be used to influence the Court in determining whether in cases such as these, the wife might not be entitled to obtain the necessary costs from the husband, apart from any question of right to her property.' A third reason sometimes assigned in justification of the Rule is that as a wife can bind her husband for necessaries, her costs, incurred in a litigation about her matrimonial status, may be considered a necessity: Jones v. Jones (1872) L.R. 2 P. & D. 333 : 20 W. R. 320. Brown v. Ackroyd (1856) 5 El. & Bl. 819 : 25 L.J. Q.B. 193 : 2 Jur. (N.S.) 203 : 4 W. R. 229 : 26 L.T. (o. s.) 215 : 103 R. R. 762 : 119 E. R. 689. Whatever reasons historical or equitable may be discoverable in support of the rule, it has been generally followed in a long line of cases in this country, though sometimes not without reluctance: Fowie v. Fowle 4 C. 260 : 3 C. L.R. 484 : 2 Shome L.R. 143 : 2 Ind. Dec. (N.S.) 166. Proby v. Proby 5 C. 357 : 5 Ind. Jur. 248 : 5 C. L.R. 1 : 2 Ind. Dec. (N.S.) 838. Georgucopulas v. Georgucopulas 29 C. 619. Thomson v. Thomson 14 C. 580 : 1 Ind. Dec. (N.S.) 384. Boyle v. Boyle 7 C.W.N. 565 : 30 C. 631.; Mayhew v. Mayhew 19 B. 293 : 10 Ind. Dec. (N.S.) 198. Payne and Co. v. Pirojshah 12 Ind. Cas. 554: 13 Bom. L.R. 920. Natal v. Natal 9 M. 12 : 3 Ind. Dec. (N.S.) 405.
17. It is plain, however, that the doctrine in question is an encroachment upon the ordinary Rule that costs follow the event : and speaking for myself, I am of opinion that every attempt to extend its operation should be cautiously scrutinised. In the case before us, the charge of adultery is not denied by the wife; but she seeks to test, by way of appeal, the correctness of the decision of the Trial Judge on the special grounds she assigned with a view to resist a decree for dissolution of marriage notwithstanding her misconduct. I can discover no reasonable ground on which her claim to be financed by her husband in the prosecution of her appeal in such circumstances can be justified. I can very well understand that if a wife obtains a decree, and her husband appeals, she may be held entitled to defend herself and to require her husband to provide her costs of the appeal: Holt v. Holt (1858) 28 L.J. Mat. 12; Earnshaw v. Earnshaw (1896) P. 160 : 65 L.J. P. 89 : 74 L.T. 560 : 60 J. P. 377. The fact that she has committed adultery may not, in those circumstances, necessarily affect the matter. But if she, being herself found guilty, actively brings the matter before the Court, I cannot see how her husband may be justly called upon by her, as a matter of right, to provide for her costs. The view I take is in accord with that adopted by Cotton, L.J., in Otway v. Otway (1888) 13 P. D. 141 at p. 155 : 57 L.J. P. 81 : 59 L.T. 153.: 'if after she had been found guilty of adultery she had herself actively brought the matter before this Court, then I should have thought no provision ought to be made for her costs.' See also Earnshaw v. Earnshaw (1896) P. 160 : 65 L.J. P. 89 : 74 L.T. 560 : 60 J. P. 377. I am not unmindful that the House of Lords has sometimes made an order on the husband to pay a round sum to his wife to enable her to carry on her case before the House of Lords: Robinson v. Robinson (1859 unreported); Keats v. Keats (1859 unreported), Campbell v. Campbell (unreported), Yelverton v. Yelverton (1864 unreported). These cases are mentioned in note (e) to Article 1139 in Volume XVI of the Laws of England edited by Lord Halsbury. The circumstances under which the orders were made are, however, not stated nor are the reasons available. These cases consequently merely show that circumstances are conceivable, in which the Court may, in its discretion, make an order in favour of the wife; but they do not lay down an inflexible rule, and I cannot treat them as authorities which oblige me to hold that the application of the present petitioner should be granted. In my opinion, her second prayer must, like the first, be refused.