Iswarayya vs Swarnam Iswarayya on 30 April, 1929

    Iswarayya vs Swarnam Iswarayya on 30/4/1929

JUDGMENT

   Jackson, J.

   1. This is an application under Section 56, Indian Divorce Act (IV of 1869),
for leave to appeal to His Majesty in Council from the order and decree of this
Court in Appeal No. 169 of 1927 fixing the alimony to be paid by petitioner to
respondent, his divorced wife, at Rs. 260 a month.

   2. The amount originally fixed by the District Judge was Rs. 120 and this was
confirmed on appeal. Then the respondent petitioned the District Judge for an
increase and he fixed the amount at Rs. 160 plus Rs. 150 for the children. This
Court found that nothing need be paid to the children who were no longer minors
under the Act, but increased the alimony of the mother to Rs. 260.

   3. The petitioner contends that there is no provision in the Act for
increasing the amount of alimony once it is fixed and this Court is not
justified in reading Section 37 as entitling the Court to make such orders as
regards maintenance as may from time to time be reasonable.

   4. He also contends that inasmuch as the respondent did not appeal against
the order of the District Judge fixing her alimony at Rs. 160 this Court in
raising the amount to Rs. 260 exceeded the power given to an Appellate Court
under Order 41, Rule 33, Civil Procedure Code. I consider that neither of these
points is so clear as to justify us in finding that this is not a fit case for
appeal; nor can they be said to be unsubstantial for they materially affect the
law of divorce and the law of procedure.

   5. But in giving leave to appeal I think it necessary to order that the
petitioner should pay the costs of the respondent in the proceedings before the
Privy Council. Under Section 7 of Act IV of 1869 this Court is bound to act and
give relief on principles and rules which conform to those obtaining in England
and I have no doubt that in a similar case arising in England Order 91, Part
VIII of the Annual Practice would be applied, and the wife would be given her
costs.

   6. In the circumstances we give leave to appeal on condition of petitioner
depositing Rs. 3,000 within three weeks of the re-opening of the Court next July
which sum may be drawn by respondent.

   Reilly, J.

   7. In C.M.P. No. 1935 of 1929 the husband prays for a certificate that this
is a fit case for appeal to His Majesty in Council under Section 56 of the
Indian Divorce Act. The two questions which the husband wishes to raise in
appeal, vis., (1) whether the amount of alimony which a husband has been ordered
to pay monthly under Section 37 of the Act can be raised by the Court when it
has once been fixed, and (2) whether Rule 33 of Order 41, Code of Civil
Procedure, gives power in special circumstances to make such an order as was
made in this case, are questions of general importance. But does that make it a
fit case for appeal under Section 56 of the Indian Divorce Act? Even if it were
enough to make the case a fit one under Section 109 (c), Code of Civil
Procedure, it would not necessarily be enough under Section 56 of the Indian
Divorce Act. Considering the nature of the cases which can be taken before His
Majesty in Council under Section 56 of the Act it would often be a very great
hardship if a wife could be subjected to such an appeal when it was clear that
she had no means sufficient to contest it, merely because it raised a question
of general importance. In this case it is alleged by the wife, and is not
disputed before us, that she cannot afford to appear before the Privy Council
and contest the proposed appeal. But, as suggested by Mr. Coelho, for the wife,
the Act provides machinery by the aid of which an appeal can be prosecuted
without injustice against a wife who has no means of her own to contest it.
Under Section 7 we are to act on principles and rules as nearly as may be
conformable to the principles and rules on which the Court for Divorce and
Matrimonial Causes in England acts. "Principles and rules" in that section
include in my opinion principles and rules of procedure. As a matter of
procedure in England the husband can be required to advance his wife the
expenses of contesting an appeal which he wishes to prosecute against: her. That
procedure, I think, we are entitled to adopt here before declaring that the case
is a fit one for appeal and so enabling the husband to prosecute his proposed
appeal before the Privy Council. In my opinion this would not be a fit case for
appeal within the meaning of Section 56 of the Act if the husband did not
advance to the wife the expenses of contesting the appeal; if he did so, it
would be a fit case. I would therefore require the husband to deposit in this
Court within three weeks after the Court re-opens after the long vacation Rs.
3,000 for the wife's expenses in contesting the appeal; if he makes the deposit
in time, I would declare the case a fit one for appeal to His Majesty in Council
and allow the wife to draw Rs. 3,000; if he fails to make the deposit, I would
dismiss the application.