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Cites 4 docs
Section 56 in The Indian Divorce Act, 1869
The Indian Divorce Act, 1869
Section 37 in The Indian Divorce Act, 1869
Section 7 in The Indian Divorce Act, 1869

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Madras High Court
Iswarayya vs Swarnam Iswarayya on 30 April, 1929
Equivalent citations: (1930) 58 MLJ 54
Author: Jackson

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.