UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW OF DIYOECE APPLICABLE TO CHRISTIANS IN INDIA (The Indian Divorce Act 1869) BY H. A. B. RATTIGAN. B.A. OXON, /( OF LINCOLN'S INN, BABBISTEE-AT-LAW, AND AN ADVOCATE OF THE HIGH COURT OF THE NOETH-WEST PEOVINCE8, AND OF THE CHIEF COURT OF THE PUNJAB. " It is the foremost duty of this Court, in dispensing the remedy of divorce, to uphold the institution of marriage. The possibility of freedom begets the desire to be set free, and the great evil of a marriage dissolved, that it loosens the bonds of so many others. The powers of this Court will be turned to good account if, while meting out justice to the parties, such order should be taken in the matter as to stay and quench this desire and repress this evil " (Sir J. P. WILDE, Sidney v. Sidney, 34 L. J., P. & M. 122). WILDY & SONS, LINCOLN'S INN ABCHWAY, LONDON, Safo $ubltel)W$. THE "PIONEEK" PBESS, ALLAHABAD. 1897. -T WILDT AND SONS, LINCOLN'S INN AECHWAY, LONDON. t TO MY FATHER THIS SMALL WORK, IN THE PREPARATION OF WHICH HE HAS TAKEN SUCH KINDLY INTEREST, IS AS A SLIGHT TOKEN OF AFFECTIONATE ADMIRATION AND RESPECT, PREFACE. SINCE the publication, in 1870, of Mr. Macrae's work on the Indian Divorce Act, 1869, no treatise dealing with that subject has appeared in the Indian press, although during this period a number of important decisions, both of the English Courts and the Indian High Courts, have eluci- dated difficult questions of Divorce Law applicable to Christians. In the present edition I have endeavoured to incorporate all these, as well as such of the earlier rulings of the Courts as have appeared to me to lay down general principles, or to be likely to prove useful to the legal practitioner. The principles of the Indian Act being to a large extent identical with those of the English Statutes, I have also considered it advisable to give under each section of the Act the corresponding sections of the Matrimonial vi PEEFACE. Acts of England. In this respect the present edition will (I trust) prove of some use not merely to the legal practitioner in India, but also, though necessarily to a less extent, to the legal profession in England, and not perhaps without value to the student of comparative legislation. H. A. B. E. October, 1897. CONTENTS. INDIAN DIVOEOE ACT, PAGE ACT No. IV. OF 1869 - - - - 1322 APPENDIX (A) Marriage - - 323329 (B) Identity of Parties - 330, 331 (C) Proof of Adultery - - - 332336 (D) Res JudicatureEstoppel - - 337341 (E) Notes on Pleadings and Practice - - 342361 (F) Costs - 362383 (G) Eules and Kegulations of the English Court of Divorce - - - 384412 Forms 413426 INDEX - - - - - - - 427460 TABLE OF CASES. A. PAGE A.v. A 129, 297 _ t ..B 129 f.e. M. v. M 250 Abbott v. Abbott 33, 281, 354 Adams v. Adams 378, 381 Adley v. Adley 79, 86, 88, 333 Administrator- General of Madras v. Ananduchari 5 Afford v. Afford 369 Agar-Ellis, In re 270, 272 Aldridge, Ex parte 58, 66 v. Aldridge 130, 357 Alexander v. Alexander. .57, 86, 176, 299 v. Jones 21 Alexandre r. Alexandre 120 Ali Kadar v. Gobind Dass. .345, 355, 358 Allen v. Allen ... .74, 103, 205, 273, 279, 296, 333, 334, 355, 360, 364, 370, 374, 375 Allumuddy v. Braham 159 Ambler v. Ambler 343 Amin Chund v. Collector of Sho- lapur 287,290 Anderson v. Anderson 212 Andrews v. Ross 139 Anicbini v. Anicbini 95 Anon 15,39, 132, 191 Anquez v. Anquez 180 Ansdall v. Ansdall 265 Anthony v. Antbony 51, 269 Appleyard v. Appleyard 347 Armitage v. Armitage 294 Ashv. Ash 373 Asirun Bibi v. Shariss Mundle , . . . 287 Astley v. Astley 334 Astrope r. Astrope 64 Atchley v. Sprigg 335 Att.- Gen. v. Parnther 141 Aubourg v . Aubourg 46, 51 Augustiu f . Augustin 45 Austin v. Austin 345 Avila v. Avila 225 B. B. v. B... 135 _ v . C 132, 295 v. L 132 Babbage v. Babbage 294 Bacon v. Bacon.. 86, 88, 245, 246, 359, 375 Badcock v. Badcock 378 Badham v. Badham 102 Bagot v. Bagot 72 Bai Tanku v. Shiva Toya 91 Baily v. Baily 368 Baker v. Baker 284, 379 Bancroft v. Bancroft 153, 299 Banister v. Banister 299, 350 Baptist v. Baptist 46 Barber v. Barber 71 Barlee v. Barlee 177 Barnes v. Barnes 87, 94, 106, 117, 273, 278 Baroda Churn v. Govind Proshad . . 31 Bartlett v. Bartlett 352 f.c. Rice v. Rice 146 Basing r. Basing 63 Bates v. Bates 367 Baylis v. Baylis 105 Beanlands v. Beanlands ... .74, 89, 107 Beardman v. Beardman 48 Beauclerk v. Beauclerk 47, 101, 183 Beavan v. Beavan . .38, 63, 66, 211, 366 Beeby v. Beeby 79 Bell v. Bell 69, 74, 93, 107, 192 Beni Ram v. Ram Lall 286 Bennett v. Bennett . . . 201 X TABLE OF CASES. Bent v. Bent 195, 219, 235, 239. 277, 280 Benyon v. Benyon 248, 252, 253, 256, 259, 264 Bernstein v. Bernstein 77, 78, 82, 83, 189, 190, 309, 378, 381 Besant v. Wood 156, 181, 357 Best v. Best 155 Bethell, In re 4 Bethune v. Bethune 47 Bikker v. Bikker 193 Billingay v. Billingay 196, 197 Binney v. Binney 100 Birch v. Birch 47, 51, 228, 237 Bird v. Bird 201, 363 Bishop v. Bishop 237, 238, 252 Blackball v. Blackball . . . .380, 381, 382 Blackman v. Brider 139 Blackmore v. Mills 201 Bland v. Bland 54, 338 Blandford v. Blandford 23, 80, 270 Boardman v. Boardman 296, 361 Boddington v. Boddington 378 Boddy v. Boddy 114, 115, 336 Bombay, &c. Navigation Co. v. S.S. Zuari 31 Bonaparte v. Bonaparte 24 Bond v. Taylor 306 Bonsor v. Bonsor 211, 239 Boreham v. Boreham 92, 102, 153 Borham v. Borham 345, 351 Bostock v. Bostock 53, 80 Bosvile v. Att.-Gen 335 v. Bosvile 257, 258 Boucher v. Boucher 83, 96 Boulting v. Boulting 74, 77, 99 Boulton v. Boulton 122 Bowen v. Bowen 116, 383 Boynton v. Boynton 248, 259, 276 Bradley v. Bradley 215, 216 Bradshaw v. Bradshaw 59 Bray v. Bray 43, 44 Bremner v. Bremner . .206, 378, 379, 381 Briggs v. Briggs 6, 15 Brinckley v. Att.-Gen 4 Broadhead v. Broadhead 363, 364 Brocas v. Brocas 38, 113 Bromfield v. Bromfleld 92, 151 Brook v. Brook . .17, 135, 137, 138, 298, 323, 346 PAGE Brown v. Brown.. 48, 75, 104, 105, 129, 157, 211, 294, 357 Bruce's Case 14 Buckmaster r. Buckmaster 62 Bullock r. Bullock 265 Burroughs v. Burroughs . .84, 178, 184, 185, 272, 359, 369 Burslem v. Burslem 295 Burt v. Burt 24 Burton v. Sturgeon 247 Butler v. Butler . .86, 89, 120, 338, 370, 371, 376 C. Callwell r. Call well 194, 197 Campbell v. Campbell 299 Capstick v. Capstick 211 Carew v. Carew 117 Cargill r. Cargill 63, 169 Carryer v. Carryer 70 Carstairs v. Carstairs. .245, 374, 377, 382 Carter v. Carter 213, 219 Cartlidge v. Cartlidge..272, 348, 350, 352 Castleden v. Castleden 134 Catterall v. Sweetman 326 Cavendish v. Cavendish 256 Chaldecott v. Chaldecott 370 Chalmers v. Chalmers 252 Chambers v. Chambers 269 Charles v. Charles 214, 215 Charter r. Charter 348 Chetwynd i\ Chetwynd . .254, 260, 270, 278, 369 Chichester/.c. Mure i\ Mure . . 142, 143, 306 Chinta Monee v. Pearee Monee .... 30 Christian v. Christian 87 Chudley v. Chudley 60 Churchward v. Churchward 87 Clark v. Clark. . . .156, 181, 196, 212, 357 Clarke v. Clarke 94, 145, 366 Clements v. Clements 116, 117 Clifford v. Clifford 237, 252 Clout v. Clout 277, 280 Coates v. Coates 126, 189 Cock v. Cock 62, 156, 181 Cocksedge v. Cocksedge 180 Codrington v. Codrington 274, 378 TABLE OF CASES. XI PAGE Coleman v. Coleman 97 Collett v. Collett 48, 335 Collins v. Collins 41, 81, 98 Comyn v. Comyn 193 Conradi v. Conradi..98, 338, 371, 379, 381 Constable v. Constable 211 Cooke v. Cooke. . . .78, 224, 277, 370, 374 v. Fuller 172 Coombs i\ Coombs 211 Cooper v. Cooper 82, 135, 367 v. Crane 146 - v. Wane 84, 91 Corbett r. Corbett 220, 229 Cornish v. Cornish 69 Corrance v. Corrauce 250, 265 Cotton v. Cotton 348 Coulthurst v. Coulthurst 66 Cousen v. Cousen 47, 51 Coward, In re 169 Cowing v. Cowing 193 Cox v. Cox 88, 105, 348, 357 Crabbr. Crabb 62, 157 Craignish, In re 13 Crampton v. Crampton . . . .204, 207, 208 Crawford r. Crawford .... 117, 118, 382 Crisp v. Crisp 265 Crump r. Crump 201 Cubley v. Cubley 272 Culley v. Culley 82, 121, 126 Cunnington v. Cunuington .... 104, 106 Cuno v. Cuno 131, 135 Curling v. Curling 70, 108 Curtis v. Curtis 45, 48, 50, 53, 78, 80, 82, 353 D. D. v. A v. M 130 127 62, 65, 103, 181 D'Aguilar v. D'Aguilar 48, 79 Dale v. Dale 194 Dallas v. Dallas 65 D'Alton i: D' Alton 275, 276, 278 Darbishire v. Darbishire 192, 193 D'Arcy v. D'Arcy 53 Daryai Bibi v. Badri Prasad 31 Das Merces v. Cones 137 PAGE Davidson v. Davidson 333 Davies v. Davies 66, 238, 258 Davis, In re 161 v.Davis 272,278 Dawes v . Crayke 160 Deane v . Deane 283 De Bretton v. De Bretton 113, 293 De Lossy v. De Lossy 237 Dempster v. Dempster 54, 78 De Niceville v. De Niceville 347 Dent v. Dent 80, 81, 92, 151, 351 Dera Kabai i\ Jefferson 286 Dera Sayagam v. Naiyagam ... .99, 101 Dering v. Dering 104 Desmarest v. Desmarest 353 Dharm Singh r. Dewa Singh 31 Dickens v. Dickens 368, 374, 375 Dickenson v. Dickenson 56 Dixon r. Dixon 367, 369 Dolphin v . Robins 15 D'Oyley v. D'Oyley 204 Drevon v. Drevon 14 Drew v. Drew 56, 64 Drinkwater v. Drinkwater 70 Drummondr.Drummond..86, 94, 121, 153 Drysdale v. Drysdale 110 Dunn v. Dunn 203, 204 Duplany v. Duplany 109, 151, 154, 351, 356 Durand v. Durand 22, 27 Durant v. Durant 44, 45, 79 Durham v. Durham 140 Dysart v. Dysart 48 E. Edwards v. Edwards . .63, 102, 234, 239 Eldred v. Eldred 257 Ellamr. Ellam 24, 295 Elliott, In re 172 Ellis i\ Ellis 79, 112, 201, 202, 203 Ellyatt v. Ellyatt 369 Elsley v. Elsley 348 Emery v. Emery 154 Empress v. Arshed AH 328 r. Kallu 328 v. Pitamber Singh 328 i: Subbarayan 328 Xll TABLE OF CASES. Evans v. Evans. . . .41, 72, 196, 197, 281, 370, 376, 379 Evered v. Evered 257 Ewens v. Tyterleigh 134 Ewin, In re 149 Ewing v. Wheatley 147 F. F. v. D 132, 133 _. P 133 Farmer v. Farmer 59, 61 Farrington r. Farrington 262 Faulkes v. Faulkes 66, 100 Fendall v. Goldsmid 123, 306 Fenton v. Livingstone 138, 323 Field v. Field 175, 374 Finlay v. Finlay 376 Finney v, Finney 37, 338 Firebrace v. Firebrace 8 Fisher v. Fisher 219, 225, 296 risk i\ Fisk 238 Fitzgerald v. Chapman 247 v. Fitzgerald ... .39, 59, 60, 114, 345 Fletcher v. Fletcher 210 Flower v. Flower ... .82, 115, 120, 156, 371, 372 Flowers v. Flowers 180 Foden v. Foden 201, 202 Ford v. Ford 295 Forman v. Forman 343 Forster r. Forster. .32, 94, 118, 153, 185, 195, 196, 198, 209, 381 Forsyth v. Forsyth 53, 265 Forth r. Forth 52, 163, 218 Foster v. Foster 344 Fowle v. Fowle .... 33, 55, 60, 219, 375 Fowler v. Fowler 115 Franks v. Franks 238 Frebout v. Frebout 368 Freegard f. Freegard 96, 185 Freke v. Lord Carberry 149 French -Brewster v. French-Brew- ster 63, 357 Frith v. Frith 331 Fry v. Fry 284 Fiyer, In re 194 Furlonger v. Furlonger 51 Furness c. Fumess.. . . 81 G. PAGE G. v. G 93, 130 v. M 131, 132 Gale v. Gale 44 Gandy v. Gandy 236, 237, 252 Garcia v. Garcia 61 Garstin v. Garstin 32 Gasper v. Gonsalvez 129, 187, 325 Gaston v. Gaston 355, 356 Gatehouse v. Gatehouse 60 Gaynor v. Gaynor 71, 210 George v. George 206 Gethin v. Gethin 86, 88 Gibbs v. Harding 180 Gibson v. Gibson 57 Gilham's Case 335 Gill v. GUI 69, 213, 265, 379 Gillis v. Gillis" 14 Gilpin v. Gilpin 74 Ginger v. Ginger 336 Gipps v. Gipps , 73, 74, 75, 78 Gladstone v. Gladstone . .117, 118, 256, 260, 370, 371, 376 Glennie v. Glennie 74, 296 Goad v. Goad 275, 276, 277 Gobardhan Das r. Jasadamoni Das.. 6 Goldney v. Goldney 346 Goldsmith v. Goldsmith 376 Gomez v. Gomez 115 Gooch i\ Gooch 83, 95, 153, 157, 181 Goode v. Goode 83, 95, 379, 381 Gooden v. Gooden 217 Goodheim t: Goodheim 206 Goodrich r. Goodrich 272, 274 Gopal Chunder r. Kurnodar 21 Gordon v. Gordon . . . 102, 109, 205, 334, 358, 363 Gower v. Gower 74, 107 Grafton r. Grafton 209 Grant v. Grant 38, 113, 249, 333 Graves v. Graves 57 Gray*. Gray 86, 121, 350 Green v. Green 54, 184, 185, 350 Greenwood v. Greenwood 238 Grieve r. Grieve 117 Grossi v. Grossi 92 Grosvenor r. Grosvenor 94, 95 Groves v. Groves 105 Gurbakhsh Singh c. Shama Singh. . 24 TABLE OF CASES. Xlll PAGE Gurdyal Singh v. Kajaof Faridkot.. 7 Qurney v. Gurney 335 Gyte v. Gyte 195 H. H. v. P 130, 133 Haigh v. Haigh 209, 223 Hakewell v. Hakewell 173, 206 Half en v. Boddington 114 Hall, Exparte 168, 171 v. Hall 37, 50, 79, 339, 371 Hamilton v. Hamilton 266 Hanbury r. Hanbury 39, 50, 231 Hancock v. Peatty 140, 141 , 284 Handley v. Handley 275, 280 Harding v. Harding 1 18, 368 Harford r. Morris 144 Har Nandan Sahai v. Behari Singh.. 31 Har Narain v. Bhagwant Kaur .... 32 Harris i: Harris.. 57, 63, 87, 209, 330, 331 Harrison v. Harrison 100, 133, 221, 222, 229 Harrod v. Harrod 141, 147 Harvie v. Farnie 8, 9, 15 Haswell i: Haswell ... .66, 93, 103, 107 Haviland v. Haviland 56, 211 Hawkins, In re 213, 223 v. Hawkins 105 Hay v. Gordon 303, 304 Hay ward v. Hay ward .... 183, 206, 208 Heal r. Heal 373 Hechler r. Hechler 380 Henty i: Henty 58, 61 Hepworth v. Hepworth . .274, 299, 366, 367, 368, 375 Heyes r. Heyes 53, 65 Hick r. Hick 94 Hicks v. Hicks 115, 211 Higgs t: Higgs 344 Hill v. Cooper 160, 169 v. Hill 209,357 Billiard i: Mitchell 135, 138 Hirabai v. Dhunjibhoy 204 Hobson, Ex parte 295 Hodges v. Hodges 78 Holloway v. Holloway 65 Holmes i\ Holmes 177 PAGE Holmes v. Simmons 325 Holt v. Holt 203, 205 Hood v. Hood 368 Hooper v. Hooper 37, 155 Hope v. Hope 184, 185, 258 Home v. Home 23, 248, 249, 259, 269, 349 Hough v. Hough 373 Houliston v. Smyth 154 Howarth v. Howarth 82, 117, 119 Howe v. Howe 378 Hudson v. Hudson 49 Hughes v. Hughes 358 Hulse v. Hulse. . . .82, 119, 121, 331, 380 Humphrey f.c., Williams v. Wil- liams 128, 138 Hunt v. Hunt 86, 156, 180, 195, 280 Hunter v. Hunter 70, 72, 115 Hutchinson v. Hutchinson 98 Hyde v. Hyde ... .5, 213, 219, 224, 276, 277, 279, 374 I. Insole, In re 160 Irwin v . Irwin 379 Izard v. Izard 193 J. Jack i\ Jack 9 Jackman v. Jackman 85, 360 Jadub Ram v. Ram Luchun 354 Jaffers v. Jaffers 71 Jardine v. Jardine 240 Jeffreys v. Jeffreys 103, 154 Jennings v. Jennings 212 Jessop v. Jessop 86, 118 Jewall v. Jewall 345 Jinkings v. Jinkings 67, 334 Johnson v . Johnson 259 v. Lander 160 Jolly v. Jolly 348 Jones v. Jones 69, 203, 371, 375 Jonnagadhu v. Thatiparthi 284 Jopp v . Wood 14 Joseph v. Joseph 96 Jowala v. Pirhbu . . . 290 XIV TABLE OF CASES. PAGE Judkins v. Judkins 236 Jump v. Jump 252, 257 K. Kanhya Lai v. Eadha Charan . . 124, 339 Kanwal Earn v. Bhawani Earn .... 284 Kastolino v. Eastonji 283 Kaye v. Kaye 369 Keane v. Keane 366 Keats v. Keats ... .78, 79, 195, 219, 233, 239, 336, 366 Keech v. Keech 56, 63 Kelly v. Kelly. . . .47, 202, 205, 218, 233, 277, 280, 297, 302, 333, 345, 363, 374 Kennedy v. Kennedy 67 Kenrick v. Kenrick 48 v. Wood 286 Kent v. Burgess 323 Keshar Lai v. Bai Parvati 177 Keyse v. Keyse 191 King v. Foxwell 14 v.King ....112, 116, 117,303,344, 350, 353 Kingsley, In re 172 Knight v. Knight 46 Knox v. Bushell 163 Koolur Khansama v. Jan Khansama 176 Kumal Chunder v. Surbessur 286 Kyte v. Kyte. .97, 120, 126, 189, 302, 329 L. Ladmore v. Ladmore 241 Lambe v. Smythe 21 Lander v. Lander 106, 234, 240 Langworthy v. Langworthy. . . .251, 280 Lapington v. Lapington..54, 158, 300, 351 Latham v. Latham. . . .112, 113, 197, 201 Lautour v. Lautour 94 Lawrence v. Lawrence . . '. . . .58, 61, 249 Leader r. Leader 71 Learmouth v. Learmouth 377, 378 Ledlie v. Ledlie . .269, 274, 329, 338, 349 Leeds v. Leeds 250 Leete v. Leete . . 346 PAGE Legard v. Bull 31 Lelim Tewarree v. Govindeer Gosain 21 Le Marchant v. Le Marchant 334 Le Mesurier v. Le Mesurier . . 7, 8, 9, 10 Lempriere v. Lempriere . . . 153, 154, 356 Le Sueur v. Le Sueur 15 Lewis v. Hayward 131 v. Lewis . .82, 114, 119, 121, 352 Lidstone v. Lidstone 344 Ling v. Ling 249, 278, 294 Ltnton v. Linton 223 Lisbey v. Lisbey 93, 98, 116, 338 Lister v. Lister 219, 229, 239 Lloyd v. Lloyd 86, 88 Lodge v. Lodge 55, 63, 357 Lolley's Case 8, 12 Long v. Long 194, 378 Lopez v. Lopez ..25, 110, 128, 135, 137, 184, 326 Lord v. Colvin 13, 14 Louis v. Louis 224 Lovedon v. Lovedon 333 Lovering v. Lovering 78 Lutwyche v. Lutwyche 350 Lyne v. Lyne 194, 361 M. M./. c.C.v.G 134, 374 v. D 135 v. M 356 Macarthur v. Macarthur 175 Macartney v. Macartney 295 Macdonald v. Macdonald 58, 65 MacKenzie v . MacKenzie 180 Macleod v. Macleod 276 Madan v. Madan 205, 206 Madge v. Adams 171 Maggs v. Maggs 99 Mahomed Shaffi v. Lai Din 22 Mallinson r. Mallinson 23, 270 Manning v. Manning 51, 52 Manton v. Manton 377 March v. March . .24, 40, 254, 261, 272, 294, 295, 336, 339 Margetson v. Margetson 241 Marriott/, c. Burgess v. Burgess . . 134 Marris v. Marris 73, 74 TABLE OF CASES. XV PAGE Marsh v. Marsh . .50, 248, 261, 276, 277, 278 Marshall r. Hamilton 131 v. Marshall. .156, 176, 181, 182, 357 Martin v . Lawrence 279 v. Martin 51, 276, 277, 345 Mason i\ Mason 100, 175, 357 v. Mitchell 169 Masters r. Masters 118 Matthew v. Matthew 168 Matthews v. Matthews 100, 154 Maudslay v. Maudslay . . . .253, 258, 277 Mawford v. Mawford 345, 356 Mayhew v. May hew 281, 363, 365 McCarthy v. De Cars 8 McCord v. McCord 83, 95 McCullock -c. McCullock 334 McKechnie v. McKechnie 295 McKeever v. McKeever 45, 53 McLord v. McLord. See McCord c. McCord. McMullen r. McMullen 14 Meara v. Meara 56, 151, 182 Medley v. Medley ... .219, 228, 239, 240 Mela Bain v. Thanoo Earn 176 Meredyth r. Meredyth 263 Merryweather v . Jones 180 Mette r. Mette 17, 138 Meyern i: Meyern 199 MicheU v. Michell 243, 244, 216 Midgeley /. c. Wood v. Wood 87 Midland Bail. Co. v. Pye 161, 172 Midwinter v. Midwinter . .243, 244, 246 Miles v. Chilton 141, 201 Milford v. Milford 44, 277 Miller v. Adm.-Gen., Bengal . .159, 167, 168 r. Miller 374 Millward, In re 5 v. Millward 374 Milner r. Miluer 45 Moore v. Moore. .32, 62, 80, 81, 97, 120, 156, ISO, 185, 186, 225, 238, 251, 357 Moorsom r. Moorsom 74 Mordaunt v. Moncrieffe 38, 93, 284 Morphett v. Morphett 49 Morrall v. Morrall 237, 252 Morris v. Morris 225, 366 Moss r. Moss 211, 238 Mucho r. Arzom Sahoo 183 Muhammad Kalu v. Saigulla 284 Muirhead, In re 194 Mullineaux r. Mullineaux 170 Mumby v. Mumby 212 Munroe v. Douglas 14 Munshi Buzloor v. Shumsoonim. ... 44 Munt v. Glynes 160 Mycock v. Mycock 92, 151, 351 Mytton r. Mytton 47, 54, 80 N. N. v. M 131 r.N 41 Narracott r. Narracott 197 Natall v. Natall 363, 365, 374 Nelson v. Nelson 377 Newman i\ Newman 101 Newsome v. Newsome 81 Newton v. Newton 212, 220, 251 Niboyet v. Niboyet 9, 10 NichoUs v. Nicholls 206 Nicholson v. Drury Building Co. . . 169 v. Nicholson. .99, 100, 202, 204 Nicol v. Nicol 181 Noakes v. Noakes 251 Noble v. Noble 96, 120, 143 Noel r. Noel 257, 264 Nokes v. Nokes 207, 208 Norman v. Villars 112, 201 Norris i: Norris 83, 243 Nott v. Nott 62, 156 O. Odevaine v. Odevaine 202 Oldroydr. Oldroyd 57, 65, 155, 179 Oliver v. Oliver 47, 48 Omrao Singh r. Prem Singh 286 Oppenheim r. Oppenheim 258 Ord r. Ord 219, 224 Orde v. Skinner 21 Ottaway v. Hamilton 164, 375 Otway r. Otway. .95, 153, 186, 369, 370, 371, 376 XVI TABLE OF CASES. Ousey v. Ousey and Atkinson . .66, 114 Oxford Guardians r. Barton 172 P. p. v . p 367 -r.S 129 Palmer r. Palmer 13, 76 v. 54, 80, 114, 116 Parker v. Parker 212 Parkinsons. Parkinson .. 32, 62, 156, 181, 350, 357 Parr v. Parr 241 Parry v. Parry 104, 106 Parsons, In re 244 Patrickson v. Patrickson 328 Patterson, In re 194 v. Patterson. .43, 113, 195, 208, 209 Paul r. Paul 256, 261 Perianayakan t\ Pottukani 5 Payne v. Payne 69 Peacock v. Peacock 70, 72, 78, 369 Pearce v. Pearce 263, 367 Pearman v. Pearman 52, 102, 360 Pearson v. Pearson 175 Pellew v. Pellew 99 Penty v. Penty 70, 72 Percy v. Percy 302 Pereira v. Pereira 81 Phillip v. Phillip 273 Phillips r. Phillips 74, 165, 347 Pickardv. Pickard 52, 218 Picken v. Picken 74, 106 Piers v. Piers 326 Pimen v. Hindhaugh 138, 139 Pitt r. Pitt 69, 71 Pizzala v. Pizzala 57 Plowden v. Plowden 45 Plumer v. Plumer 299 Pollack r. Pollack 122 Pollard v. Pollard 258, 358 Pomero v. Pomero Ponsonby r. Ponsonby 257, 260 Poole v. Poole 116 Popkin v. Popkin 51, 33 Porter v. Porter 248, 343 Potter v. Potter 96, 185 PAGE Powell v. Powell 207 Power v. Power 49 Priske v. Priske 378 Pritchard v. Pritchard 52, 218 Proby v. Proby 364, 365 Proctor v. Proctor 67, 185 Prole v. Soady 122 Pyne v. Pyne 347 Q. Queen-Empress. See Empress. Quicke v. Quicke 71 E. B. v. Kingston .................. 335 v . E ................... 205, 208, 209 Eadford v. Eadford .............. 183 Eahimbay v. Turner .............. 304 Earn Paul Singh, In re ............ 22 Earn Sahoy v. Eookhoo ........ 369, 371 Ramsden r. Brearley .............. 172 - v. Eamsden ............ 189 Eatcliffe v. Eatcliffe. . . .88, 100, 228, 234 Eathnammal v. Manikkan ........ 328 Eavenscroft v. Eavenscroft ........ 380 Eawlins v. Eawlins .............. 228 Eeasut v. Abdoolah .............. 30 Eebertest v. Eebertest ............ 347 Eedfern v. Eedf ern .............. 359 Eeeves r. Eeeves ................ 46 Eeg. v. Birmingham .............. 326 - v. Brawn .................... 24 - v. Brighton ................. 139 - v. Chadwick ............ 138, 149 - v. Clarke .................... 270 - v. Hawes .................... 23 - v. Jackson .................. 177 - v. Leresche ................. . 60 - r. Mainwaring .............. 326 - i'. Penson .................. 24 - v. Eobinson ................ 139 - r. Saint Giles-in-the-Fields . . 139 - V. Twining .................. 142 Eegan v. Began .................. 327 TABLE OF CASES. XV11 PAGE Richardson v. Richardson 334, 380 Ricketts v . Ricketts 178 Ridgway v. Ridgway 81 Rippingall v. Rippingall 184 Robertson v. Robertson . .216, 232, 369, 370 Robinson, In re 221 v. Robinson . . . .334, 377, 382 Robotham v. Robotham 348 Roe v. Roe 71, 377 Rogers v. Halmshaw 306 v. Rogers ... .78, 81, 86, 89, 114, 119, 120, 207, 365 Rohilkand v. Kumaon Bank 285 Ronalds v. Ronalds 32, 205 Rooker v. Rooker 328, 329 Rose v. Rose 54, 80, 82, 83, 95 Ross v. Ross 75, 248 Round v . Round 353 Routhv.F 284 Rowe v. Rowe 154, 356 Rowley v. Rowley.. 37, 39, 55, 82, 155, 345, 348, 351 Ruck v. Ruck 124, 336, 339 Russell v. RusseU. .41, 42, 43, 44, 47, 53, 57, 65, 67, 105, 151, 155, 179, 185, 345, 358 Ruxton v. Ruxton 49 Ryder v. Ryder 23, 270 S. 8.V.A. 131 v. B 133 St. Paul v. St. Paul 104, 106 Sansom v. Sansom 229 Saunders v. Saunders. .48, 70, 72, 252, 264 Sayer v. Glossop 330 Schira v. Schira 108 Schofield v. Schofield 246 Scholey v. Goodman 63, 180, 181 Scott r.Att.- Gen 15 v. Scott 49, 175, 187 v. Sebright 144, 145 Seatle v. Seatle 243, 244 Seaver v. Seaver 94, 185 Seddon v. Seddon . . . .190, 274, 379, 381 Seller v. Seller 83, 95 R. PAGE Serrell v. Serrell 130, 359 Setanath Ghose v. Shama Sundari. . 30 Sewell, Ex parte 168 Sharpe, Ex parte 171 Shaw v. Gould 8, 9, 340 v. Shaw 357, 358 Shewellr. Shewell 274 Shilson v. Att.-Gen 142 Shirley v. Shirley 210 Short v. Short 101 Sidney v. Sidney. .212, 215, 220, 225, 239 Simonin v. Mallac 135 Sirdar Gurdyal Singh v. Raja of Faridkot (see Gurdyal Singh v. Raja of Faridkot). Skinner v. Skinner 92, 218, 294 Smallwood v. Small wood 46, 154 Smith v. Morris 366 v. Smith . .55, 61, 92, 151, 152, 175, 189, 204, 343, 349, 351, 381 Smithe v. Smithe 249, 379 Smythe v. Smythe 231 Snowdon v. Snowdon 211 Sopwith v. Sopwith ... .37, 185, 336, 337 Sottomayor v. De Barros . . 135, 136, 138 Southern v. Southern 115 Sowden v. Sowden 250 Spedding v. Spedding 188, 196, 347 Spering v. Spering , 180, 357 Spilsbury v. Spilsbury 343 Spratt v. Spratt -. 272 Squires v. Squires 49, 345 Stacey v. Stacey 273 Stagg v. Edgecumbe 130, 132 Stanhope v. Stanhope . .38, 112, 113, 249 Starbuck v . Starbuck 65 Starkey v. Starkey 369 Stephen v. Stephen 116, 117, 353 Sterbini r. Sterbini 37 Stern, In re , 15 Stoate v. Stoate 117, 235, 375 Stoker v. Stoker 83, 95 Stone v. Stone.... 115, 194, 244, 265, 379 Story v. Story 82, 83, 95, 190 Strickland v. Strickland 60 Studdy v. Studdy 76 Styles v. Styles 95 Sudlow v. Sudlow 347 Sugg v. Sugg 86, 107 XV111 TABLE OF CASES. Suggate v. Suggate. .51, 52, 82, 274, 276, 277, 343, 346, 374 Suresh Chunder v. Tugert Chunder.. 289 Sutton v. Sutton 73 v. Sutton and Peacock 38 Swatman v. Swatman 51 Swift v. Swift 177, 244, 246 Sykes v. Sykes 250, 263 Symington v. Symington . .274, 276, 277 Symonds v. Symonds 255 Symons v . Symons 98, 368 T. T. v.D 133,371 v.M. 132 Taplen v. Taplen 380, 382 Taverner /. c. Ditchford v. Ditch- ford 110, 128, 358 Taylor v. Hailstone 364 v. Taylor 58, 196 Thapita Peter v. Thapita Lakhsmi. .4, 5 The Indian Chief 14 Theobald r. Theobald 177 Thomas v. Head 172 v. Thomas . .76, 202, 204, 265, 364 Thomasset v. Thomasset . .23, 270, 272, 275 Thompson v. Thompson . .55, 206, 210, 250, 253, 262, 273, 376 Thomson v. Thomson. .250, 363, 364, 367 Thornton r. Thornton 6, 12, 184 TietMns, In re 22 Todd v. Todd 76, 86 Tollemache v. Tollemache ..71, 73, 101 Tomkins v. Tomkins 53 Tonge v. Tonge 212 Toof eah r. Jussundu 176 Townsend v. Townsend 64 Tress v. Tress 181, 357 Troward v. Troward 82, 121 Trubner v. Trubner 348 Tukaram v. Vithal 284 Tupper v. Tupper 254, 258 Turner v. Thompson 15 Turton v. Turton 77 Tuthill v . Tuthill 153, 356 PAGE U. U. v . J 133 Udny v. Udny 13, 14 Underwood r. Underwood . . . .213, 221 Upendro Lai Bose, In re 283, 342 V. Vanquelin v. Bonsard 340 Venkatramana v. Timappa 283 Vernall, Ex parte 163 Vicars r. Vicars 215 Virgo v. Virgo 40, 336, 339 Vivian v. Vivian 383 W. Waddell v. Waddell 45, 48 Wadhawa r. Fatteh Muhammad . . 329 Waite v. Morland 160 Walker v. Walker 300, 350, 367 Wallace v. Wallace 273, 348 Wallis r. Wallis 225 Walmsley v . Walmsley 47 Walton v. Walton 75 Ward v. Ward 55, 59, 299, 367 Warden v. Warden 115 Warrender 'v. Warrender 4 Warter v. Warter 143, 306 Waterhouse v. Waterhouse . . . .217, 220 Watton v. Watton 114 Watts r. Watts 251 Weber v. Weber 207, 363 Webster v. Webster . . .23, 248, 262, 270 Weir, In re 173 Welde v. Welde 131 Weldon v. Weldon 176 Weller v. Weller 239 Wells v. Cottam 286, 366 v. Malben 122, 160 v. Wells 203, 344, 345, 363 West v. West 376, 377 Westmeath v. Westmeath 180 Wheeler v. Wheeler 70, 71, 108 Whieldon v. Whieldon 224 Whiter. White 52 TABLE OF CASES. XIX PAGE Whithorne v. Thomas 21 Whitmore v. Whitmore 363, 370 Whittmgham's Trusts, In re 170 Whitworth v. Whitworth 97 Wickham v. Wickham 120 Wigney v. Wigney 253, 255, 256, 260 Wilcocks v. Wilcocks 208, 224 Wildey v. Wildey 94 Wilkins v. Reynolds 134 Wilkinson v. Gibson 122 v. Wilkinson . .237, 269, 349 Williams v. Dormer 15 v. Homfray 130, 132 v. Williams ... .58, 77, 99, 110, 156, 208, 333, 334, 348 Williamson v. Williamson 65 Willis v. Willis 115, 117 Wilson, Lire 150 v. Wilson. . . .10, 15, 32, 100, 129, 180, 212, 373, 383 Wing v. Taylor 139, 324, 326 Wingrove v. Wingrove 22, 27 Winscom v. Winscom 81, 377, 382 Winstone v. Winstone 215 Witt v. Witt 278, 335 Wodehouse v. Wodehouse . . . 343 Wood v. Wood. .54, 57, 60, 158, 195, 207, 228, 239, 263, 300, 351 Woodgate v. Taylor 284, 364 Woodsey v. Woodsey 179 Worman, In re 161, 173 Worsley v. Worsley 251, 264 Wyndham v. Wyndham 343 X. X. v. Y. 132 Y. Yarrow i\ Yarrow 38 Yeatman v. Yeatman . .57, 58, 65, 103, 155, 169, 178, 339, 356, 357, 367 Yelverton v. Yelverton 15 Young v. Young 364 Z. Zaburdast Khan v. His Wife 5 Zyclinski v. Zyclinski 32 THE INDIAN DIVOBCE ACT. Act No. IV of 1869. PASSED BY THE GOVEENOE- GENERAL OF INDIA IN COUNCIL. (Received the assent of the Governor-General on the 26th February, 1869.) An Act to amend the laic relating to Divorce and Matrimonial Causes in India. WHEREAS it is expedient to amend the law relating to Preamble, the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial ; It is hereby enacted as follows : I. Preliminary. 1, This Act may be called " The Indian Divorce Short title. Act," and shall come into operation on the first day of April, 1869. NOTE. The Bill, wliich was eventually passed as Act IV of 1869, was framed by Mr. Whitley Stokes, and was originally introduced by Mr. (afterwards Sir Henry) Maine on the 24th December, 1862. Mr. Maine, in moving for leave to introduce the Bill, stated that its object was to give effect to the policy embodied'in the High Courts Act passed in 1861 (24 & 25 Viet. c. 104), and to the Letters Patent issued by her Majesty for con- stituting the High Courts. The object of the High Courts Act, he said, seemed to have been, not so much to create new branches of jurisdiction, as to constitute and re-distribute the power which already existed. The 9th clause gave power to her Majesty to confer on the High Courts such matrimonial jurisdiction as she thought tit ; but, following the principle he had mentioned, her Majesty did not attempt to confer on the High Courts such a jurisdiction as was exercised by the Divorce Court in England. The Secretary of State had, therefore, requested the Governor- General to introduce a measure, conferring a jurisdiction on the High Courts here similar to that exercised by the Divorce Court sitting in London. (See " Life and Speeches of Sir H. Maine" p. 9i.) The Bill, after having been seven years before the Council of the Governor- General, received the assent of the Governor-General on the 26th February, 1869. R. B THE INDIAN DIVORCE ACT. Extent of Act. Extent of power to grant relief generally. And to make decrees of dissolution. Or of nullity. "British subjects" : "Professes Christianity": 2, This Act shall extend to the whole of British India, and (so far only as regards British subjects within the dominions hereinafter mentioned) to the dominions of Princes and States in India in alliance with her Majesty. Nothing hereinafter contained shall authorize any Court to grant any relief under this Act, except in cases where the petitioner professes the Christian religion and resides in India at the time of presenting the petition ; or to make decrees of dissolution of marriage except in the following cases: (a) where the marriage shall have been solemnized in India ; or (b) where the adultery, rape or unnatural crime complained of shall have been com- mitted in India; or (c) where the husband has, since the solemnization of the marriage, exchanged his profession of Christianity for the profession of some other form of religion ; or to make decrees of nullity of marriage except in cases where the marriage has been solem- nized in India. (i) "British subjects" : The provisions of the Indian Divorce Act, 1869, are applicable to suits between European British subjects resident in Native States, and sect. 2 of the Act, which extends those provisions to such persons, was not ultra vires of the Indian Legislature. (Thornton v. Thornton, I. L. E., x Bomb. 422.) The Act has been declared to be in force in (1) the Santhal Parganas (Regs, iii of 1872 and iii of 1886) ; (2) the Arakan Hill District (Eeg. ix of 1874) ; (3) Upper Burma generally, except the Shan States (Act XX of 1886) ; (4) British Baluchistan (Eeg. i of 1890) ; (5) Angul and the Khondmals (Eeg. i of 1894). (ii) " Professes the Christian religion " : (a) The Indian Divorce Act applies to all marriages contracted under Act III of 1872 (" An Act to provide a form of marriage PRELIMINARY. 3 for persons who do not profess the Christian, Jeivish, Hindu, 2. Muhammadan, Parsi, Buddhist, Sikh or Jaina religion "), and any such marriage may be declared null or dissolved in the manner provided, and for the causes mentioned, in Act IV of 1869 (Act III of 1872, sect. 17). (&) Unless his or her marriage was contracted under Act III Atheists, of 1872, an atheist or infidel is not entitled to claim relief under lr e s * the provisions of Act IV of 1869. The fact that the petitioner was married in accordance with the rites of the Christian reli- gion, and professed that religion at the time of marriage, will not entitle him or her to relief under the Act unless he or she professes Christianity at the time of presenting the petition. (c) It is only necessary that the petitioner should profess Christianity at the time of presenting the petition ; it is immaterial what religion (if any) the respondent professes at that time. (d) Except as regards marriages contracted under Act III of Conditions 1872, the following conditions precedent must exist in order to ^ant^of relief entitle the petitioner to relief under the Indian Divorce Act : generally : (i) the petitioner must profess the Christian religion, and (i) Profes- (ii) reside in India at the time of presenting the petition ; Christianity- (iii) semble, the marriage, in respect of which relief is sought, (ii) Residence must be either one celebrated in accordance with the rites of i n India of the Christian religion, or one of a kind recognized as a marriage ?^j| in Christian countries. riage in ' ' The Act does not require in terms that the parties, or either Christen- of them, shall have been Christians at the time of the solemniza- om ' tion of marriage. There are provisions in the Act which pre- suppose Christianity as the religion of the parties at the time of the marriage, but it cannot be said that adherence to that religion at that time is made a condition precedent to the obtaining of relief under the Act. It by no means follows that the provisions of the Act can be made applicable to any marriage between non-Christians, although it may be a marriage which, according to the law governing them, is valid and legal. In applying the provisions of the Act, section 7 directs that the Court shall act and give relief on principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. In my opinion, the direction given in this section has to be kept in view by the Court in con- sidering whether a given marriage should be recognized as such for the purposes of the Act Now, in order to satisfy the English Divorce Court, while it is not necessary to prove that the marriage was celebrated with any specifically Christian B 2 THE INDIAN DIVORCE ACT. 2. "Marriage in Christen- dom": Definition of. ceremonies, or eve*n that both the parties were Christians, it is necessary to show that the union was a union for life of one man with one woman to the exclusion of others. This is what is meant by a Christian marriage, or -a marriage in Christendom" (per Shephard, J., Thapita Peter v. Thapita Lakhsmi, I. L. B., xvii Mad. 235); "Marriage is substantially one and the same thing all the Christian world over ; our whole law of marriage assumes this ; and it is important to observe that we regard it as a wholly different thing, a different status, from Turkish or other mar- riages among infidel nations" (per Lord Brougham, Warrender v. Warrender, 2 01. & Fin. 532). A marriage, to be recognized as such by the Courts of a Christian country, must, therefore, be a voluntary union for life of one man with one woman to the exclusion of all others ; but it need not necessarily have been celebrated in accordance with Christian rites or ceremonies. Thus a monogamous mar- riage contracted by a Christian with a non-Christian under the law of a non-Christian but monogamous country, such as Japan, was recognized as valid in England, the country of the Christian party's domicil (Brinckley v. Att.-Gen., 15 P. D. 76 ; 59 L. J., P. & M. 54). On the other hand, a union formed between a man and a woman, although it may under the law or custom, in accordance with which it was contracted, bear the name of marriage and the parties to it be designated husband and wife, is not a valid marriage according to the law of Christian countries unless it is formed on the same basis as marriages throughout Christendom. Thus where a domiciled Englishman went through the form of marriage with a woman of the Baralong tribe, in Bechuana- land, according to the customs of the tribe, among whom poly- gamy is allowed, and the parties lived together thereafter as husband and wife, and the man refused to be married to the woman in a church on the ground that he had become a Bara- long, it was held that the union was not a marriage in the Christian sense of the term (Bethell, In re, Bethell v. Hildyard, 38 Ch. D. 220 ; 57 L. J., Ch. 487). So again, a marriage contracted in a country, where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a marriage as understood in Christendom. In such a case the marriage, although it is valid by the lex loci and at the time it was contracted the parties were single and competent to contract marriage inter se, will not be PRELIMINARY. 5 recognized as valid by the English Matrimonial Court in a suit 2. instituted by one of the parties against the other for the purpose ~ of enforcing matrimonial duties or obtaining relief for a- breach of matrimonial obligations (Hyde- v. Hyde and Woodmansee, L. K., 1 P. 130; 35 L. J., P. & M. 57). Acting on this principle, the Indian Courts have" held that they have no jurisdiction under the Indian Divorce Act, 1869, to dissolve the marriages of parties who, having been married in accordance with Muhammadan Law, have since their marriage become converts to Christianity (Zaburdast Khan v. His Wife, 2 N. W. P., H. C. B. 370). Nor have the Courts jurisdiction under the Act to dissolve the marriages of Hindus who, subsequently to their marriage, have become converts to Christianity (Perianayakan v. Pottukani, I. L.E., xivMad. 382; ThapitaPeter v. Thapita Lakhsmi, I. L..R., xvii Mad. 235). Nor in such cases does the mere fact that the husband has married only one wife alter the character of the union, if under the law, in accordance with which the marriage was contracted, he was at liberty to marry several wives at the same time (Thapita Peter v. Thapita Lakhsmi, ubi supra). At the same time such " marriages," although not recognized as such for the purposes of the Indian Divorce Act, are un- doubtedly valid for other purposes. Thus, if a man and a woman profess the Hindu religion, and as such contract a marriage, their subsequent conversion to Christianity will entail the penalties of bigamy upon that party to the marriage who, during the lifetime of the other party, goes through a form of marriage with a third person (In re Millward, I. L. K., x Mad. 218). And a Hindu woman who has been married to a Hindu husband is entitled, upon the death of the latter intestate, to succeed to her legal portion as his widow, although subsequently to his marriage he had become a convert to Christianity (Adminis- trator-General of Madras v. Ananduchari, I. L. B., ix Mad. 466). The High Court of Calcutta, on the other hand, has held that, View of High if a petitioner professes the Christian religion at the time of presenting the petition, he or she is entitled to relief under the Indian Divorce Act, and this whether or not the "marriage," in respect of which relief is prayed, be recognized as such in Christendom. Thus, in a case where the petitioner and respon- dent were married as Hindus, but subsequently became converts to Christianity, it was held that the petitioner, who applied for dissolution of his marriage, was entitled to relief under the Act, THE INDIAN DIVORCE 2. Matrimonial jurisdiction : (a) for pur- poses of municipal law: (b) For pur- poses of international law. inasmuch as lie was a person professing the Christian religion at the time of presenting his petition (Gobardhan Dass v. Jasadamoni Dass, I. L. B., xviii Calc. 252). (iii) " Resides in India " : As regards the power of granting relief generally, the Indian Courts have, under this section and for the purposes of muni- cipal law, jurisdiction to grant such relief provided that the petitioner professes Christianity and resides in India at the time of presenting the petition. The absence of the respondent from India at such time is immaterial (Thornton v. Thornton, I. L. E., x Bomb. 422). But, although for the purposes of Indian municipal law, mere "residence" in India is sufficient, it is submitted that such residence must be at least bond fide, and not that of a mere casual traveller. Nor must it be a merely colourable residence for the purpose of obtaining relief under the Act. For the purposes, and according to the principles, of inter- national law, a jurisdiction in matrimonial causes, which is founded on the residence of the petitioner alone, is not sufficient. According to the principles of international law (a) The Courts of the husband's domicil have jurisdiction in all matrimonial suits, and the absence of the re- spondent (whether husband or wife) from, the country of the domicil of the husband does not affect such jurisdiction; (b) In every suit which involves the disruption of the matrimonial tie, the only Court of competent jurisdic- tion is the Court of the husband's domicil ; Provided (in both cases) that the domicil of the wife is not the domicil of the husband to such an extent as to compel her to become subject to the jurisdiction of the tribunals of any country in which the husband may choose to acquire a new domicil (Briggs v. Briggs, 5 P. D. 163 ; 49 L. J., P. & M. 38.) (c) In matrimonial suits other than those which involve the disruption of the marriage tie, a Court, other than the Court of the husband's domicil, has jurisdiction to grant relief, provided that both the parties are resident within the jurisdiction of such Court at the time of suit, or that the respondent, if absent, has submitted to the jurisdiction of such Court. In suits such as those here referred to, a decree passed in absentem by a PRELIMINARY. 7 foreign Court (i.e. a Court other than the Court of the 2. husband's domicil) to the jurisdiction of which the ~~ respondent has not in any way submitted himself or herself is by international law an absolute nullity. He or she is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the Courts of every nation, except (when authorized by special legislation) in the country of the forum by which it was pronounced (Sirdar Gurdyal Singh v. RajaofFaridkot, (1894) A. C. 670 ; I. L. E., xxii Calc. 222; No. 112, Punjab Eecord, 1894). Jurisdiction in suits involving disruption of marriage tie. In addition to the conditions precedent to the granting of any (a) Under relief under the Indian Divorce Act, viz. the petitioner's pro- Indian fession of Christianity and residence in India at the time of presenting the petition, and also (it is submitted) " a marriage in the Christian sense," it is further necessary to give jurisdic- tion under the Act (a) In suits for dissolution of marriage, that the marriage shall have been solemnized in India, or that the adul- tery, rape or unnatural crime complained of shall have been committed in India, or that the husband shall have, since the solemnization of the marriage, ex- changed his profession of Christianity for the profes- sion of some other form of religion ; (b) In suits for nullity of marriage, that the marriage shall have been solemnized in India. If in any particular case the conditions precedent above set forth are found to exist, the Courts in British India have full j urisdiction, for the purposes of municipal law, to make a decree for dissolution or nullity of marriage, as the case may be, and any such decree will be valid for all purposes throughout British India. But for international purposes and according to international (b) For pur- law, the domicil for the time being of the married pair affords P oses *. . . T international the only true test of jurisdiction to dissolve the marriage (Le j aw- Mesurier v. Le Mesurier, (1895) A. C. 517; 64 L. J., P. C. 97). "Where, therefore, the Courts of a country assume jurisdiction to decree a divorce between persons living in the country, the jurisdiction must be derived either from some recognized prin- ciple of the general law of nations, or from some rule of muni- THE INDIAN DIVORCE ACT. Indian Divorce Bill as originally framed. 2. cipal law peculiar to its forum (e.g. under the Indian Divorce ~~ Act). Where the jurisdiction exercised is in accordance with the principles of international law, the decree ought to be respected by the tribunals of every civilized country ; but where it is derived solely from some rule of the municipal law of the particular country, it cannot claim extra-territorial authority if it trenches upon the interests of any other country to whose tribunals the spouses are amenable (ib.). In the Indian Divorce Bill, as originally framed, it was made a condition precedent to the exercise of jurisdiction in suits for 'dissolution of marriage that the marriage, in respect of which relief was sought, should have been solemnized in India, and that the domicil of the husband, both at the time of marriage and of the institution of the suit, should be in India, the reason being that Lolley's Case (Euss. & Ey. 237 ; 2 01. & Fin. 567) was at that time supposed to have decided that "a marriage solemnized in England was indissoluble by any foreign* Court" (McCarthy v. Du Caix, 3 Hagg. 642 ; 2 Euss. & Myl. 615). As a matter of fact, however, what was actually decided in that case was that ' ' no sentence or act of any foreign country or state could dissolve an English marriage a vinculo matrimonii for grounds on which it was not liable to be dissolved a vinculo matrimonii in England" (per Hannen, P., Harvey v. Farnie, Shaw v. Gould. 5 P. D. 154). While, however, the Bill was still before the Select Committee, the House of Lords in the case of Shaw v. Gould (L. E., 3 E. & I. App. 55) explained the true theory of English law regarding the indissolubility of English marriages. Accord- ing to that high authority, a competent foreign Court has juris- diction to dissolve a marriage solemnized in England between English subjects, provided that the married pair are domiciled within the jurisdiction of such Court at the time of the institu- tion of the suit. The decision in Shaiv v. Gould was, therefore, sufficient authority for the omission from the provisions of the Bill of the condition precedent that the marriage to be dissolved should have been solemnized in India. For, irrespective of any question as to where the marriage ceremony was performed, the Courts of this country would be competent to dissolve the mar- riage of spouses domiciled in British India, and every such decree * "Foreign" here means any Court other than the Courts in England. For the purposes of divorce jurisdiction, the British Colonies and Scotland and Ireland are deemed "foreign countries" (Firebrace v. Firebrace, 4 P. D. 63 ; 47 L. J., P. & M. 41). PRELIMINARY. of dissolution -would be entitled to receive international recog- nition. It was felt, however, that a jurisdiction based on the domicil of the married pair would not suffice to meet the cases of those Europeans in India and they form the majority of Europeans in this country "who are resident in India, but whose residence falls somewhat short of domicil" Belying, therefore, on an obiter dictum in the judgment of Lord Colonsay (in Shaw v. Gould), which went the length of affirming that a dornicil for all purposes might not be necessary, and that if both parties had been bond fide resident for a considerable time within the jurisdiction of the foreign Court which decreed a dissolution of marriage, such decree would be recognized as valid by the Courts of the domicil, the Select Committee decided to found the jurisdiction of the Indian Courts to grant a disso- lution of marriage upon not the domicil of the married pair, but the residence of the petitioner in India at the time of pre- senting the petition (see the speech of Mr. (afterwards Sir Henry) Maine, in the Supplement to the Gazette of India, 1869, p. 293). In so deciding, it is obvious that the Select Committee went even further than the dictum of Lord Colonsay (a Scotch lawyer) warranted, and it was always a matter of grave doubt whether a jurisdiction based on so slender a foundation as that of the petitioner's residence in India at the time of instituting a suit for dissolution of marriage would receive international recognition. These doubts have now been completely removed by the decision of their Lordships of the Privy Council in the case of Le Mesurier v. Le Mesurier (supra], which, however, merely affirms the principle previously enunciated by the House of Lords in Harvey v. Farnie (8 App. Gas. 43 ; 52 L. J., P. & M. 33), that "the question of divorce is not an incident of the marriage contract to be governed by the lex loci contractus, but is an incident of status to be disposed of by the law of the domicil of the parties that is, of the husband " (cf. Bishop, " Divorce," vol. 2, ch. x, 136). The majority of the English Court of Appeal (James and Niboyet v. Cotton, L.JJ., Brett, L.J., dissenting) in 1878 decided, it is true, that a bond fide residence without domicil would suffice to give jurisdiction to the English Court to dissolve a marriage if the matrimonial offence had been committed in England (Niboyet V. Niboyet, 4 P. D. 1 ; 48 L. J., P. & M. 1). And in certain cases (e.g., Jack v. Jack, 24 Sess. Gas., 2nd Ser. 467) the Scotch Courts developed a theory that a something which fell short of actual domicil, but which they termed "matrimonial domicil," 10 THE INDIAN DIVOECE ACT. 2. explained as meaning " the home or seat of the marriage for the time being, the place where the spouses are actually resident if they be together, or, if from any cause they are separate, the place in which they are under an obligation to come and renew, or commence, their cohabitation as man and wife " would be sufficient to give them jurisdiction in suits for dissolution of marriage. These decisions, however, were examined and Le Mesurler v. severely criticized in Le Mesurier's Case, and their Lordships Le Mesurier. concluded by concurring, " without reservation, in the views expressed by Lord Penzance in Wilson v. Wilson (1 P. & D. 442), which were obviously meant to refer, not to questions arising in regard to the marital rights of married persons, but to jurisdiction in the matter of divorce : ' It is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt in this matter of jurisdiction is to insist upon the parties in all cases referring their matrimonial differences to the Courts of the country in which they are domiciled. Different communities have different laws and views respecting matri- monial obligations, and a different estimate of the causes which should justify divorce. It is both just and reasonable, therefore, that the differences of married persons should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and a woman are held to be man and wife in one country and strangers in another.'" As remarked by the present Master of the Rolls, in his dis- senting judgment in Niboyet v. Niboyet (4 P. D. at p. 13), if jurisdiction in suits involving the disruption of the married tie is founded on anything short of domicil, the relation or status of a married person will be one in the country of the Court making the decree, and another in all other countries. "That is to say, a man or a woman would be treated as married in one countiy , and not so in another ; or married people might be enjoined to live together in one country and to live apart in another. No Court ought to assume or presume to place people in so deplorable a position, unless forced to do so by the express law of the country whose law it is administering." The qiiestion then arises, Are the Courts in India bound by the provisions of the Indian Divorce Act to place persons not domiciled in India in the deplorable position alluded to by Lord Justice Brett? A very learned American writer (Bishop, Possible solution of difficulty. PRELIMINARY. 11 "Divorce," vol. 2, 114, 124) suggests a way out of the diffi- 2. culty : ' ' The Courts of every country, both when they decree divorces and when they sit in judgment on foreign divorces, should do whatever they consistently can to establish rules pre- ventive of a conflict of law The international rule of jurisdiction is a part of our unwritten law. Hence, and because this law binds our Government in all its departments almost like our written constitutions, our statutes giving jurisdiction should be construed as mingled with and qualified by it ; and never, except by such express words as admit of no other result, be permitted a meaning conflicting therewith Any word employed in a statute may be modified, limited, or expanded in meaning by the connection in which it stands and the subject to which it is applied. Our divorce statutes, giving jurisdiction, commonly provide that the applicant shall have ' resided ' a given number of years in the state. The principles of inter- national law, and the general principles of our own, requiring the residence for divorce to be animo manendi, the method of interpretation already pointed out indicates that the residence demanded shall be held to be permanent the domicil." Accepting this method of interpretation, the Courts of this country might construe the words " resides in India at the time of presenting the petition " as intended to mean "resides animo manendi, and must be actually present at the time of instituting the suit." If the petitioner is the husband, his residence animo manendi, that is to say, his domicil, is in law the residence animo manendi or domicil of his wife. If, on the other hand, the petitioner is the wife, her residence animo manendi, that is to say, her domicil, is in law (except in certain exceptional cases, referred to below) the domicil of her husband. In the latter event, the Court would refuse to entertain her suit, although she might be temporarily resident in India at the time, unless her husband's permanent home, or domicil, were in this country at the time when she presented her petition. This method of interpretation would, at least, preclude the "scandal" spoken of by Lord Penzance in Wilson v. Wilson, and would, of course, be necessary only in suits for dissolution of marriage. To refuse to entertain such a suit when instituted by a peti- tioner who is not domiciled in India at the time would very considerably limit the operation of the Indian Divorce Act. At the same time, to grant a decree in such a case would place the parties in the anomalous and "deplorable" position of being man and wife in the country of their permanent home, 12 THE INDIAN DIVORCE ACT. 2. and every other country except India, where they would be " strangers." And Lolleifs Case (supra) is, at least, an authority to show that a decree of an Indian Court in such a case might not be considered a sufficient excuse for relieving from the penalties of bigamy a person who, in reliance upon such decree, and after his or her return to the country of domicil, went through a form of marriage with a third person during the lifetime of the other party. Conclusion. (i) For the purposes of municipal law, a decree of dissolution of marriage granted by a Court of competent jurisdiction is absolutely valid in the country of such Court, and none the less so, although the domicil of the spouses may be elsewhere, if the municipal law founds the jurisdiction of its Courts in such cases on mere residence as distinct from domicil. (ii) For the purposes of international law, and to have extra- territorial validity, a decree of dissolution of marriage can only be granted by the Courts of the domicil of the parties. (iii) For the purposes of international law as well as for those of municipal law, the decree of a Court of competent jurisdic- tion in all matrimonial suits other than those involving the disruption of the matrimonial tie is valid and binding ; pro- vided that both the parties were resident at the time within the jurisdiction of such Court, or that the respondent, if absent, submitted to such jurisdiction. (iii A) For the purposes of international law, a decree of nullity of marriage to be valid must be the decree of a Court of the country in which the marriage was solemnized. (iv) For the purposes of municipal law alone, the decree of a Court of competent jurisdiction in any matrimonial suit may be valid and binding, even if passed in absentem against a re- spondent who has in no way submitted to the jurisdiction of such Court, if the Court is authorized by its municipal law to grant a decree under such circumstances (Thornton v. Thornton, I. L. E., x Bomb. 422). (v) But, although the decree of a Court dissolving a marriage between persons domiciled elsewhere is not entitled per se to extra-territorial recognition, the party at whose suit such mar- riage was so dissolved may be estopped, under certain circum- stances, from disputing its validity. Thus, where a domiciled English subject went to America in 1850, and some six years thereafter his wife, who had followed him to that country, obtained a dissolution of the marriage in an American Court, it was held in a suit subsequently instituted by the wife in the PRELIMINARY. 13 English. Courts for dissolution of the same marriage, on the ground of her husband's adultery with a woman whom he had married after the American divorce, that the husband's cohabi- tation with the said woman, even if it amounted to adultery, was the natural consequence of the suit in America, and that the wife had, therefore, connived at such adultery and her petition must be dismissed (Palmer v. Palmer, 1 S. & T. 551 ; 29 L. J., P. & M. 26). "Domicil": As has been already pointed out, the question of the domicil "Domicil." of the parties is a matter of the greatest importance in all suits which involve the disruption of the marriage tie. It may be as well, therefore, to give a brief explanation of what constitutes " domicil" in the legal sense of the term. "Domicil" has been defined as "that place or country in Definition of which a person's habitation has been fixed without any present domicil. intention of removing therefrom." (In re Craignish, (1892) 3 Ch. 180); "that place in which a person has voluntarily fixed the habitation of himself and his family, not for a mere special or temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is un- expected or uncertain) shall occur to induce him to adopt some other permanent home " (Lord v. Colvin, 28 L. J., Ch. 361). The domicil of a person is quite distinct from the patria or Distinct from nationality to which he may belong (Udny v. Udny, L. E., nationality. 1 H. L. (Sc.) 460). Thus a person, who is by nationality an Englishman, may have his domicil in France. It is a settled principle that no person shall be without a "Domicil of domicil, and to secure this end the law attributes to every indi- origin." vidual, as soon as he is born, the domicil of his father, if the child be legitimate, and the domicil of his mother, if the child be illegi- timate. This is called the " domicil of origin ," and is involun- tary. It is the creation of law not of the party. It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal, but it cannot be destroyed by the will and act of the party. But, although a person cannot by an act on his part absolutely "Domicil of extinguish or obliterate his domicil of origin, he is at liberty to create for himself a new domicil, called the " domicil of choice ," and when a domicil of choice is acquired, the domicil of origin is in abeyance. If, however, the domicil of choice is at any time 14 THE INDIAN DIVORCE ACT. 2. abandoned, the domicil of origin ipso facto revives, and no special ~~ intention to revert to it is necessary. If, therefore, a person abandons a domicil of choice and travels about in search of another domicil of choice, the domicil of origin comes instantly into action and continues until another domicil of choice is acquired (Udny v. Udny, supra}. A " domicil of choice " arises when a person having the power of changing his domicil (i.e., a person sui juris, Somerville v. Somerville, 5 Ves. 786) voluntarily abandons his existing domicil and settles in another place or country with the intention of permanently residing there (Lord v. Colvin, supra}. No definite period of residence is necessary for the acquisition of a domicil of choice, but there must in all cases be a fixed present intention that the residence should be (so far as can be foreseen) permanent (King v. Foxivell, 3 Ch. D. 518). Long residence raises a presumption in favour of the acquisi- tion of a new domicil, but any such presumption may be rebutted by circumstances showing an absence of intention to acquire a new domicil (Gillis v. Gillis, 8 Ir. E., Eq. 597). Englishmen coming out to India and residing in this country for a length of time, but with the fixed intention of returning to live in England, do not thereby lose their English domicil (The Indian Chief, 3 Eob. Adm. Eep. 28). It was held, however, that persons who came out to enter the service of the East India Company acquired a new domicil in this country (Jopp v. Wood, 34 Beav. 88 ; on app., 34 L. J., Ch. 211; Bruce's Case, 2 Bosanquet & Puller's Eeps. 230; Munroe v. Douglas, 5 Haddock's Eeps. 379 ; Drevon \.Drevon, 34 L. J., Ch. 129). These cases, however, formed an exception to the general rule that persons who occupied an official position in a country were not to be regarded as domiciled therein merely by reason of their residing in such country for the purposes of their official duties. And it is now laid down in sect. 10 of the Indian Succession Act, 1865, that, although "a man acquires a new domicil by taking up his fixed habitation in a country which is not the country of his domicil of origin," yet " a man is not to be considered as having taken up his fixed habitation in British India merely by reason of his residing there in her Majesty's civil or military service, or in the exercise of any profession or calling " (cf . In re Macreight, 30 Ch. D. 165 ; 55 L. J., Ch. 28). A domicil of choice is established by conduct, and not by mere assertion (MacMuUen v. Wadsworth, 14 App. Cas. 631 ; 59 PRELIMINARY. 15 L. J., P. C. 7). The oath, therefore, of the person whose 2. domicil is in question is not conclusive, and it is for the Court ~~ to decide whether, upon a review of all the circumstances, credit should be given to his evidence (Wilson v. Wilson, L. R., 2 P. 435 ; 41 L. J., P. & M. 74). So long as actual residence con- tinues, the mere intention to change the domicil, or temporary absences, are not sufficient to destroy the domicil of choice (In re Stern, 28 L. J., Ex. 22). A woman on her marriage acquires the domicil of her husband Domicil of (Indian Succession Act, 1865, s. 15 ; Yelverton v. Telverton, I S. marned woman. & T. 574; Turner v. Thompson, 13 P. D. 37; Harvey v. Farnie, 5 P. D. 154 ; 8 App. Gas. 43). But a wife who has been judicially separated, or has been deserted by her husband, may be entitled to acquire a distinct domicil for herself (Indian Succession Act, 1865, s. 16, excep- tion ; Dolphin v. Robins, 7 H. L. Gas. 390 ; Williams v. Dormer, 2 Eob. Eccl. 505 ; Scott v. Att.-Gen., 11 P. D. 128). But such domicil is effective only for purposes affecting herself as apart from her husband, and she cannot in a suit for dissolution a vinculo make her husband amenable to the lex fori of her new domicil (Le Sueur v. Le Sueur, 1 P. D. 139). On the other hand, the domicil of the wife is not the domicil of the husband to such an extent as to compel her to become subject to the jurisdiction of the tribunals of any country in which the husband may choose to acquire a new domicil (Briggs v. Briggs, 5 P. D. 163). " Or where the husband has, since the solemnization of the Perver- marriage, exchanged his profession of Christianity Christianity for the profession of some other form of religion." on part of The object of this clause was to meet such cases as that in which the Madras High Court had held that a Hindu convert to Christianity who, after his conversion and his marriage as a Christian with a Christian woman, reverted to Hinduism, re- acquired his rights of polygamy (Anon., 3 Mad. App. 7). In such a case, although the mere reversion to Hinduism does not dis- solve the marriage, section 10 of the Act provides that the wife is entitled to sue for dissolution of marriage if her husband, after the solemnization of the marriage, "exchanges his pro- fession of Christianity for the profession of some other form of religion," and thereafter "goes through the form of marriage with some other woman." That a wife should, under such circumstances, be entitled to 16 THE INDIAN DIVORCE ACT. 2. a dissolution of the marriage, is only just and reasonable; but that a jurisdiction to grant a divorce should be founded (irre- spective of the domicil of the parties, or of the place where the marriage was celebrated or the matrimonial offence committed), on the mere fact that a husband had, since the solemnization of his marriage, perverted from his profession of Christianity, is, at least, an anomaly. From the wording of the clause, curious (though, no doubt, unintended) results might follow. To give an extreme instance. A., a domiciled Englishman, marries B., an Englishwoman, in England. After the marriage A. is guilty of legal cruelty towards B., which is, however, condoned; and subsequently A. , who has received an offer of a three years' employment at Bombay, comes out to India with B. They set up their home in Bombay and live together there for a few months, after the expiration of which A., with the full consent of B., returns to England, leaving B. at Bombay. On his re- turn to England A. commits adultery, in consequence of which the previous condoned cruelty is revived. In such a case, although the matrimonial misconduct on the part of the husband would entitle the wife to a divorce, had the marriage been solemnized in India or the matrimonial offence been committed in India, the High Court of Bombay has, under the circumstances, no jurisdiction to dissolve B.'s marriage. If, however, A., being still in England, some ten years after the act of adultery ex- changes his profession of Christianity for that of the Jewish religion, B. (if still resident in India and professing the Chris- tian religion) will be entitled to apply to the High Court of Bombay for a dissolution of her marriage with A., and that Court will then have jurisdiction to grant the decree prayed for. In this instance, neither has the marriage been solemnized, nor have the matrimonial offences been committed, nor are the parties domiciled, in India, and the mere exchange by A. of Christianity for the Jewish religion is not per se a ground for dissolving the marriage. But the Bombay Court acquires, by reason of A.'s perversion, a jurisdiction, which, till then, it did not possess, to entertain B.'s suit for divorce. It is also noticeable that it is only the husbands perversion from Christianity that gives jurisdiction to the Courts ; if, there- fore, it is the wife who has perverted, the Courts of this country will not have jurisdiction to grant a dissolution unless either the marriage has been solemnized in India or her adultery has been committed in India. PRELIMINARY. 17 " Or to make decrees of nullity except in cases where the 2. marriage has been solemnized in India." Jurisdiction The jurisdiction thus conferred is in accordance with the t 8 Tant principles of international law, for " jurisdiction to entertain nullity, a suit for the declaration of the nullity of a marriage depends, not on the domicil of the parties, but on the place where the marriage is celebrated Domicil, indeed, cannot be the test of jurisdiction, for the domicil of the woman may depend on the very point demanding decision, viz., the validity of the marriage" (Dicey's Conflict of Laws, 1896, pp. 276, 277). But the jurisdiction of the Courts of the place where the mar- riage was celebrated is not exclusive if one or other of the parties is domiciled in some other country. "It is quite obvious that no civilized state can allow its domiciled subjects or citizens, by making a temporary visit to a foreign country, to enter into a contract to be performed in the place of domicil, if the contract is forbidden by the law of the place of domicil as contrary to religion or morality, or to any of its fundamental institutions " (per Lord Campbell, Brook v. Brook, 9 H. L. Cas. 193). Accordingly, a marriage, no matter where celebrated, between a domiciled English subject (possibly even between a person merely domiciled in England but not an English subject) and his deceased wife's sister will be declared null and void by the Courts in England, although it may be perfectly valid by the lex loci celebrationis (Mette v. Mette, 1 S. & T. 416 ; 28 L. J., P. & M. 117 ; Brook v. Brook, 9 H. L. Cas. 193). Under the Indian Divorce Act, however, the Courts of this country have no jurisdiction to declare a marriage between persons domiciled in India null and void unless such marriage was solemnized in India. As regards the principles upon which the Courts in India act in deciding whether a particular marriage is or is not valid, see sect. 19, post, s. t. "Prohibited degrees." 3. In this Act, unless there be something repugnant titerpreta- , i_ !_ i j. L tion clause. in the sub]ect or context, (1) "High Court" means, in any Regulation pro- "High vince, the Court there established under the Court -" Act of the twenty-fourth and twenty-fifth of Victoria, chapter one hundred and four ; in the territories for the time being subject to R. c 18 THE INDIAN DIVORCE ACT. 3. the government of the Lieutenant-Governor of the Punjab, the Chief Court of the Punjab ; in Burma, the special Court constituted under the Lower Burma Courts Act, 1889 ; and in any other non-Regulation province and in any place in the dominions of the Princes and States in India in alliance with her Majesty, the High Court or Chief Court to whose original criminal jurisdiction the peti- tioner is for the time being subject, or would be subject if he or she were an European British subject of her Majesty. In the case of any petition under this Act, "High Court" is that one of the aforesaid Courts within the local limits of whose ordinary appellate jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together. (2) "District Judge" means, in the Regulation pro- vinces, a Judge of a principal Civil Court of original jurisdiction ; in the non-Regulation provinces, other than Sindh and the areas for the time being com- prised within the local limits of the ordinary civil jurisdiction of the Recorder of Rangoon and of the civil jurisdiction of the Court of the Judge of the town of Moulmain, a Com- missioner of a division ; in Sindh, the Judicial Commissioner of that province ; in the areas aforesaid, the Recorder of Ran- goon and the Judge of the town of Moulmain, respectively ; and in any place in the dominions of the Princes PRELIMINARY. 19 and States aforesaid, such officer as the 3. Governor- General of India in Council shall from time to time appoint in this behalf "by notification in the Gazette of India, and, in the absence of such officer, the High Court in the exercise of its original jurisdiction under this Act. (3) "District Court" means, in the case of any "District petition under this Act, the Court of the Dis- trict Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside, or last resided together. (4) "Court" means the High Court or the District "Court." Court, as the case may be. (5) " Minor children" means, in the case of sons of "Minor children." native fathers, boys who have not completed the age of sixteen years, and, in the case of daughters of native fathers, girls who have not completed the age of thirteen years. In other cases it means unmarried children who have not completed the age of eighteen years. (6) " Incestuous adultery " means adultery com- mitted by a husband with a woman, with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of con- sanguinity (whether natural or legal) or affinity. (7) " Bigamy with adultery " means adultery with the same woman with whom the bigamy was tery." committed. (8) " Marriage with another woman " means mar- " Marriage with another riage of any person, being married, to any woman." c2 20 THE INDIAN DIVORCE ACT, " Desertion." "Property." 3. other person during the life of the former wife, whether the second marriage shall have taken place within the dominions of her Majesty or elsewhere. (9) " Desertion " implies an abandonment against the wish of the person charging it ; and (10) " Property " includes, in the case of a wife, any property to which she is entitled for an estate in remainder or reversion, or as trustee, exe- cutrix, or administratrix ; and the date of the death of the testator or intestate shall be deemed to be the time at which any such wife becomes entitled as executrix or adminis- tratrix. (i) Sect. 3 is as amended by Act XI of 1889 (the Lower Burma Courts Act). The Punjab Courts Act, 1884, repealed so much of sect. 3 as defines "district judge" in the Punjab to mean " the com- missioner of a division." For the definitions of "incestuous adultery" and " bigamy" given by sect. 27 of the Matrimonial Causes Act, 1857, see sect. 10, post. "European British subject." (ii) " European British subject" : As defined by the Criminal Procedure Code, 1882 (s. 4), "European British subject" means (a) Any subject of Her Majesty born, naturalized, or domiciled in the United Kingdom of Great Britain and Ireland, or in any of the European, American, or Australian colonies or possessions of Her Majesty, or in the colony of New Zealand, or in the colony of the Cape of Good Hope or Natal : (b) Any child or grandchild of any such person by legiti- mate descent. The criminal jurisdiction of the High Courts and of the Chief Court of the Punjab extends to European British subjects resi- dent within the local limits of such Court's appellate criminal jurisdiction, and within such other territories as have been notified for that purpose by the Governor- General in Council PRELIMINAEY. 21 under the provisions of 28 & 29 Viet. c. 15, e. 3. For a list 3. of such territories, see Prinsep's "Criminal Procedure Code, 1882," under sect. 458. (iii) " Reside or last resided together " : " Beside or last resided In Webster's Dictionary the verb "to reside" is defined as together." meaning "to dwell permanently, or for a length of time; to have one's dwelling or home;" and in numerous cases the Courts have held that the words " dwelling," " place of abode," and " residence " are synonymous (see Lambe v. Smytlie, 15 L. J., Ex. 287 ; Alexander v. Jones, L. E., 1 Ex. 133). A " dwelling" is the place where a man lives, and which he con- siders his home for the time being. It is constituted by an actual occupancy coupled with an intention to give the character of a certain permanency to such occupancy. If a man has a family dwelling in some place, but occasionally occupies a house and sleeps in another place, his "residence" will be in the former, and not the latter, place (cf. Gopal Chunder Sircar v. Kurnodar Mooshee, 7 Suth., W. E. 349). Mere casual presence, or even "residence" for a temporary purpose with no intention of remaining, is not "dwelling," nor, where a party has a fixed " residence " out of the jurisdic- tion, will an occasional visit within the jurisdiction suffice to confer jurisdiction by reason of residency (Lelim Tewarree v. Govingdeer Gosain, Marsh. 64). If a man has a dwelling in a certain place, a mere tem- porary absence, with the fixed intention of returning, will not alter the character of his residence in the former place (Whithorne v. Thomas, 7 Man. & Gr. 1). A man who has a fixed dwelling in the plains does not the less " dwell" there, according to the proper and legal construc- tion of the word, because for health or pleasure he passes the hot season on the hills (Ordey. Skinner, L. E., vii Ind. App. pp. 204, 205). Where A., whose zamindari and dwelling-house in the district of D. had been sold, came to Calcutta in May, 1880, and there filed his petition under the Insolvents Act (11 & 12 Viet. c. 21), remaining in Calcutta in a hired house till September (when the Court rose for the vacation), and returning there shortly before the end of the vacation after a temporary absence for the purpose of raising funds for the insolvency proceedings, the High Court held that, although A. had no "residence " outside Calcutta, he did not "reside" there within the meaning of 22 THE INDIAN DIVORCE ACT. 3. sect. 5 of the statute (In re Ham Paul Singh, 8 C. L. E. 14; " cf. In re Tietkins, 1 B. L. E., 0. C. 84). Although the word " residence " or " reside " " may receive a larger or more restricted meaning, according to what the Court believes the intention of the Legislature to have been in framing the particular provision in which the word is used " (per Sargent, O.J., Mahomed Shaffi v. Laldin, I. L. E., iii Bomb. 227), the authorities, to which reference has been made above, tend to show that if a man has any kind of fixed home in a certain place, he must be regarded as "residing" there, although he may be temporarily absent for the purposes of health, pleasure, or business. If, therefore, during such absence from his home he and his wife have cohabited together for a time in another place, but have previously lived together at their " home," they will (it is submitted) have "last resided together" in the place where their home is situated, and not where they last cohabited together. At the same time, if a man has no such fixed abode or home, he and his wife will have "last resided together" in the place where they last cohabited together. So, too, where a man has two homes or dwelling-houses in different places (as is possible, Orde v. Skinner, supra}, he and his wife will have " last resided together" in that one of the two homes or dwelling-houses where they last cohabited together. " District Court " : For the purposes of the Indian Divorce Act, the Divisional Court is, in the Punjab, deemed to be the District Court for all districts comprised in the division (Punjab Courts Act, 1884, s. 23 (a) ). As regards appeals from the decrees of the Judicial Commis- sioner of Oudh when exercising the powers of a district judge under Act XIII of 1879 and the Indian Divorce Act, and from the decrees of the District Court of Lucknow, see note to sect. 55, post. " Reside or last resided together " : A district judge ought in all cases to inquire into, and set out in his judgment, the facts relied on as giving jurisdiction to the Court to pronounce a decree of dissolution (Durand v. Durand, 14 W. E. 416; Wine/rove y. Wingrove, 14 W. E. 416). PRELIMINARY. 23 "Minor children": 3. " Minor children" is defined for the purposes of chap. xi. of "Minor the Act, which deals with the custody, education and mainte- children." nance of minor children, the marriage of whose parents is the subject of the particular suit. In the case of children of other than native fathers, the age of minority, for the purposes of chap, xi., is extended by this Act to a period beyond that originally adopted by the English. Divorce Court as the limit of its jurisdiction to deal with the custody, education and maintenance of the children of a mar- riage which was the subject of a suit before it. Following the decision of the Queen's Bench in Reg. y. Halves (30 L. J., Mag. Cas. 47), that a father had the right to claim the custody of his children by legal process up to the age of sixteen, the English Divorce Court held that it had no power to deal with the custody, education and maintenance of children who were above that age (Mallinson y. Mallinson, L. E., 1 P. & D. 221 ; 35 L. J., P. & M. 84 ; Ryder v. Ryder, 2 S. & T. 225 ; 30 L. J., P. & M. 44 ; Web- ster v. Webster, 31 L. J., P. & M. 184). But in the recent case of Thomasset y. Thomasset, (1894) P. 295 ; 63 L. J., P. & M. 140, the Court of Appeal in England held (overruling Blandford v. Blandford, (1892) P. 148), that the Divorce Court has jurisdic- tion to make orders respecting these matters during the whole period of a child's infancy that is to say, till the child attains the age of twenty-one years. " Incestuous adultery " : " Incestuous adultery." As regards the question with whom a man, whose former wife is dead, may lawfully contract a marriage, see note to sect. 19 (post], where the question of capacity to marry and the validity of marriages in general will be found fully discussed. " Bigamy with adultery " : " Bigamy The adultery must be with the same woman with whom the tery." bigamy was committed (Home v. Home, 27 L. J., P. & M. 50). It is not sufficient, to establish "bigamy with adultery," to prove that a ceremony of marriage has been gone through, with a certain third person ; substantive proof that adultery has also been committed with that person is absolutely necessary. Thus where all that was proved was that the respondent had gone through a form of marriage with another woman in America, and there was no evidence of any subsequent cohabitation be- tween the parties to the bigamous marriage, the Court held that 24 THE INDIAN DIVORCE ACT. 3. the mere proof of the ceremony of marriage was not sufficient to satisfy the words " bigamy with adultery " in sect. 27 of 20 & 21 Yict. c. 85 (Ellam v. Ellam, 58 L. J., P. & M. 56). Nor will adultery be inferred from bigamy alone being charged in the petition (Bonaparte v. Bonaparte, 65 L. T. 795). To establish "bigamy" as a ground for the sentence of the Divorce Court there must be proof of the performance of such a ceremony as, but for the former marriage, would constitute a valid marriage, and if the bigamy took place abroad or in a colony, proof of the marriage law of that country is necessary (Burt v. Burt, 2 S. & T. 88 ; 29 L. J., P. & M. 133). But " bigamy with adultery" is established by proof of the subsequent marriage and cohabitation, although such subsequent marriage is null and void on the ground of consanguinity (Reg. v. Penson, 5 C. & P. 412; Reg. v. Braiun, 1 0. & K. 144; cf. Gurbakhsh Singh v. Shama Singh, No. 19, Punjab Record, 1876, crim. judgments). The bigamy must be proved ; the mere proof of a conviction of bigamy not being sufficient (March v. March, 28 L. J., P. & M. 30). " Marriage with another woman." " Marriage with another woman " : Under the Indian Penal Code (sect. 494), a person "who con- tracts a marriage during the life of a former husband or wife " does not commit the offence of bigamy "if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, providing that the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of the facts so far as the same are within his or her knowledge." Under such circumstances a man who, during the life of his wife, marries another woman does not commit bigamy. But if, after such second marriage, he cohabits with such woman, or (apparently) commits adultery with any other woman, the wife is entitled, under sect. 10 of the Act, to apply for a dissolution of marriage just as she would have been entitled to apply had the husband been guilty of " bigamy with adultery." JURISDICTION. 25 II. Jurisdiction, 4. The jurisdiction now exercised by the High Courts Matrimonial in respect of divorce a mensd et tore, and in all other High Courts 3 causes, suits and matters matrimonial, shall be exercised *? b ? ex , c y~ , cised. subject by such Courts and by the District Courts subject to to this Act - the provisions in this Act contained, and not otherwise : except so far as relates to the granting of marriage licences, which may be granted as if this Act had not been passed. Jurisdiction. (1) The Select Committee purposely refrained Jurisdiction, from inserting in the Act a clause conferring on the High Courts the special jurisdiction which is vested in the Divorce Court in England by the Legitimacy Declaration Act, 1858 (21 & 22 Viet. c. 93). That statute enables the Court in England to make declarations of the validity or invalidity of a marriage, or of the legitimacy or illegitimacy of children; but the Select Committee, after carefully considering the matter, refused to confer such jurisdiction on the High Courts, out of deference to the authority of Sir Barnes Peacock, C. J., and Mr. Justice Norman, who gave weighty reasons against the insertion of any such clause. Nor have the Courts in India jurisdiction to entertain suits in respect of "jactitation of marriage,'" i.e., suits to enforce per- petual silence on the person who falsely gives out that he or she is married to the complainant (see the Matrimonial Causes Act, 1857, sect. 6, for the jurisdiction of the English Divorce Court to entertain such suits). (2) The jurisdiction in matrimonial causes exercised by the High Courts previously to the enactment of this Act was that conferred upon them (in virtue of 24 & 25 Viet. c. 104) by their respective charters, and extended to all Christian subjects of the Crown within the respective provinces, nothing being said, however, about the matrimonial law to be administered (see Lopez v. Lopez, I. L. E., xii Calc. at pp. 725, 726; see the note to sect. 1, ante]. " Subject to the provisions in this Act contained " : "Subject to To give jurisdiction in matrimonial suits under this Act it is necessary in all cases (i) that the petitioner prof ess the Christian 26 THE INDIAN DIVORCE ACT. 4. religion and be residing in India at the time of presenting the petition; (ii) that the parties to the marriage have "last resided together" within the jurisdiction of the particular Court in which the suit is instituted ; and (iii) semble, that the marriage between the parties to the suit is one of a kind recognized as such by the Courts of Christian countries (see note (d) to sect. 2). Tn addition to the above requirements, it is further necessary (a) in suits for dissolution of marriage, that the marriage shall have been solemnized in India, OR that the adultery, rape, or unnatural crime complained of shall have been committed in India, on that the husband shall have, since the solemnization of the marriage, exchanged his profession of Christianity for that of some other form of religion ; and (b) in suits for nullity of marriage, that the marriage shall have been solemnized in India. The petitioner may present his petition either to the High Court or the District Court having original jurisdiction to try suits under this Act, within whose jurisdiction under the Act the husband and wife." last resided together." Under sect. 8 of the Act, however, ' ' the High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction, any suit or proceeding instituted under this Act, in the Court of any district judge within the limits of its jurisdiction under this Act." And "the High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such district judge." Moreover, under sect. 17 of the Act, " during the progress of the suit in the Court of the district judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under sect. 8, and the High Court shall thereupon, if it think fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in sect. 16 shall apply to every suit so removed ; or it may direct the district judge to take such steps in respect of the alleged collusion as may be necessary to enable it to make a decree in accordance with the justice of the case." A petition for dissolution or nullity of marriage may be presented to such District Court, but in such suits every decree made by the district judge dissolving or annulling the marriage is subject to confirmation by the High Court, and the provisions JURISDICTION. of sect. 17 (with the exception, in the case of a decree for nullity 4. of marriage, of clause 5) apply to all such decrees. If the district judge dismiss a petition for dissolution or nullity of marriage, the petitioner may appeal to the High Court, but there is no such appeal from a decree of a district judge dissolving or annulling the marriage, nor from the order of the High Court confirming, or refusing to confirm, such decree. Except as above stated, all decrees and orders made by the district judge in any suit or proceeding under this Act may be appealed from in the like manner as the decrees and orders of such judge made in the exercise of his original civil jurisdiction may be appealed from under the laws, orders and rules for the time being in force (sect. 55 of the Act). But there is no appeal on the subject of costs alone. In a suit for dissolution of marriage instituted in the District Court, any person may intervene, during the progress of such suit, as provided in sect. 17. There is, however, no provision made in the Act for such intervention during the interval between the decree of the district judge and the time (not less than six months thereafter) when the case comes on before the High Court for confirmation. If, on the other hand, the suit is instituted, in the High Court, any person is at liberty to inter- vene at any time after the pronouncing of the decree nisi and before such decree is made absolute. But in this case interven- tion is not allowable during the progress of the suit previous to the pronouncing of the decree nisi. When a petition is presented to a district judge, the facts relied on as giving jurisdiction to the Court should appear on the face of the record, and the judge should in all cases inquire into such facts and set them out in his judgment (Durand v. Durand, 14 W. E. 416 ; Wingrove v. Wingrove, ib.}. As regards petitions for dissolution of marriage presented to a High Court, if the Court is satisfied on the evidence that the case of the petitioner is proved, and does not find that the petitioner has been guilty of conduct specified in sect. 14 as disentitling him or her to the relief prayed for, the Court shall pronounce a decree nisi declaring the marriage dissolved. After the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order, from time to time directs, the decree nisi may, on the motion of the petitioner, be made absolute. But unless the petitioner moves the Court within a reasonable time to have the 28 THE INDIAN DIVORCE ACT. 4. decree nisi made absolute, the High Court may dismiss the suit ~ (sect. 16). If after a decree nisi has been pronounced, and before it has been made absolute, any person intervenes, the High Court may pass such order or decree thereon as justice demands, and may order the costs arising from such intervention to be paid by the parties, or such one or more of them, as it thinks fit. Every such order or decree is appealable in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are appealable, provided that there is no appeal on the subject of costs only. A decree nisi or decree absolute made by the High Court, and all other decrees and orders made by such Court in any suit or proceeding under this Act, are appealable in the like manner (sect. 55). Moreover, by sect. 56, "any person may appeal to Her Majesty in Council from any decree (other than a decree nisi) or order under this Act of a High Court made on appeal or otherwise, and from any decree (other than a decree nisi) or order made in the exercise of original jurisdiction by judges of a High Court or of any Division Court from which an appeal shall not lie to the High Court, when the High Court declares that the case is a fit one for appeal to Her Majesty in Council." Under that section an appeal lies (with the leave of the High Court) to Her Majesty in Council from the order of the High Court confirming, or refusing to confirm, the decree of a district judge for dissolution, or of nullity, of marriage. Review of Revieic of Judgment. judgment. Neither the Indian Divorce Act nor the Civil Procedure Code (by which, subject to the provisions of the Act itself, all pro- ceedings under the Act are to be regulated : sect. 45, Indian Divorce Act) makes any provision for the grant of new trials. But by sect. 623 of the Civil Procedure Code, 1882, " any person considering himself aggrieved " by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, " and who, from the discovery of new and important matter or evi- dence, which, after the exercise of due diligence, was not within his knowledge, or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the JURISDICTION. 29 decree passed or order made against him, may apply for a 4. review of judgment to the Court which passed the decree or ~ made the order, or to the Court, if any, to which the business of the former Court has been transferred. ' ' A party who is not appealing from a decree may apply for a review of judgment, notwithstanding the pendency of an appeal by some other party, except when the ground of such appeal is common to the applicant and the appellant, or when, being the respondent, he can present to the Appellate Court the case on which he relies for the review." But sect. 624 provides that, " except upon the ground of the discovery of such new and important matter or evidence as aforesaid, or of some clerical error apparent on the face of the decree, no application for a review of judgment, other than that of a High Court, shall be made to any judge other than the judge who delivered it." The rules laid down in the Civil Procedure Code as to the form of making appeals apply, mutatis mutandis, to applications for review (sect. 625). An application for review of judgment must be filed within Limitation, ninety days from the date of the decree or order, when such decree or order is that of a District Court or of the High Court, otherwise than in the exercise of its original jurisdiction, and within twenty days from the date of the decree or order when such decree or order is that of the High Court in the exercise of its original jurisdiction (Limitation Act, 1877, 2nd sch., arts. 162 and 173). The Court fee on an application for review of judgment is the Court fee on fee leviable on the plaint or memorandum of appeal, unless such application, application is presented before the ninetieth day from the date of the decree, when it is one-half of such fee (Court Fees Act, 1870, 1st sch., arts. 4, 5). " If it appears to the Court that there is not sufficient ground for a review, it shall reject the application. " If the Court be of opinion that the application for a review should be granted, it shall grant the same, and the judge shall record with his own hand his reasons for such opinion. "Provided that (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree, a review of which is applied for ; and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was 30 THE INDIAN DIVORCE ACT. 4. passed, without strict proof of such, allegation ; and (c) an application made under sect. 624 to the j udge who delivered the judgment may, if that judge has ordered notice to issue under proviso (a) to this section, be disposed of by his successor" (sect. 626, Civil Procedure Code). It is not sufficient for an applicant to merely state in his affidavit that he did not know of the existence of the new evidence ; he must also state he had used due diligence and made all proper inquiries (Seetanath Ghose v. Shama Sorndari, 14 W. E. 26). As to what constitutes " other sufficient reason" for granting an application for review other than the grounds specified in sect. 623 of the Code their Lordships of the Privy Council have held that it is not " an absolute defect of jurisdiction when- ever the parties have failed to show that there was either posi- tive error in law or new evidence to be brought forward which could not be brought forward on the first hearing. They do not consider the case cited in the Indian Jurist .... and the other cases cited, limit the discretion of the Court in saying what reason is good and sufficient, or what may be so far requi- site to the ends of justice as to support an application for review. Upon an appeal, where an appeal lies, it may be open to the Court of Appeal to say that the judge ought not to have ad- mitted a review ; that is a different thing from ruling that he has acted wholly without jurisdiction" (Reasut v. AbdoolaJi, L. E., 3 Ind. App. 221 ; I. L. E., 2 Calc. 140). ' ' When an application for a review is granted, a note thereof shall be made in the register, and the Court may at once rehear the case or make such order in regard to the rehearing as it thinks fit" (sect. 630, Civil Procedure Code). When a review is granted, the Court possesses a discretion as to how far the whole case is to be reopened. In each case it must consider whether the review is necessary to correct any error or omission, or is otherwise requisite for the ends of justice, and there is no rule that no point can be raised on review which has already been decided at the original hearing, or that no new point which has not been raised at the hearing can be argued on review (Chinta Monee v. PeareeMonee, 15 W. E. (P. B.) 1). " An order of the Court for rejecting the application shall bo final ; but whenever such application is admitted, the admission may be objected to on the ground that it was (a) in contra- vention of the provisions of sect. 624 ; (b) in contravention of the provisions of sect. 626; or (c) after the expiration of the JURISDICTION. 31 period of limitation prescribed therefor and without sufficient 4. cause. " Such objection may be made at once by an appeal against the order granting the application, or may be taken in any appeal against the final decree or order made in the suit. " When the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, if it be proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court may order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. " No order shall be made under this section unless the appli- cant has served the opposite party with notice in writing of the latter application. "No application to review an order passed on review or on an application for review shall be entertained " (sect. 629, Civil Procedure Code). Except as provided, and for the reasons specified in the above section, no appeal lies from an order granting a review (Bombay and Persian Steam Navigation Co. v. ss. " Zuari," I. L. E., xii Bomb. 171; Har Nandan Sahai v. Behari Sing, I. L. E., xxii Calc. 3 ; Baroda Churn v. Oorind Proshed, I. L. E., xxii Calc. 984; Duryai BM v. BadriPrasad, I. L. E., xviii All. 44 ; Dharm Singh v. Deiva Singh, No. 62, Punjab Record, 1895). 1 ' Obj ections to j urisdiction ' ' : Objections to jurisdiction. There is a distinction between cases in which a Court has no inherent jurisdiction in the suit and those in which the Court is competent to try the cause, but there are irregularities in the initial procedure. As regards the former class of cases, no con- sent or acquiescence on the part of the parties can convert the proceedings before the Court into a judicial process, whereas, in the latter case, if the parties join issue and go to trial upon the merits, neither party can afterwards dispute the jurisdiction of the Court on the ground of those irregularities which, if objected to at the time, would have led to the dismissal of the suit (Ledgard v. Bull,~L. E ., 13 Ind. App. 134 ; I. L. E., ix All. 191). If, however, a Court which has no inherent jurisdiction therein entertains and decides a suit, the decree will be set aside on that ground by the Appellate Court, although the point of juris- THE INDIAN DIVORCE ACT. 4. diction was not raised in the lower Court (Har Narain v. ~~ Bhagivant Kaur, I. L. E., xiii All. 300). But, except in cases in which the Court has no inherent juris- diction, it is a general rule that if the parties have put in an absolute appearance, it is too late to plead to the jurisdiction of the Court (Zydinski v. Zydinski, 2 S. & T. 420; 31 L. J., P. & M. 37). Nor can the respondent be permitted to withdraw such appearance in order to enter an appearance under protest to enable him to plead to the jurisdiction (Moore v. Moore, 5 Ir. E. Eq. 371). The respondent may, however, in his answer on the merits, allege facts raising the question of jurisdiction ( Wilson v. Wilson and Howdl, 2 L. E., P. 341 ; 41 L. J., P. & M. 1). So, it has been held that it is not absolutely necessary to raise the question of domicil in the pleadings, and that the Court can allow such question to be raised at the hearing if the evidence adduced points to a doubt as to the Court's jurisdiction (Parkin- son v. Parkinson, 69 L. T. 53 ; cf . Forster v. Forster and Berridge, 3 S. & T. 144; 31 L. J., P. & M. 185). But, according to Eule 22 of the Eules and Eegulations of the English Divorce Court, if a party wishes to raise any question as to the jurisdic- tion of the Court, he or she must enter an appearance under protest, and after the entry of an absolute appearance to the citation, a party cited cannot raise any objection to the juris- diction of the Court (cf. Garstin v. Garstin, 34 L. J., P. & M. 45). The Court is not debarred from ordering alimony pendente lite to be paid to a wife, because there is a plea to the jurisdiction of the Court (Ronalds v. Ronalds, L. E., 3 P. 259). 5, Any decree or order of the late Supreme Court of Judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the exercise of their matrimonial juris- diction, respectively, in any cause or matter matrimonial, may be enforced and dealt with by the said High Courts, respectively, as hereinafter mentioned, in like manner as if such decree or order had been originally made under this Act by the Court so enforcing or deal- ing with the same. Pending suits. g < All suits and proceedings in causes and matters Enforcement of decrees or orders hereto- Supreme'or 5 " High Court. JURISDICTION. 33 matrimonial, which when this Act comes into operation 6. are pending in any High Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act. 7, Subject to the provisions contained in this Act, Court to act f t on principles the High Courts and District Courts shall in all suits of English and proceedings hereunder, act and give relief on prin- Court ciples and rules which, in the opinion of the said Courts^ are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matri- monial Causes in England for the time being acts and gives relief. " Principles and Rules of English Divorce Court :" Principles and rules of As regards matters of procedure, all proceedings under the English Indian Divorce Act between party and party are to be regu- Divorce lated (subject to the express provisions of the Act itself) by the our ' Code of Civil Procedure (sect. 45, infra]. In all matters, there- fore, which are provided for in the Code, the Courts must regulate their procedure in accordance with the provisions therein contained, and not with the Eules and Regulations of the Court for Divorce and Matrimonial Causes in England (Abbott v. Abbott and Crump, 4 B. L. E., 0. C. 51). But, in the absence of any provision on the subject in the Code, sect. 7 enables the Courts of this country to follow, so far as is possible, the practice of the English Court, and it has therefore been thought convenient to append to this edition of the Act the Eules and Eegulations of that Court (see Appendix (G) ). The decisions of the Probate and Divorce Court in England must be taken to be a guide to the Courts in India under the Indian Divorce Act, except when the facts of any particular case, arising out of the peculiar circumstances of Anglo-Indian life, constitute a situation such as the English Court is not likely to have had in view (Fowle v. Fowle, I. L. E., iv Calc. 260). 8. The High Court may, whenever it thinks fit, Extraordi- r\ L 1 nar y juris- remove and try and determine, as a Court 01 original diction of jurisdiction, any suit or proceeding instituted under this lg R. D 34 THE INDIAN DIVORCE ACT. 8. Act in the Court of any district judge within the limits of its jurisdiction under this Act. Power to rphe jj^jj Q our t m ay also withdraw any such suit or transier suits. proceeding, and transfer it for trial or disposal to the Court of any other such district judge. During the progress of a suit for dissolution of marriage in the Court of a district judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under sect. 8, and the High Court shall thereupon, if it think fit, remove such suit, and try and determine the same as a Court of original jurisdiction, and the provisions contained in sect. 16 shall apply to every suit so removed ; or it may direct the district judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case (sect. 17, post}. Reference to 9 t "When any question of law or usage having: the High Court. . force of law arises at any point in the proceedings pre- vious to the hearing of any suit under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the case and refer it, with the Court's own opinion thereon, to the decision of the High Court. If the question has arisen previous to or in the hear- ing, the District Court may either stay such proceedings, or proceed in the case pending such reference, and pass a decree contingent upon the opinion of the High Court upon it. If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court upon such reference. DISSOLUTION OF MARRIAGE. 3-5 III. Dissolution of Marriage. 10, Any husband may present a petition to the Whenhus- District Court or to the High Court, praying that his petition for marriage may be dissolved, on the ground that his wife has, since the solemnization thereof, been guilty of adultery. Any wife may present a petition to the District Court When wife , TT . _. . . may petition or to the High Court, praying that her marriage may fordissolu- be dissolved on the ground that, since the solemnization 10D ' thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman ; or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would entitle her to a divorce a mensd et toro ; or of adultery coupled with desertion, without reason- able excuse, for two years or upwards. Every such petition shall state, as distinctly as the Contents of nature of the case permits, the facts on which the claim to have such marriage dissolved is founded. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), sect. 27, provides that : ' ' It shall be lawful for any husband to present a petition to the said Court praying that his marriage may be dis- solved, on the ground that his wife has, since the celebra- tion thereof, been guilty of adultery; and it shall be lawful for any wife to present a petition to the said Court, praying that her marriage may be dissolved, on the ground that, since the celebration thereof, her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy or bestiality, or of adultery coupled with such cruelty as would have entitled her to a divorce a mensd et thoro, or of adultery coupled with desertion, D2 36 THE INDIAN DIVORCE ACT. 10. without reasonable excuse, for two years or upwards ; and every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded : provided that, for the pur- poses of this Act, incestuous adultery shall be taken to mean adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity or affinity ; and bigamy shall be taken to mean marriage of any person, being married, to any other person during the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of Her Majesty or elsewhere." (i) " Any husband Any wife :" Jurisdiction of Court. In order to give jurisdiction to the Courts of British India to entertain a suit for dissolution of marriage, it is necessary that (a) the petitioner should profess the Christian religion and be residing in India at the time of presenting the petition ; (b) that the marriage, of which dissolution is prayed, should be of a kind recognized as such by the Courts of Christian countries (see ante, p. 3) ; and (c) that either the marriage shall have been solemnized in India, or that the adultery, rape, or unnatural crime complained of, shall have been committed in India, or that the husband shall have, since the solemnization of the marriage, exchanged his profession of Christianity for that of some other religion. In addition to the above requirements, it is necessary to give jurisdiction to the particular Court (whether District or High Court) that the parties to the marriage shall have last resided together within the limits of such Court's jurisdiction (section 3, ante, pp. 17, 18). \Vhen the husband or wife is a lunatic or idiot, a suit for wife a lunatic, dissolution of marriage may be brought on his or her behalf by ' the committee or other person entitled to his or her custody (sect. 48, post). When the petitioner is a minor, he or she must sue by his or her next friend to be approved of by the Court ; and no petition presented by a minor under this Act shall be filed until the next friend has undertaken in writing to be answerable for costs. Such undertaking must be filed in Court, and the next friend shall thereupon be liable in the same manner, and to the same extent, as if he were a plaintiff in an ordinary suit (sect. 49, post). Husband or DISSOLUTION OF MARRIAGE. 37 (ii) " May present a petition : " 10. (a) The Court Fee Stamp c urfc fee stamp, on a petition for dissolution of marriage is one of Bs. 20 (Court Foes Act, 1870, 2nd Sch., Art. No. 20). (b) Agreement in bar of Suit Compromise of Suit. Agreement in In England it has been held that a suit for dissolution of bar of suit ' marriage may be compromised, and that if the husband or wife has agreed for good and valuable consideration, uninfluenced by fraud or mistake, to withdraw from a suit for dissolution, such party cannot afterwards, in violation of such agreement, sue in respect of the misconduct upon which the former suit was based, the right to complain in respect thereof having been bargained away (Sterbini v. Sterbini, 39 L. J., P. & M. 82; Hooper v. Hooper, 3 S. & T. 251 ; Rowley v. Rowley, L. B.., 1 H. L. 63; 35 L. J., P. & M. 110). But such agreement, unless followed by cohabitation, does not amount to condonation of the misconduct ; and, by sect. 14 of the Act, if the Court does not find that the petitioner has been guilty of certain specified acts, it "shall" pronounce a decree nisi in his favour. At the same time it may be that sect. 7 gives the Courts a discretion in the matter, of which they will avail themselves, to follow the practice of the English Courts of Equity and Divorce. (c) Res judicata Estoppel. The principles of estoppel and of res judicata applicable to Resjudieata ordinary civil suits apply equally to matrimonial suits; there- estoppel, fore a judgment of the Court upon a matter directly in issue ia conclusive upon the same matter between the same parties in another suit. A party whose petition has been dismissed in a former suit, cannot in a subsequent suit set up matters pre- viously found against him or her (Sopwith v. Sopwith, 2 S. & T. 160 ; 30 L. J., P. & M. 131 ; Finney v. Finney, L. B., 1 P. 483; 37 L. J., P. & M. 43). But if the petition has been allowed to be withdrawn upon the application of the petitioner, the latter will not be estopped from setting up the same acts of adultery, upon which his first peti- tion was based, in a suit subsequently instituted by him (Hall v. Hall, 48 L. J., P. & M. 57). [See further on this subject, Appendix (D).] 38 THE INDIAN DIVORCE ACT. 10. Abatement of suit : (a) death of petitioner : (b) death of respondent : (c) death of co-respon- dent. (d) Abatement of Suit. On the death of the petitioner at any time before decree abso- lute, a suit for dissolution of marriage will abate ; and if the petitioner dies after a decree nisi has been pronounced, but before it has been made absolute, the legal representative of the petitioner cannot revive the suit for the purpose of applying to make the decree absolute (Stanhopes. Stanhope, 11 P. I). 103; 55 L. J., P. & M. 36; Grant y.Grant and Boivles, 2 S. & T. 522 ; 31 L. J., P. & M. 174 ; Beavan v. Beavan, 2 S. & T. 58 ; 28 L. J., P. & M. 127). The suit will also abate on the death of the respondent at any time before the decree absolute ; but in such an event the Court will not, on the application of the petitioner, order that the peti- tion and affidavit in support be removed from the files of the Court (Brocas v. Brocas, 2 S. & T. 383; 30 L. J., P. & M. 172). A suit for dissolution of marriage does not abate on the death of a co-respondent pending the suit, but application should be made by motion to strike out his name from the petition (Sttttou v. Sutton and Peacock, 32 L. J., P. & M. 156). Insanity of respondent. (e) Insanity of Respondent. The insanity of the respondent at the time of institution of the suit is no ground for staying proceedings therein (Mordaunt V. Moncrie/e, L. E., 2 H. L. (Sc.) 374 ; 43 L. J., P. & M. 49). Nor is a mere plea of insanity a sufficient answer to a suit for dissolution. Accordingly, where in a suit by the husband for dissolution of marriage on the ground of his wife's adultery, the guardian ad litem of the wife, the wife herself being insane at the time pleaded that if she had committed adultery she was not of sound mind or responsible for her actions, and was in- capable of either understanding the guilty nature of her acts or of legally consenting to them, it was held that although the wife might have been subject to insane delusions on some points, yet if at the time that she committed adultery she was capable of appreciating the nature of the act and its probable consequences, her insanity would afford no sufficient defence to the petition (Farrow v. Yarrotv, (1892) P. 92). But ' ' it may be that a person is so insane as to necessitate his or her confinement in an asylum or some other place of perma- nent detention, and the disease may be such that there is no hope of recovery or amelioration such as will allow of his or her discharge. When a disease of that sort seizes upon a person, DISSOLUTION OF MARRIAGE. 39 and lie or she has to be incarcerated or permanently to be placed 10. in confinement, I should hesitate to say that, in regard to an " act committed in such a state of insanity, a plea of insanity might not be an answer. But I think it is very different with regard to intermittent and recurrent insanity" (Butt, J., Han- lury v. Hanlury, (1892) P. 222). "Wife has, since the solemnization of the marriage, been Adultery on guilty of adultery ' ' : P art of wife - In a suit for dissolution of marriage on the ground of the wife's adultery, the ante-nuptial incontinence of the wife cannot be pleaded, even though it and the adultery charged are alleged to have been committed with the same person (Fitzgerald v. Fitzgerald, 32 L. J., P. & M. 12). As to proof of adultery, see Appendix (0). " Wife's petition for divorce " : Suit by wife, In a suit by a wife for dissolution of marriage, if the facts ^ m proved are only sufficient to entitle her to a judicial separation, it is competent for the Court to grant the latter, although the petitioner only prays for dissolution (Smith v. Smith, 1 S. & T. 359). But if in such a case she refuses to amend her petition by praying for judicial separation, the petition will be dismissed (Rowley v. Rowley, 4 S. & T. 137 ; 12 L. T. 505). (a) " Husband has, since the solemnization of the mar- (a) Husband's riage, exchanged his profession of Christianity an^marrkge for that of some other religion, and gone through with another a form of marriage with some other woman " : See p. 15, ante. The mere fact that the husband has exchanged his profession of Christianity for that of some other form of religion is not a sufficient ground for dissolution of the marriage : it is also necessary that he should thereafter have gone through a form of marriage with another woman. But it is not necessary to prove that he has committed adultery either with such woman or any other woman. This clause was inserted in consequence of the decision of the Madras Court to the effect that a Hindu who, after his conver- sion to Christianity and contraction of a Christian marriage, reverted to Hinduism, re-acquired his rights of polygamy ( Anon., 3 Mad. App. 7). 40 THE INDIAN DIVORCE ACT. 10. (b) " Or has been guilty of incestuous adultery " : Incestuous For the definition of " incestuous adultery," see sect. 3, ante, adultery. p 19) an( j ag ^ o w h a f; s meant by the term "prohibited de- grees," see sect. 19 (2), and note thereto, post. Upon a wife's petition charging the respondent with incestuous adultery with his own child, a girl aged thirteen, it appeared that a jury in a criminal court had acquitted him of the more serious charge, but had convicted him of an attempt to carnally know the child. The Court, notwithstanding the certificate of conviction, allowed evidence to be given to prove that the in- cestuous adultery had in fact taken place ( Virgo v. Virgo, 69 L. T. 460). Bigamy with ( c ) " Or of bigamy with adultery ": adultery. Marriage with another woman with adultery. Rape. Conviction in criminal court. As to this, see sect. 3, and note thereto, ante, p. 23. (d) "Or of marriage with another woman with adultery" : As to this, see sect. 3, and note thereto, ante, p. 24. (e) " Or of rape " : "A man is said to commit 'rape,' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions : "First against her will ; ''Secondly without her consent ; "Thirdly with her consent, when her consent has been obtained by putting her in fear of death or of hurt ; "Fourthly with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom, she is, or believes herself to be, lawfully married ; "Fifthly with or without her consent, when she is under twelve years of age. "Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. " Exception. Sexual intercourse by a man with his own wife, the wife not being under twelve years of age, is not rape " (Indian Penal Code, sect. 375). In a suit for dissolution of marriage on the ground that the husband has been guilty of rape, the rape must be duly proved, and a proof of a conviction for rape in a criminal court is not sufficient (March v. March, 28 L. J., P. & M. 30). Although, as a general rule, a petitioner who has been found DISSOLUTION OF MARRIAGE. 41 guilty of adultery will not be entitled to a decree for dissolution 10. of marriage, the Court, in Collins v. Collins (9 P. D. 231 ; 53 L. J., P. & M. 116), granted a wife, who had in a previous suit been found guilty of adultery, a decree nisi for dissolution on the ground that her husband had been found guilty of rape subsequently to her own misconduct. (f ) " Or of sodomy or bestiality " : Sodomy or A man commits sodomy or bestiality who "voluntarily has ' 3estiallt 7' carnal intercourse against the order of nature with any man, woman, or animal" (Indian Penal Code, sect. 377). When a husband has carnal intercourse against the order of nature with his own wife, she not being a consenting party, he is guilty of sodomy within the meaning of sect. 10 of the Indian Divorce Act, and the wife is entitled to a decree of dissolution of marriage (No. 68, Punjab Record, 1882, civil judgments full Bench). But the evidence in support of such a charge must be cogent and corroborated, and a wife's evidence of unnatural connection, had or attempted to be had with her by her hus- band, is not sufficient to establish the charge (N v. N , 3 S. & T. 234). (g) " Or of adultery coupled with such cruelty as without Adultery and adultery would have entitled her to a divorce a Cruelt 7- mensd et toro " : As to pleading cruelty, see Appendix (E), p. 345. The question as to what constitutes legal cruelty has recently Cruelty, been elaborately discussed by the English Court of Appeal in the case of Russell v. Russell* (1895) P. (C. A.) 315; 64 L. J., P. & M. 105). The following extract from the judgment of Lord Justice Lopes (Lindley, L.J., concurring, Rigby, L.J., diss.), will, it is hoped, prove of value in the elucidation of that difficult question : . To constitute legal cruelty "there must be danger to life, Russell v. limb or health, bodily or mental, or a reasonable apprehension of it. We propose to test this definition by some of the more important cases that have been decided on the subject Evans v. Evans (1 Hagg. Cas. 38), decided by Lord Stowell in 1790, is the leading case on the subject. As we read that case, no husband could be found guilty of legal cruelty towards his wife unless he had either inflicted bodily injury upon her, * The decision of the Court of Appeal in this case has been upheld by the House of Lords (see Times newspaper of July 17, 1897). 42 THE INDIAN DIVOECE ACT. 10. or had so conducted himself towards her as to cause actual " cruelty." injury to her mental or bodily health, or so as to raise a reason- able apprehension that he would either inflict actual bodily injury upon her, or cause actual injury to her mental or bodily health. In a word, he must so have conducted himself towards her as to render future cohabitation more or less dangerous to her life or limb, or mental or bodily health. There are some expressions in that most admirable judgment of Lord Stowell to which we would wish to refer. At page 30, the learned judge says : ' What merely wounds the mental feelings is in few cases to be admitted, when they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offences in the marriage state undoubtedly, not innocent, surely, in any state of life, but they are not that cruelty against which the law can relieve.' At page 39, the learned judge sums up what he had previously said, thus : ' These are negative descriptions of cruelty ; they show only what is not cruelty, and yet, perhaps, the safest definitions which can be given under the infinite variety of possible cases that may come before the Court. But if it were at all necessary to lay down an affirmative rule, I take it that the rule cited by Dr. Bever, from Clarke and the other books of practice, is a good general outline of the canon law, the law of this country, upon this subject. In the older cases of this sort, which I have had an opportunity of looking into, I have observed that the danger to life, limb or health is usually inserted as the ground upon which the Court has proceeded to a separation. This doctrine has been repeatedly applied by the Court in the cases that have been cited. The Court has never been driven off this ground. It has always been jealous of the inconvenience of departing from it, and I have heard no one case cited in which the Court has granted a divorce without proof of a reasonable apprehension of bodily hurt. I say an apprehension, because, assuredly, the Court is not to wait till the hurt is actually done ; but the apprehension must be reasonable.' This was the state of the law in 1790, and we venture to say that the doctrine there enunciated as to what constituted legal cruelty has never been materially altered. At that time no amount of want of civility, rudeness, insult or abuse, however gross, which did not affect life, limb, or mental DISSOLUTION OF MARRIAGE. 43 or bodily health, or where there was not a reasonable apprehen- 10. sion of its so doing, was considered by the ecclesiastical tribunals "cruelty." to amount to legal cruelty, and that though the parties were at ~ the time cohabiting. So far as we can ascertain, the authority of the case of Evans v. Evans has never been questioned Before the Divorce and Matrimonial Act, 1857, and since the passing of that Act, the same rule with regard to what consti- tutes legal cruelty has been followed by Sir Cresswell Cresswell, Lord Penzance and Sir James Hannen ; and Sir Charles Butt in December, 1891, at the trial of the case of Russell v. Russell, when the present petitioner sued for a j udicial separation on the ground of cruelty, said, in laying down the law to the jury, that cruelty had been very often defined as injury causing danger to life or limb or health, or causing reasonable apprehension of danger to life or limb or health ; and it is, generally speaking, where the continuation of the conduct charged would be likely to produce injury, either bodily or mental, or injury to health without any physical violence, that this Court interposes to protect the wife. There is no case in the books where words alone, however violent, however galling, and even if imputing a crime of the most disgraceful kind, have been held per se to constitute legal cruelty, and this when the parties were cohabiting as husband and wife. The case of Bray v. Bray (1 Hagg. Eccl. 167) is a case which, so far as we can discover, has never been cited or followed as. an authority, and is contrary to Gale v. Gale, subse- quently referred to. Bray v. Bray was a decision only with regard to admitting an article." The learned Lord Justice, after referring to some of the more important cases on the subject, proceeds to consider the obser- vations of Lord Brougham in the case of Patterson v. Patterson (9 H. L. Gas. 308) : " Lord Brougham, at page 328, says < that if a man were continually charging his wife with every sort of immorality and criminal conduct, and there were not a shadow of foundation for the charges, made before her family, her friends, relatives and servants, and in the face of the world, there was little doubt that what then rested only upon opinions would ulti- mately assume the form of decisions, and that to such injurious treatment, making the marriage state impossible to be endured, and rendering life almost unbearable, the Courts of the country would extend the remedy of a divorce a memo, et thoro.' These, however, were obiter dicta, and were not necessary for the deci- sion Again, at p. 318, Lord Brougham says this: ' That the ground of the remedy is confined to personal violence is not the law of England and certainly not the law of Scotland. THE INDIAN DIVORCE ACT. 10. 'cruelty." Charge of unnatural offence : or of immo- rality. .... It is not true that the law of England either requires actual injury to the person or threat of such injury.' "We pre- sume that this means that a reasonable apprehension of danger to life, limb or health, bodily or mental, will suffice without any actual injury or threat of it " (cf. MunsM Buzloor Rahim v. Shumsoonim Begam, xi M. I. App. 551 ; and Milford v. Milford, L. E., 1 P. & D. 295 ; 36 L. J., P. & M. 30, and in app. 37 L. J., P. &M. 77). In the opinion of the majority of the Court, there- fore, and upon the weight of authority, to constitute legal cruelty there must be danger to life, limb or health, bodily or mental, or a reasonable apprehension of such danger. Lord Justice Eigby, however, dissented from this statement of the law on the ground that personal danger was not in all cases absolutely necessary, and that, although what fell short of such danger or such apprehension of it was to be admitted with great caution, there might be exceptional cases in which, without bodily injury or threat of it, injury to the mental feelings might be sufficient to constitute legal cruelty. In Russell v. Russell (supra) it was held (per Lindley and Lopes, L.JJ., Eigby, L.J., diss.) that for a wife, who had in a suit for judicial separation charged her husband with the com- mission of an unnatural offence, to persist in the charge after the husband had in such suit been acquitted thereof by the verdict of the jury, and to refuse to retract or apologize therefor, did not constitute legal cruelty, even though a jury found as a matter of fact that she had not a bond fide belief in the truth of such charge. So, too, in Gale v. Gale (2 Eobert. Eccl. Eep. 421), it was held that a charge of having committed incest was not per se sufficient to constitute legal cruelty, though, coupled with averments of a substantial character, it might form part of the libel. In Bray v. Bray (1 Hagg. Eccl. 167), however, Sir John Nicholl said that, in his opinion, it was not possible to conceive cruelty of a more grievous character (except, per- haps, great personal violence) than an accusation of incest made by a husband against his wife. But the decision in this case, though approved of by Lord Justice Eigby, did not commend itself to the majority of the Court of Appeal in the case of Russell v. Russell (supra). Nor does the bringing by the husband of malicious and groundless charges against his wife's chastity amount in itself to legal cruelty, though it will weigh with the Court in con- junction with other matters (Durrani v. Durrani, 1 Hagg. Eccl. DISSOLUTION OF MARRIAGE. 45 Rep. 752). But if a person has ill-treated his wife, and been 10. guilty of acts of violence and words of menace, and finally "cruelty." has made a charge of misconduct and criminality which he has not attempted to prove or even to allege, and under that pretence has shut his door against her, it cannot be doubted that such conduct would be admissible matter in a suit for separation by reason of cruelty (/&.). A false charge by a husband against his wife of adultery, False charge although such charge is made wilfully, maliciously, and without ^ adultery, reasonable or probable cause, is not an act amounting at law to cruelty, so as to entitle the wife to a judicial separation (Augua- tin v. Augustin, I. L. E., iv All. 374). Where, however, the acts of cruelty alleged are not of great Acts evincing violence, but evince a lack of self-control and of indignity, they **** ^ se ^~ may amount to legal cruelty (Waddell v. WaddM, 2 S. & T. 584; 31 L. J., P. & M. 123). So, where a man assaulted his wife in the public street without inflicting personal injury, but the assault was quite sufficient to show that the husband was unable to control himself, and could not be trusted not to break out into violence towards his wife, and he had by his conduct and filthy language led a passer-by to take her for a common prostitute and to insult her, it was held that he had been guilty of " the most abominable cruelty" (Milner T. Milner, 4 S. & T. 240; 31 L. J., P. & M. 159). Cruelty is in its character a cumulative charge. It must be sustained, and evince a continued want of self-control, and it must be referable to permanent causes so as to endanger the future safety of the wife's person or health, and therefore, where the charges were confined to three days alone of a cohabitation of three years, the Court held that the legal offence of cruelty had not been established (Plowden v. Plowden, 23 L. T. 266 ; 18 W. E. 902). As regards acts of physical violence, the general rule is that to constitute legal cruelty they must be of such a nature as to show that further cohabitation is unsafe, and whatever may be the cause or motive of a husband's misconduct, the wife is entitled to the protection of the Court if cohabitation is rendered unsafe, unless she is herself greatly to blame (Curtis v. Curtis, 1 S. & T. 192 ; 27 L. J., P. & M. 73 ; in app., 28 L. J., P. & M. 55; McKeever v. McKeever, 11 Ir. E. Eq. 26). A single act of violence by a husband towards his wife, Single act of not producing any considerable injury to the person, and not Tlolence - repeated, is not, although unwarrantable, sufficient to found 46 THE INDIAN DIVORCE ACT. 10. a decree of judicial separation (Smallwood v. Smalhvood, 2 S. & "cruelty." T. 397 ; 31 L. J., P. & M. 3). For it cannot be affirmed gene- ~~ rally that every act of personal violence or that every com- bination of acts of personal violence voluntarily inflicted, and productive of hurt or alarm, constitutes legal cruelty ; the extent of the injury, the causes conducing to the use of violence by the husband, the circumstances under which it occurred, the probability of the recurrence of similar or greater violence, are all matters requiring consideration (Baptist v. Baptist, No. 101, Punjab Record, 1882). But if the single act of violence is of such a character as to found a reasonable apprehension of further violence in case of cohabitation, the wife is entitled to the protection of the Court (Reeves v. Reeves, 3 S. & T. 139; 32 L. J., P. & M. 178) ; and even where the evidence of actual violence is not per se sufficient to warrant a decree on the ground of cruelty, the Court will take into consideration the general conduct of the husband towards the wife, and if this is of a character tending to degrade the wife, and subjecting her to a course of annoyance and indignity injurious to her health, will feel itself at liberty to pronounce the cruelty proved (Swatman v. Swatman, 4 S. & T. 135). Thus, where there were continual quarrels between the husband and the wife, caused by his acts of adultery, and such quarrels led to violence of demeanour and occasional acts of violence on his part, inducing mental and bodily suffering in the wife, it was held that his conduct amounted to legal cruelty (Knight v. Knight, 4 S. & T. 103; 34 L. J., P. & M. 112). So, where subsequently to acts of physical violence, long since condoned, the wife had been deprived of her proper position in the household, neglected, degraded to the position, and made to do the work, of a menial servant, and had to take her meals and to sleep apart from the rest of the family, it was held that such treatment amounted to legal cruelty (Smith, L. J., Aubourg v. Aubourg, 72 L. T. 295). But the husband's conduct, to amount to legal cruelty, must be such as to endanger or cause a reasonable apprehension of endangering the wife's personal health and safety. Therefore where a husband constantly swore at and abused his wife and refused to provide her with delicacies ordered by the doctor, used threats towards her and on several occasions wantonly beat the child in her presence, but it did not appear that the wife had suffered in health in consequence of such treatment or that she was apprehensive of her personal safety, it was held that the DISSOLUTION OF MARRIAGE. 47 husband's conduct did not amount to legal cruelty (Birch v. 10. Birch, 42 L. J., P. & M. 23). "cruelty." On the other hand, if force, whether physical or moral, is systematically exerted by a husband to compel the submission of his wife, in such a manner and to such an extent as to break down her health and to render a serious malady imminent, it is legal cruelty (Kelly v. Kelly, L. E., 2 P. 31 ; in app., L. E., 2 P. 59 ; 39 L. J., P. & M. 28) ; and in Bethune v. Bethune ( (1891) P. 205; 60 L. J., P. & M. 18), though the husband had not committed any act of physical violence upon the petitioner, yet throughout the married life had habitually insulted her and be- haved towards her with neglect and studied unkindness, in consequence of which her health had been much impaired, it was held that she was entitled to a decree nisi for the dissolution of the marriage (cf. Mytton v. Mytton, per Butt, J., 11 P. D. 143). Indifference, neglect, aversion to wife's society, and cessation Neglect of of matrimonial intercourse, without personal violence or words wife and of menace, do not amount to legal cruelty, even though the adulte *7. *&b husband be carrying on an adulterous intercourse with the house where servants of the house in which the wife is living (Cousen v. wife was Cousen, 4 S. & T. 164; 34 L. J., P. & M. 139); and no general Uvil1 ^- rule can be laid down as to what amount of mere insults and offensive conduct on the part of the husband towards the wife, in the absence of acts of physical violence, will amount to cruelty so as to entitle the wife to a decree of dissolution of marriage on the ground of adultery and cruelty (Beaucltrk v. Beauderk, (1891) P. 189; 60 L. J., P. & M. 20). But neglect, coldness and insult, whereby the petitioner's health was injured and entirely gave way, and a continuance of which would, according to the medical evidence, have produced melancholia, were held to constitute legal cruelty (Walmesley v. Walmesley, 1 E. 529 ; 69 L. T. 152). Words of menace importing the actual danger of bodily harm Threats, will justify the interposition of the Court, as the Court ought not to wait till the mischief is done. But the most innocent and deserving woman will sue in vain for the interference for words of mere insult, however galling (Oliver y. Oliver, 1 Hagg. Cons. Eep. 364). "There is no case in the books where words alone, how- ever violent, however galling .... have been held per se to constitute legal cruelty " (Russell v. Russell, ubi supra}. Thus, where the husband threatened to cut the wife's throat but did 48 THE INDIAN DIVORCE ACT. 10. cruelty." Spitting in wife's face. Communica- tion of disease. not accompany the threat with any act of violence, it was held that the threat was merely an expression of passion and did not amount to legal cruelty (Brown v. Brown, 14 "W. E. (Eng.) 318). But where from the words of menace a malignant intention to do bodily harm, and a reasonable apprehension of such harm, may be inferred, the Court will interfere to prevent the actual mischief threatened (D'Aguilar v. D'Aguilar, 1 Hagg. 775; Kenrick v. Kenrick, 4 Hagg. 129 ; Dysart v. Dysart, 1 Eobert. Eccl. Eep. 106 ; Oliver v. Oliver, uli supra], Spitting in the wife's face has been held to amount to legal cruelty (D'Aguilar v. D'Aguilar, iibi supra ; Curtis v. Curtis, 1 S. & T. 197 ; 27 L. J., P. & M. 173). But as regards such acts as spitting in the wife's face, the test is the sense in which they were received ; if they were not resented at the time, less weight will be attached to the charge when brought (Saundfrs v. Saun- ders, 1 Eobert. Eccl. Eep. 549 ; Waddell v. Waddell, 2 S. & T. 584 ; 31 L. J., P. & M. 123). Whether, however, in any case such an act, though amounting to as gross an insult as can be imagined, would per se be held to amount to legal cruelty may be doubted. Combined with other acts of physical violence it will certainly weigh with the Court. If a husband, knowing that he is in such a state of health that by having connection with his wife he will run the risk of com- municating venereal disease to her, recklessly has connection with her and thereby communicates the disease to her, he is guilty of legal cruelty (Beardman v. Beard/nan, L. E., 1 P. 233). But the husband's act must be wilful, and that it was so must be clearly and conclusively established ( Collett v. Collett, 1 Curt. 678). Where, however, a husband is charged with having wil- fully communicated a loathsome disease to his wife, and being a competent witness does not come forward to assert his igno- rance, the Court will hold the charge of wilful intention proved (Brown v. Brown, L. E., 1 P. 46 ; 35 L. J., P. & M. 13). Where there was no evidence beyond the presumption arising from the state of the wife against whose character there was no imputation that the husband had ever suffered from disease and he denied it, but the jury found that he had been guilty of cruelty in infecting his wife with syphilis, the Court (Willes, J., dissenting) granted a new trial on the ground that even if the husband had communicated the disease, there was no evidence to show that he had done so wilfully and knowingly (Morphett DISSOLUTION OF MARRIAGE. 49 v. Morphett, L. E., 1 P. 702; 38 L. J., P. &M. 23). In this 10. case it was held, first, that it devolved upon the wife to " cruelty." establish affirmatively that her husband, having the disease himself, knew, either from medical advice or from the obvious character of the symptoms, that he had an infectious disease, and that it existed in such a stage and form that connection with his wife was at least distinctly dangerous ; and secondly, that, in the absence of actual proof of the existence of disease in him, it was incumbent upon the wife, in the medical evidence ad- duced in support of her charge, to lay the foundation for a scientific conclusion which should take the place of such proof, and from which the jury could argue with reason, first, to the charge of knowledge, and through that to the charge of wilfulness. But cruelty which consists in the communication of a venereal disease must be charged specifically, and in a case where there had been no allegation of such cruelty in the petition, although there was a general charge of cruelty, the Court refused to admit evidence on the point. (Squires v. Squires, 3 S. &T. 541 ; 32 L. J., P. & M. 172). Drunkenness, even when accompanied by acts of considerable Drunkenness, violence, is not per se a substantial ground for a decree of judicial separation (Scott v. Scott, 29 L. J., P. & M. 64). Nor will the Court interfere to protect the wife from mere unhappiness resulting from an ill-assorted marriage, nor from the destruction of domestic comfort caused by drunkenness (Hudson v. Hudson, 3 S. & T. 314 ; 33 L. J., P. & M. 5). But the Court, on the question of cruelty, will consider the liability of danger which a wife would incur by returning to cohabitation with a husband subject to uncontrollable fits of drunkenness, such husband having used a certain amount of violence to the wife when under the influence of drink, and particular acts of violence will be viewed in connection with the cumulative mis- conduct of the husband (Power v. Power, 4 S. & T. 173 ; 34 L. J., P. & M. 137). But in such cases it is for the wife to show that a return to cohabitation would be unsafe (Eaxton v. JRuxton, 5 L. E. Ir. 19). So, where a husband had for many years led a life of gross intemperance, and on various occasions, apparently while suffer- ing from delirium tremens, had treated his wife with cruelty, it was held that as she could not return to cohabitation without incurring great peril of a renewal of the bodily injuries pre- viously inflicted on her, she was entitled to a decree for judicial separation (Marsh v. Marsh, 1 S. & T. 312; 28 L. J., P. & M. 13). R. E 50 THE INDIAN DIVOECE ACT. 10. As a general rule, cruelty committed by an insane person is ''cruelty." no ground for judicial separation; the remedy lies in the re- Cruelty by straint of the lunatic, not in the release of the other party (Hall lunatic. v. Hall, 3 S. & T. 348 ; 33 L. J., P. & M. 65). Accordingly, acts of violence committed under the influence of an acute disorder, such as brain fever, where, the disorder having been subdued, there is no danger of their recurrence, are no ground for judicial separation. It is, however, otherwise if the result of such disease is a new condition of the brain render- ing the person liable to such ungovernable fits of passion as would render future cohabitation unsafe (Curtis v. Curtis, 1 S. & T. 192; 27 L. J., P. & M. 74). " If it can be shown that the insanity is of such a nature that it will produce violence on the part of the husband, and en- danger the safety of the wife, though it need not entail the permanent incarceration of the man, but only his restraint from time to time, if the mania is recurrent, and comes on suddenly from time to time, she may be placed in great jeopardy. In such a case I can well conceive that, although in some instances insanity may be one of those misfortunes which must be taken by a wife with her husband for better or for worse, and though it may assume the form of a disease, yet, if it is such as to imperil the wife's safety, she is entitled to the protection of this Court. Assuming for the moment that these attacks were not brought on the respondent by his own self-indulgence ; assum- ing that they were the result of hereditary disease, I should still be disposed to hold that acts of cruelty committed in one of these fits of mania would entitle the wife to the remedy which she asks separation from her husband The ordinary protection which she is supposed to obtain by proceedings in lunacy is a delusion, because it does not protect her against the return home of her husband, who is liable at any moment to become a lunatic" (Butt, P., Hanbury v. Hanbury, (1892) P. 224, 225). So, where acts of violence were proved, and at times a state of cerebral excitement, arising from the fatigues and anxieties of business, connected with some of the acts of violence, it was considered by the Court that renewed cohabi- tation would be attended with such liability to a recurrence of ungovernable passion and cerebral excitement as would make cohabitation unsafe to the wife, who was accordingly granted a decree of judicial separation (Martin v. Martin, 29 L. J., P. & M. 106). DISSOLUTION OP MARRIAGE. 51 An adulterous intercourse carried on by a husband with the 10. female servants in the house in which his wife is living does "cruelty." not per se amount to legal cruelty (Cousen v. Cousen, 4 S. & T. Undue 164 ; 34 L. J., P. & M. 139). familiarities * But the attempts of a husband to debauch his own female with f ^ male servants, servants ' ' are a strong act of cruelty, perhaps not alone sufficient to divorce, but which might weigh, in conjunction with others, as an act of considerable indignity and outrage to his wife's feelings " (Popkin v. Popkin, 1 Hagg. 766). And the Court will take into consideration the position in which the wife is placed in the family by reason of any authority or control exercised over her by the servants by the direction of the husband, and the state of the wife's feelings arising from reasonable suspicion of undue familiarity between her husband and a maidservant (Anthony v. Anthony, 1 S. & T. 594). And even in the absence of any evidence of actual violence towards the wife, the Court will take into consideration his general conduct towards her, and if this be of a character tending to degrade her, and subjecting her to a course of annoyance and indignity injurious to her health, will feel itself at liberty to hold the cruelty proved (Swatman v. Swatman, 4 S. & T. 135; cf. Aubourg v. Aubourg, 72 L. T. 295). The essential element of constructive cruelty is that the acts Constructive should be done in the presence, and so directly shock the sensi- crue lty- bility, of the wife ; it is confined to cases of cruelty practised by a husband upon the children in the presence of their mother, and ought not to be applied to cases of mere neglect, nor where the wrong- doer is the wife (Manning v. Manning, 6 Ir. R. Eq. 417 ; and 7 Ir. E. Eq. 520). The wanton ill-treatment of a child in the presence of the mother and for the purpose of giving her pain may, if carried to such an extent as to affect her health, con- stitute legal cruelty towards her (Birch v. Birch, 42 L. J., P. & M. 23; Suggate v. Suggate, 1 S. & T. 489; 28 L. J., P. & M. 46). In Furlonger v. Furlonger (5 Notes of Cases, 425) Dr. Lush- Cruelty on ington said: "Generally speaking that would be cruelty if part of wife, practised by a wife towards her husband which would be held to be cruelty if done by him towards her. I say generally speaking, for I think there must be some distinctions neces- * According to Lord Herschell (Russell v. Russell, unreported at present) the word "cruelty" is here used by Lord Stowell in its popular, and not in its legal sense. E2 52 THE INDIAN DIVORCE ACT. 10. sarily founded on the great difference between the sexes, and the "cruelty." power of the husband in ordinary circumstances to protect him- self from the wife's violence ; still, the same great rule of danger to life or limb must prevail ; in these, as in all other cases of the same genus, necessary protection is the foundation of all separation." On this principle, the husband will be entitled to the protection of the Court where the wife's passions, from whatever cause, are so little under control that she is in the habit of using personal violence to her husband, from which habit he may be in danger of bodily injury, though no actual serious injury has been inflicted (White v. White, 1 S. & T. 591). For though the physical effects of a wife's violence may not generally be so serious to the personal safety of the husband as the effects of his violence towards her, yet the moral result of the wife's violence to all the proper relations of married life is so serious that the Court will interfere, and not drive the hus- band to the necessity of meeting force by force ( Fritchard v. Pritchard, 3 S. & T. 523; B.C. Pickard v. Pickard, 33 L. J., P. & M. 158). When cruelty on the part of the wife is charged, the sole ques- tion is not whether the husband's safety is endangered ; the Court will also consider whether the conduct of the wife may not endanger her own safety by provoking the husband to retaliate and to meet force by force (Forth v. Forth, 36 L. J., P. & M. 122). The doctrine of constructive cruelty is confined to cases of cruelty practised by the husband upon the children in the pre- sence of their mother, and ought not to be applied where the wrongdoer is the wife (Suggate v. Sugyate, 1 S. & T. 489 ; 28 L. J., P. & M. 48 ; Manning v. Manning, 6 Ir. E. Eq. 417, and 7 Ir. E. Eq. 520). Drunken violence on the part of the wife only justifies such force on the part of the husband as may be necessary for her restraint (Pearman v. Pearman, 1 S. & T. 601 ; 29 L. J., P. & M. 54). But when, upon a husband's petition for dissolution of marriage on the ground of the wife's adultery, the adultery is fully proved against her, but she counter- charges cruelty on the part of her husband towards her, and it appears that the wife is a woman of drunken habits and that what she alleges as violence has been used upon her in consequence of her drunkenness, the Court requires a very strong case to be made out against the husband in order to bar his right to relief from the marriage tie. Unless it is proved that he has been DISSOLUTION OF MARRIAGE. 53 guilty of such gross violence towards her as the Court cannot 10. allow to be excused on the ground that he was provoked to it by "cruelty." her intemperance, the decree in his favour should not be with- held (Forsyth v. Forsyth, 63 L. T. 263). So, too, violent and uncontrollable temper, habitual intempe- rance, violent conduct in the presence of the husband's guests, assaults on him, acts or threats of violence and offensive lan- guage and scandalous statements against his daughters by which he was obliged to remove them from his house, acts of violence towards his servants all tending to affect his health and social position constitute a legal defence to a suit by the wife for restitution of conjugal rights (VArcy v. D'Arcy, 19 L. E. Ir. 369 Mat.). But intemperance, however gross and habitual, and violence of temper, however uncontrolled and persistent, are not in themselves sufficient reasons to justify a husband going away from his wife, leaving her to support herself and not troubling as to how she is living (Heyes v. Heyes, 13 P. D. 11 ; 51 J. P. 775). Cruelty is a question of fact, and it is for the Court to ' ' direct Cruelty is a the jury, in cases which come before a jury, what acts constitute question of legal cruelty, and they will have to find whether the acts done ac ' are cruelty or not" (Tomkins v. Tomkins, 1 S. & T. 168). But the jury cannot found a verdict of cruelty on acts which do not amount in law to cruelty (Russell v. Russell, (1895) P. (C. A.) 315). Condoned cruelty may be revived by acts of violence and Condoned threats calculated to revive a sense of insecurity and appre- cru . e lty, revived hension of danger (Curtis v. Curtis, 1 S. & T. 192; M l Keever v. M'Keever, 11 Ir. E. Eq. 26). It may also be revived, even without actual violence, by threats of such a nature, and so expressed, as to satisfy the Court that future cohabitation would be attended with danger to the party threatened (Bostock v. Sostock, 1 S. & T. 221 ; 27 L. J., P. & M. 86). Where a wife who had suffered such acts of cruelty from her husband as would probably have been sufficient to enable her to have then obtained a decree of judicial separation, returned to his house and lived with him for five years, during which time he treated her with continued unkindness, though he never struck her, but his conduct eventually so terrified his wife that she left him, it was held that, even if the latter acts did not amount to legal cruelty, they did nevertheless constitute such a revival of the earlier cruelty as to warrant the Court in granting THE INDIAN DIVOKCE ACT. 10. "cruelty." Adultery by husband sub- sequently to decree of judicial separation on ground of his cruelty. Adultery and desertion. Desertion for two years or more. the wife a decree of judicial separation (Mytton v. Mytton, 11 P. D. 141; 57 L. T. 92). Cruelty once condoned may be so revived by subsequent adultery as to form, coupled with that cruelty, a ground for sentence of dissolution of marriage (Palmer v. Palmer, 2 S. & T. 61 ; 29 L. J., P. & M. 124 ; Dempster v. Dempster, 2 S. & T. 438 ; 31 L. J., P. & M. 20). But if the wife has agreed for valuable consideration not to take any proceedings against her husband in respect of past cruelty, his subsequent adultery will not revive her right to complain of such cruelty (Rose v. Rose, 7 P. D. 225). As regards "condonation," generally, see note to sect. 12, post. A wife who has obtained a decree of judicial separation on the ground of her husband's cruelty, if her husband subse- quently commits adultery, is entitled, on proof of the former decree, and of the subsequent adultery, to a decree of dissolu- tion of marriage (Bland v. Bland, L. E., 1 P. 237; 35 L. J., P. & M. 104; Green v. Green, L. E., 3 P. 121 ; 43 L. J., P. & M. 6). (h) "Or of adultery coupled with desertion without reasonable excuse for two years or upwards." "Desertion " implies an abandonment against the wish of the person charging it (sect. 3, ante, p. 20). "For two years or upwards." When the statutory period of two years necessary to found a charge of desertion is not complete at the time when proceedings for divorce are commenced, such charge can only be pleaded and acted upon by being made the subject of a fresh petition when the period is completed (Lapington v. Lapington, 14 P. D. 21 ; 58 L. J., P. & M. 26). But in another case where the adultery was proved, but the evidence of desertion fell short of the required period by several months, the hearing was adjourned; and twelve months after- wards the respondent not having returned to cohabitation the petitioner filed a supplemental petition charging desertion, on proof of which the Court granted a decree nisi ( Wood v. Wood, 13 P. D. 22 ; 57 L. J., P. & M. 48 ; cf. sect. 54, post}. And in such a case if the wife proves the adultery, but fails to prove desertion for two years, it is competent for the Court to decree judicial separation, although the petition only prays for a disso- DISSOLUTION OF MARRIAGE. 55 lution (Smith v. Smith, 1 S. & T. 359 ; 28 L. J., P. & M. 27). 10. If, however, the petitioner refuses to amend the petition by " desertion." praying for judicial separation, the petition will be dismissed ~ (Rowley v. Rowley, 4 S. & T. 137 ; 12 L. T. 505). A bond fide offer by the husband to return to or resume cohabitation will, if made before the two years have elapsed, deprive his absence of the character of desertion (Lodge v. Lodge, 15 P. D. 159; 59 L. J., P. & M. 84 ; and cases cited below, p. 63). " Abandonment" There is no definition of " abandonment " in the Act, but the Abandon- effect of the definition of "desertion," as implying " an aban- ment> donment against the wish of the person charging it," is to intro- duce into the Indian statute the view adopted by the Court in England in construing the English Act. Therefore the expres- sion "against the wish of" must be construed as meaning "contrary to an actively expressed wish o/" the person charging abandonment, and notwithstanding the resistance or opposition of such person. A wife, who seeks to prove desertion, must conse- quently give evidence of conduct on her part showing unmis- takably that such desertion was against her wishes actively expressed (Fowle v. Fowls, I. L. E., iv Calc. 260; 3 C. L. E. 484). Absence, to constitute desertion, must be without the consent, direct or indirect, of the party alleging desertion and against such party's express wishes (Ward v. Ward, 1 S. & T. 185; 27 L. J., P. & M. 63). So, where a husband, after residing with his wife for four years, went to London in search of employment and during the following sixteen years only once communicated with her, it was held that, as the wife had never applied to him for a renewal of cohabitation, the charge of desertion had not been established (Thompson v. Thompson, 1 S. & T. 231 ; 27 L. J., P. & M. 65). And where a husband, after shamefully ill-treating his wife, left the house telling her that he was going to leave her, and the wife stayed in the house for some time and then, without making any inquiries about her husband, went to her sister's house and there remained, the full Court held that the husband had not " deserted " the wife, although it was proved that some six years after leaving her he had informed a friend of hers that he was living in adultery and would have nothing more to do with her (Smith v. Smith, 1 S. & T. 359; 28 L. J., P. & M. 27). If, after the parties have separated by mutual consent, the 56 THE INDIAN DIVORCE ACT. 10. " desertion." Separation brought about by husband's misconduct. husband makes a londf.de offer to resume cohabitation, but his offer is unreasonably refused by the wife, his conduct in there- after keeping away from her will not amount to " desertion," unless the wife has, subsequently to her refusal of his offer, herself made an offer to return to him (Keech v. Keech, L. B.., 1 P. 641 ; 38 L. J., P. & M. 7). But where a husband left his wife, and, after corresponding with her for some years, finally went abroad and started in another home with a woman, by whom he had children, and contributed nothing to his wife's support, it was held that he had "deserted" his wife, although the latter made no request to him to return to her or to take her back to live with him (Drew v. Drew, 64 L. T. 840). But, although an abandonment to constitute desertion must be against the actively expressed wishes of the other party, a husband none the less "deserts" his wife because she uses expressions to the effect that she has no wish to see him. again, when such expressions have been wrung from her by her husband's misconduct, if the desertion be otherwise proved (Meara v. Meara, 35 L. J., P. & M. 33). Thus, where a wife reproached her husband for his connec- tion with another woman, and, on his replying that he wished to go away and live with the woman in question, told him that he could go if he liked, but made him swear to return when he became tired of the other, it was held that the husband, who had never returned, had been guilty of desertion (Haviland v. Haviland, 32 L. J., P. & M. 65). Nor does a husband any the less " desert" his wife because the wife has been compelled by his conduct to leave the house. Where, therefore, a husband a few years after the marriage brought to his house a woman with whom he had immoral relations and insisted, despite his wife's protests, on keeping her in the house, and eventually informed his wife, when she told him that either the woman or she must leave the house, that she could please herself but that the woman would remain, and the wife went away and never afterwards resumed cohabita- tion, it was held that the husband had been guilty of desertion (Dickenson v. Dickenson, 62 L. T. 330). So, where under the pressure of pecuniary difficulties, brought about by the husband's extravagance and dissolute habits, the husband and wife came to an arrangement by which she went to live with her friends, and he resided at his mother's house until they could again find means to provide a common house, and the husband subsequently left his mother's house and went to DISSOLUTION OF MARRIAGE. 57 reside elsewhere, it was held that the separation, not being 10. brought about by the act of the wife but by the husband's " desertion." misconduct, amounted to desertion on his part ( Wood v. Wood, I. L. E., iii Calc. 485 ; 1 0. L. E. 552). And in a case where the intention of the husband clearly was not to live again with his wife, the Court held that he had been guilty of desertion, although it was the wife who, in consequence of his misconduct, had left the house in which they were residing, and despite her refusal, on hearing of an adulterous connection on his part, to return to cohabitation unless she was satisfied that such connection was at an end (Graves v. Graves, 3 S. & T. 350 ; 32 L. J., P. & M. 66 ; foil, in Pizzala v. Pizzala, Times Law Eeps., vol. xii. p. 451). In all such cases, if the husband offers to resume cohabita- tion, the wife is entitled to annex a reasonable condition to her acceptance of the offer, and her refusal to accept the offer except upon such condition will not deprive her of her right to sue on the ground of desertion (Gibson v. Gibson, 29 L. J., P. & M. 25; Graves v. Graves, supra}. A condition that her husband gives up an adulterous connection is reasonable (Alexander v. Alexan- der, No. 51, Punjab Record, 1869). But where a husband sent his wife back to her father's house three days after the marriage, saying that he could not afford to keep her, and eighteen months afterwards, during which time the wife had heard nothing of him, went to her father and asked to be allowed to see her, and the father refused to let him have any communication with her until he could support her, it was held that the husband's conduct in never afterwards returning to his wife, or asking her to return to him, did not amount to " desertion" (Harris v. Harris, 31 L. J., P. & M. 6). If the wife's conduct has been such that the husband cannot Separation reasonably be expected to live with her, he cannot be said to brought desert her without reasonable cause, although her conduct may a ,.? u , ^ not actually amount to a matrimonial offence (* Russell v. Russell, conduct. (1895) P. 315; 64 L. J., P. & M. 105; Oldroyd v. Oldroijd, 65 L. J., P. & M. 113). But "the cause should be grave and weighty which, in the judgment of the Court, should deprive a deserted wife of her remedy for that desertion, and her right to set it up as a bar to a divorce for adultery at her husband's suit" (Lord Penzance, Teatman v. Yeatman, L. E., 1 P. 489; 37 L. J., P. & M. 37). * The decision of the Court of Appeal in this case has been upheld by the House of Lords (see Times newspaper of July 17, 1897). THE INDIAN DIVORCE ACT. 10. " desertion." Facts con- stituting desertion. Absence on business. Husband making wife suitable allowance. Facts constituting desertion. The facts which, constitute desertion vary with the circum- stances and mode of life of the parties. So long, however, as a husband treats his wife as a wife by maintaining such degree and manner of intercourse with her as might naturally be ex- pected from a husband of his calling and means, he cannot bo said to have " deserted" her (Williams v. Williams, 3 S. & T. 547). The absence of a husband in his ordinary occupation as a mariner does not constitute desertion, nor in such a case can the Court take into consideration an actual desertion in past years which has been terminated by a return to cohabitation (Ex parte Aldridge, 1 S. & T. 88). Mere absence on business does not amount to desertion, but the nature and extent of such absence and the conduct of the husband during the absence must be considered. Where a hus- band having fallen into difficulties, enlisted and went with his regiment to India, where he was subsequently discharged, and ceased to correspond with, or contribute to the support of, his wife, his conduct was held to amount to a desertion of his wife (Henty v. Henty, 33 L. T. 263). So, where a husband left his wife in England and went to China to secure an appointment, and during his absence wrote her many affectionate letters, expressing regret for past mis- conduct and promising amendment in future, but in none sug- gesting a desire to return to his wife, and in one stating his intention not to return to England, and on his return to Eng- land three years afterwards gave her no address, and made no attempt to see her or her friends, although continually pressing her for money, the wife, on proof of his adultery, was granted a decree nisi for dissolution of the marriage (Lawrence v. Law- rence, 2 S. & T. 575 ; 31 L. J., P. & M. 145). A wife is entitled to the society and protection of her husband : the mere fact, therefore, that he has made her a suitable allowance is no answer on his part to a charge of desertion (Macdonald v. Macdonald, 4 S. & T. 242; Teatman v. Yeatman, L. E., 1 P. 489; 37 L. J., P. & M. 37). But where a man left his wife in full possession of the family house, and subsequently, with her assent, visited his children there, but did not remain or return to cohabitation with his wife or hold any communication with her, it was held that his conduct was not evidence of desertion, but rather of separation by mutual consent (Taylor v. Taylor, 44 L. T. 31). DISSOLUTION OF MARRIAGE. 59 So, where a husband in 1880 ceased to reside with his wife on 10. the pretence that his business compelled him to be absent, but " desertion." supplied her with necessaries, corresponded with her and visited her occasionally, and a child was born in February, 1884, and in January, 1884, the wife discovered that he had been living for two years with another woman, it was held that the husband had not been guilty of desertion up to January, 1884. Semble, desertion commenced from the time when the wife discovered the adultery (Farmer v. Farmer, 9 P. D. 245 ; 53 L. J., P. & M. 113). On the other hand, the mere fact of a man leaving his wife to go and live with another woman does not necessarily constitute desertion (Ward v. Ward, 1 S. & T. 185 ; 27 L. J., P. & M. 63). To constitute desertion there must be a withdrawal from Withdrawal existing cohabitation. ' ' No one can ' desert ' who does not actively and wilfully bring to an end an existing state of cohabitation. Cohabitation may be put an end to by other acts besides that of actually quitting the common house. Advantage may be taken of temporary absence or separation to hold aloof from renewal of intercourse. This done wilfully, against the wish of the other party, and in execution of a design to cease cohabitation, would constitute desertion. But if the state of cohabitation had already ceased to exist, whether by the adverse act of husband or tvife, or even by the mutual consent of both, desertion, in my judg- ment, becomes from that moment impossible to either, at least until their common life and home has been resumed. In the mean- time, either party may have the right to call upon the other to resume their conjugal relations, and, if refused, to enforce their resumption ; but such refusal cannot constitute the offence intended by the statute under the name of ' deser- tion without cause ' " (per Lord Penzance, Fitzgerald v. Fitz- gerald* L. E., 1 P. 694; 38 L. J., P. & M. 14; followed in * What Fitzgerald v. Fitzgerald decides is that a party cannot complain of desertion after voluntarily leaving his or her consort, and also that where the parties are living apart by mutual consent there is no desertion. It is clear that cohabitation often exists with- out the parties living under the same roof, as in the case of married persons in domestic service (Bradshaio v. radshaw, 66 L. J., P. & M. 31). 60 THE INDIAN DIVORCE ACT. 10. " desertion.' 11 Separation may become desertion, though not so at first. Wood v. Wood, I. L. E., iii Calc. 485; and Fowle v. Fowle, I. L. E., ivCalc. 260). With, every respect to the very learned judge whose words have been quoted above, it is not very easy to understand how, if the state of cohabitation has already ceased to exist by the adverse act of one alone of the parties, desertion becomes from that moment impossible to the other. Desertion can only become possible where the adverse act of one of the parties has already caused a cessation of the state of cohabitation. It is, of course, very different where both parties have already mutually con- sented to cease cohabitation, and the rule may, perhaps, be more accurately stated as laid down by the Court of Appeal (Reg. v. Le Resche, 65 L. T. 602), viz., that in order to constitute "desertion" there must be an active withdrawal from an existing cohabitation, and when once cohabitation has ceased to exist by mutual consent desertion is impossible at least, until it has been resumed even though the one party has called upon the other to resume cohabitation, and the other party has refused. But a mere temporary separation between husband and wife for mutual convenience does not effect a cessation of cohabi- tation, or alter the marital relations (Chudhy v. Chudley, 69 L. T. 617). " There are cases in which the parties may have innocently ceased for a time to be actually living together, separated by the calls of everyday life or the exigencies of public duty, and the husband or the wife, taking advantage of the separation, mav have purposely rejected all subsequent opportunities of coming together again, and this may constitute ' desertion.' For, in truth, in such cases, the state of cohabitation was not, in the first instance, wholly relinquished but only suspended till a fitting occasion for its resumption, and purposely to reject all such occasions is practically to abandon it" (per Lord Penzance, Fitzgerald v. Fitzgerald, ubi supra"). In such cases an intention to "desert" will be the more readily inferred when either party during an innocent separation forms an adulterous connection and breaks off all communications with the other party. Thus where a husband, while living apart from his wife under circumstances which did not constitute desertion, suddenly ceased to correspond with her, and formed an adulterous connection with another woman, and the facts showed that he had resolved to abandon his wife, his conduct was held to amount to desertion of the wife (Gatehouse v. Gate- house, L. E., 1 P. 331 ; 36 L. J., P. & M. 121 ; cf. Stickland v. DISSOLUTION OF MARRIAGE. 61 Stickland, 35 L. T. 767; and Lawrence v. Lawrence; Henty v. 10. Henty ; Farmer v. Farmer, supra, pp. 58, 59). "desertion." So, where a husband and wife, four years after their marriage and in consequence of the pecuniary difficulties of the former, agreed that a house and shop should be taken for the wife, and that she should carry on business in a separate name, and the parties never lived together again, though the husband occa- sionally secretly visited the wife and made her an allowance, but refused in spite of her remonstrances to recommence open and avowed cohabitation, and the wife, having reason to suspect that he had formed an adulterous connection, subsequently refused to cohabit with him, and three years afterwards, when she received positive proof of his adultery, sued for a divorce on the ground of his adultery and desertion, it was held that there was sufficient evidence of desertion for two years and upwards without reasonable cause (Garcia v. Garcia, 13 P. D. 216 ; 57 L. J., P. &M. 101). Again, a wife was granted a decree nisi for dissolution of marriage under the following circumstances : the husband and wife agreed to separate owing to the husband's inability to maintain the wife, but they agreed to correspond, and numerous letters passed between them, in some of which the husband taunted the wife with not getting a divorce, and said it was cruel of her to " fetter" him. In answer to an offer made by the wife to return to him, he replied that he was ill, and even- tually refused her offer. His letters ceased in July, 1885, and although the wife wrote four times in answer to his last letter, she received no reply from him, and eventually discovering that, while the correspondence was going on and afterwards, he had been keeping up an adulterous connection, and was at the time living under his mother's roof with another woman, she sued for a divorce on the ground of his adultery and desertion (Smith v. Smith, 58 L. T. 639). Voluntary Separation under Separation Deed. Where a husband and wife have voluntarily agreed to live Separation separate, and have executed a deed of separation, and have un( | er ^. ee< * * thereafter lived apart from each other, desertion becomes impos- sible to either of them. In such a case each of the parties bargains away the right to claim relief on the ground of deser- tion. Nor does the fact that one of the parties has failed or refused to fulfil all the terms of the bargain convert such ^ THE INDIAN DIVORCE ACT. 10. separation into desertion (Crabb y. Crabb, L. E., 1 P. 601; 37 "desertion." . j^ P> & M 62 ). So, where a husband deserted his wife, but a year afterwards agreed to a deed of separation whereby he covenanted to make her an allowance, and the deed was fully executed, but no part of the allowance was ever paid, it was held that the wife had bargained away her right to relief, and could not establish the charge of desertion (Parkinson y. Parkinson, L. E., 2 P. 25; 39 L. J., P. & M. 14). But in another case, where the parties executed a deed of separation, and thereafter lived apart, and subsequently the husband sued for a divorce on the ground of his wife's adultery, and the wife counter-charged for desertion, and the deed of separation contained no covenant to sue or agreement to con- done past offences, the jury having found all the issues in favour of the wife, the Court granted her a decree of judicial separation (Moore v. Moore, 12 P. D. 193 ; 56 L. J., P. & M. 104). Where, however, a husband refused to live with his wife or to provide a home for her, but offered her 1007. on condition that she would not molest him in the future by insisting on her conjugal rights, and the wife agreed to the condition, and received the money, and cohabitation was never resumed, it was held that these facts did not constitute desertion (Buckmaster v. Buckmaster, L. E., 1 P. 713; 38 L. J., P. & M. 73). But a deed of separation that has never been acted upon will not deprive a husband's subsequent separation from his wife against her will of the character of desertion (Cock y. Cock, 33 L. J.,P. &M. 157). And if a husband without reasonable excuse obtains from his wife an agreement that they shall live separate, and they live separate accordingly, he will be held guilty of such desertion of her as to disentitle him to a decree of dissolution of marriage on the ground of her subsequent adultery (Dagg y. Dagg and Speke, 7 P. D. 17 ; 51 L. J., P. & M. 19). In a case in which it appeared that, subsequent to the hus- band's desertion, the parties had executed a deed of separation and the wife for three months thereafter continued to pay the husband a small allowance, the Court, being satisfied that the act of the wife was prompted wholly by affection and humanity, and that she never really assented to the desertion, granted her a decree nisi on the ground of her husband's adultery and desertion (Nott y. Nott, L. E., 1 P. 251 ; 36 L. J., P. & M. 10). DISSOLUTION OF MARRIAGE. 63 In all cases a deed of separation is avoided by a resumption 10. of cohabitation by the parties (Scholey v. Goodman, 1 0. & P. "desertion." 36 ; 8 Moore, 350). Before the two years' absence is completed a bond fide offer to Offer by resume cohabitation will deprive a separation of the character of husband * desertion (Lodge v. Lodge, 15 P. D. 159 ; 59 L. J., P. & M. 84 ; cohabitation. Keech v. Keech, L. E., 1 P. 641 ; 38 L. J., P. & M. 7). Such offer must be bond fide, and in order to judge whether it is so the Court will regard the whole conduct of the party making it (Harris v. Harris, 15 L. T. 448). Where, therefore, the husband wrote letters to his wife pro- fessing his willingness to return, the Court directed the jury to consider whether the conduct of the husband was that of a man honestly intending to resume cohabitation, or whether the real and only object of his letters was to evade the consequences which might ensue, and to deprive the wife of the remedy to which she would be entitled on the completion of the two years' absence (French- Brewster v. French- Brewster, 62 L. T. 609). On the other hand, when the desertion, without reasonable cause, for two years, is once completed, the deserted wife has a complete right to relief of which she cannot be deprived even by a bona fide offer to resume cohabitation made by the husband subsequently to the completion of the two years (Cargill v. Cargill, 1 S. & T. 235; 27 L. J., P. & M. 69). "Where, therefore, a husband has been guilty of adultery, and of desertion for two years and upwards, his offer to return to cohabitation, even if bond fide, will not disentitle the wife to sue for dissolution of marriage, for she is not, in any case, under any obligation to condone the adultery (Basing v. Basing, 38. & T. 516; 33 L. J., P. & M. 150). And in any case a husband may be guilty of desertion, even though he is willing to return to cohabitation, if at the time he is so willing he is actually cohabitating with another woman (Edwards v. Edwards, 62 L. J., P. & M. 33). To constitute Desertion, the withdrawal from Cohabitation Separation . 7 TT- 7 j must be must be Voluntary. voluntary. ' To amount to desertion, the withdrawal from cohabitation must be voluntary (Beavan v. Beavan, 2 S. & T. 652 ; 32 L. J., P. & M. 36). A separation which is the result of imprisonment does not, per se, constitute desertion. 64 THE INDIAN DIVORCE ACT. 10- A husband, who had committed several thefts, in order to " desertion." evade arrest, separated from his wife with her consent. He was subsequently arrested and imprisoned, and, on his release, was again imprisoned for other offences. While in prison, and also in the intervals between his imprisonment, he kept up a corre- spondence with his wife, and made repeated requests to resume cohabitation, but she refused, and cohabitation was in fact never resumed. On the wife's petition for dissolution, on the ground of her husband's adultery and desertion, the Court held that the separation on the part of the husband, being involuntary, did not amount to desertion (Townsend v. Toivnsend, L. E., 3 P. 129 ; 42 L. J., P. & M. 71). Where, however, the circumstances under which the separa- tion commenced are such as to show an intention on the part of the husband to abandon his wife, the mere fact that he is subse- quently prevented by imprisonment from returning to her will not deprive such separation of the character of desertion. Thus, where it appeared that the husband when he left his wife told her that he was going to Ireland for a week's shooting, but in fact he went to Australia to evade arrest on a charge of embezzlement and up to the time of his flight was living in adultery with a woman with whom he had arranged to go away, and was afterwards found living with another woman at Sydney, and he was subsequently brought back to England in custody, tried and sentenced to ten years' penal servitude, it was held that the circumstances under which he left his wife constituted desertion, and that the desertion continued notwithstanding the fact that he was brought back in custody and prevented by his imprisonment from returning to his wife (Drew v. Drew, 13 P. D. 97 ; 57 L. J., P. & M. 64). So, again, where a husband deserted his wife on the 4th October, 1854, and never returned to her afterwards, and on the 16th November, 1856, was arrested on a charge of felony and sentenced to four years' penal servitude, it was held in a suit by the wife for dissolution of marriage, instituted before the ter- mination of the husband's imprisonment, that he had been guilty of desertion for two years and upwards, although between the two dates above given he had been twice imprisoned, on one occasion for seven days, and on another for nineteen days (Astrope v. Astrope, 29 L. J., P. & M. 27). DISSOLUTION OF MARRIAGE. 65 1O ,, **,* . vv ^,,^. vvu *, . " desertion. A husband is bound to give his wife the security and comfort of his home so far as his position and business will admit, and cause f or the wife is entitled to the society and protection of her husband, separation. He is only relieved of these duties when he can show that his wife's conduct was such as to justify him in leaving her. A "reasonable excuse " for a man leaving his wife does not neces- sarily mean a distinct matrimonial offence on which a decree for judicial separation or dissolution of marriage could be founded; it must, however, be grave and weighty. Mere frailty of temper and habits which are distasteful to the hus- band do not constitute reasonable cause for depriving a wife of the protection of his home and society ( Yeatman v. Yeatman, L. E., 1 P. 489 ; 37 L. J., P. & M. 37 ; cf. Russell v. Russell, (1895) P. 315; Oldroyd v. Oldroyd, 65 L. J., P. & M. 113; (1896) P. 175). Intemperance, however gross and habitual, and violence of temper, however uncontrolled and persistent, are not suffi- cient reasons to justify a husband going away from his wife, leaving her to support herself and not troubling himself as to how she is living (Heyes v. Heyes, 13 P. D. 11; in app. 36 W. E. 527). Nor is a husband justified in leaving his wife, who up to the time of such separation was a virtuous woman, because she has run him into debt (Holloivay v. Holloway and Campbell, I. L. E., v All. 71 ; Starluck v. Starbuck, 59 L. J., P. & M. 20). Nor can a husband excuse his desertion by pleading an ample allowance made by him to his wife (Yeatman v. Yeatman, ubi supra ; Macdonald v. Macdonald, 4 S. & T. 242). Nor is the fact that the wife has agreed to a deed of separation, which the husband has obtained from her without reasonable cause, a sufficient excuse for the husband leaving the wife (Dagg V. Dagg and Speke, 7 P. D. 17 ; 51 L. J., P. & M. 19). The conviction of either party of a criminal offence unless it is also a matrimonial offence is no sufficient reason for the other party refusing to resume cohabitation (Williamson v. Williamson and Sates, 7 P. D. 76; 51 L. J., P. & M. 54). Where a man left his wife, and refused to return to cohabitation unless she wrote a letter exonerating a certain lady of whom she had reason to entertain suspicions, and she refused to write the letter, but offered to resume cohabitation, it was held that her refusal to write the letter did not constitute a reasonable cause for the husband leaving her (Dallas v. Dallas, 43 L. J., P. & M. 47). R. F 66 THE INDIAN DIVORCE ACT. 10. A man married a woman whom he knew to be a prostitute, " desertion." and/about six weeks after the marriage, went away to America, not on business, but because he lived on bad terms with his wife, who had also quarrelled with his family. He left her without subsistence, and supplied her with none during his absence of four years, but after his departure his family gave her a small pittance on one occasion, and had promised further assistance. In consequence, however, of her annoying them, they broke off all intercourse with her, and she returned to her former mode of life. In a suit by him for dissolution of mar- riage, it was held that there had been a wilful separation of the husband from the wife, and that it was without reasonable excuse (Coulthurst v. Coulthurst and Oonthwaite, 28 L. J., P. & M. 21). Involuntary separation. Confession of adultery by wife. Wife allowing indecent liberties. Refusal to consummate marriage. Reasonable Cause for Separation. A separation which is purely involuntary cannot amount to desertion without reasonable excuse. (As regards imprison- ment, see ante, p. 64.) So, where a ward of Chancery, aged sixteen years, who had no means of his own, clandestinely married a prostitute, aged about thirty-five, and the Master of the Eolls, a month after marriage, ordered that the husband should be delivered into the custody of his guardian, and that the wife should be restrained from having any communication with him, it was held that, as the separation on his part was involuntary, and he had no means of contributing to his wife's support, he had not wilfully separated himself from her (Beavan v. Beavan, 2 S. & T. 652; 32 L. J., P. & M. 36). A separation due to the exigencies of business or professional or public duties is not without reasonable cause (Ex parte Aid- ridge, 1 S. & T. 88 ; Davies v. Davies and Hughes, 3 S. & T. 221 ; 32 L. J.,P. &M. 111). A bond fide confession of adultery by a wife to her husband, believed in by him, is a reasonable cause for his leaving her (Faulkes v. Faulkes, 64 L. T. 834). So is the fact that the wife has allowed indecent liberties to be taken with her (Haswell y. Easwell, 1 S. & T. 502 ; 29 L. J., P. & M. 21). So is the persistent and unreasonable refusal by the wife to consummate the marriage (Ousey v. Ousey and Atkinson, L. K., 3 P. 223; 43 L. J., P. & M. 35). DISSOLUTION OF MARRIAGE. 67 A wife's conduct in persisting in charging her husband with 10. the commission of an unnatural offence, the charge not being " desertion." true, nor believed by her to be true, justifies her husband in Charging separating himself from her (Russell v. Russell, (1895) P. 315; husband with 64L,J.,P. & M.105). * A young man, who had just taken his degree at Cambridge, married a prostitute, but never afterwards cohabited with her. lie had no means of providing her with a home or of contri- buting towards her support, and the very day after the marriage he separated from her and went to live with his father, who, on being informed of the marriage some months afterwards, caused a deed of separation to be executed by which an allowance of \L a week was secured to her, and was regularly paid by the husband's father. It was held that the separation, if wilful, was not without reasonable excuse (Proctor v. Proctor and Smith, 4 S. & T. 140 ; 34 L. J., P. & M. 99). An officer of Marines, when only twenty years of age, married a woman, relying on certain statements made by her as to her having been entrapped into a ceremony of marriage with a man whom she subsequently found to have a wife living. After the marriage the husband discovered that the alleged bigamous marriage had never really taken place, but that the wife had been guilty of ante-nuptial incontinence, and was in an ad- vanced stage of pregnancy. He thereupon left her, and the Court held that he had reasonable cause for doing so (Kennedy v. Kennedy, 62 L. T. 705). " Contents of petition " : Contents of petition. " Every petition under this Act for a decree of dissolution of marriage, or of nullity of marriage, or of judicial separation, shall state that there is not any collusion or connivance between the petitioner and the other party to the marriage. ' ' The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in manner required by law for the verification of plaints, and may at the hearing be referred to as evidence " (sect. 47, infra], A petition for dissolution of marriage must bear a Court fee Court fee. stamp of Es. 20 (Court Pees Act, 1870, 2nd Sch., art. 20). Service of petition. See Appendix (E), pp. 347 349. F2 68 THE INDIAN DIVORCE ACT. 10. " Shall state, as distinctly as the nature of the case " desertion." permits, the facts on which the claim to have such marriage dissolved is founded" : As to this, see Appendix (E.); "Practice and Pleadings Contents of Petition." Adulterer to 11. Upon any such petition presented by a husband, respondent, the petitioner shall make the alleged adulterer a co- respondent to the said petition, unless he is excused from doing so on one of the following grounds, to be allowed by the Court : (i) That the respondent is leading the life of a prosti- tute, and that the petitioner knows of no person with whom the adultery has been committed, (ii) That the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it. (iii) That the alleged adulterer is dead. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), sect. 28, provides that : "Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless on special grounds, to be allowed by the Court, he shall be excused from so doing ; and on every petition presented by a wife for dissolution of marriage the Court, if it see fit, may direct that the person with whom the husband is alleged to have committed adultery be made a respondent ; and the parties, or either of them, may insist on having the contested matters of fact tried by a jury as hereinafter mentioned." See, also, Eules of the English Divorce Court, Nos. 4, 5, 6, 7 (Appendix (G) ). (i) Practice in (i) " Practice in England " : It will be noticed that in England the husband, in a suit insti- tuted by him for dissolution of marriage, must make the ' ' alleged adulterer" a co-respondent, "unless, on special grounds to be allowed by the Court," he is excused from so doing. The Court in England has, therefore, a wider discretion in the matter than have the Courts of this country under the Indian Divorce Act ; DISSOLUTION OF MARRIAGE. 69 the latter can excuse the petitioner only on one or other of tho U, three specified grounds. The English Court has, for instance, excused the petitioner from making the alleged adulterer a co-respondent when, although the name of the latter is known to the petitioner, the only evidence of the alleged adultery is the confession or admission of the wife (Jinkings y. Jinlcings, L. E., 1 P. 330; 36 L. J., P. & M. 48). This, however, is not one of the grounds specified in sect. 1 1 of the Indian Divorce Act, and even in England the Court has in recent cases expressed dis- satisfaction with the practice adopted in the above case (see Gill v. GUI, 60 L. T. 712 ; Payne v. Payne, 60 L. T. 238 ; Cornish v. Cornish, 15 P. D. 131 ; 59 L. J., P. & M. 84 ; Jones v. Jones, 65 L. J., P. & M. 101 ; (1896) P. 165). It is further to be noticed that the English Court may, if it see fit, make the alleged adulteress a respondent to a suit by the wife for a dissolution of marriage. Although this is rarely done in practice (for an instance, see Belly. Sell, 8 P. D. 217), the Court will make use of its discretionary power whenever it has reason to suspect collusion or connivance between the petitioner and her husband (Jones v. Jones, ubi supra}. (ii) " The alleged Adulterer" : (ii) "Alleged adulterer." When a petition alleges adultery, there is an "alleged adul- terer " within the meaning of the Act (Pitt v. Pitt, L. E., 1 P. 464). The reason for making the alleged adulterer a co-respondent and the same reasoning would justify a provision enabling the Court, when it saw fit, to make an alleged adulteress a respondent to a suit by a wife against her husband is thus stated by Gorell Barnes, J., in a very recent case: "Tho interests of the petitioner and the respondent are not all that the Court has to consider. The person or persons with whom tho respondent is alleged to have contracted a guilty relationship require their interests to be watched over, and, in the public interest, collusion between the parties, connivance, and other matters, have to be carefully guarded against, and the presence of parties whose interests conflict with the petitioner's may assist the Court in dealing with these matters (Jones v. Jones, (1896) P. 165; 65 L. J., P. & M. 101). In this case the Court laid down a general rule that the mere fact that the petitioner is unable to obtain evidence against a man who is alleged to have committed the adultery charged with his wife, although he has evidence that she has committed the adultery with him, is not 70 THE INDIAN DIVORCE ACT. " alleged adulterer." of itself a sufficient special ground for exempting the petitioner from making that man a co-respondent. The majority of the Court of Appeal, however, has recently held that no hard-and- fast rule should be laid down in such cases, and that the Court is not bound to compel a petitioner, who knows the name of his wife's alleged paramour, to make such paramour a co-respondent. On the other hand, Smith, L.J., expressed approval of the rule laid down in Jones v. Jones (Saunders v. Saunders, (1897) P. 89). The husband, therefore, while not compelled to charge adul- tery in the petition with every person with whom his wife may have committed adultery ( Hunter v. Hunter, 28 L. J., P. & M. 3), must make every person whom his petition charges with such adultery a co-respondent, unless he is specially excused from doing so by the Court (Carryer v. Carryer and Watson, 4 S. & T. 94 ; 34 L. J., P. & M. 47). And if the petition charges adultery with persons unknown, the order of the Court must be obtained dispensing with making such persons co-respondents, although there are other known co-respondents who have been duly served with process (Penty y. Penty, 7 P. D. 19 ; 51 L. J., P. & M. 2-1). In a recent case, where the petition in an undefended suit alleged adultery with two persons who were made co-respon- dents, and also with certain unknown persons, the Court ordered the paragraphs of the petition referring to the unknown persons to be struck out (Peacock v. Peacock, 6 E. 656). Counter-charge by husband. Where, in a suit by the wife for a divorce, the husband in his answer made a counter- charge of adultery against his wife, by reason of which he also prayed for a divorce, and applied for leave to proceed without making a co-respondent, the Court granted the application, but reserved the question whether it had power in such a case to make the alleged adulterer a co-respondent (Curling v. Curling, 14 P. D. 13; 58 L. J., P. &M. 20). But where the husband, while charging the wife, in his answer, with having committed adultery with a certain person, did not pray for a divorce, the Court allowed the alleged adul- terer to intervene (Wheeler v. Wheeler, 14 P. D. 154 ; 58 L. J., P. & M. 65). Affidavit of Affidavit of petitioner. Upon a motion to dispense with making petitioner . fa Q a li e g e d adulterer a co-respondent, an affidavit by the peti- tioner, stating the ground upon which the leave of the Court is asked, is indispensable (Drinkivater v. Drinkwater, 60 L. T. 398). Counter- charge by husband. DISSOLUTION OF MARRIAGE. < 1 But, even in cases where the petition charges adultery with ft JJ^ persons unknown, the Court will not act upon the affidavit of the petitioner alone : such affidavit must, in every case, be cor- roborated aliunde (Leader v. Leader, 32 L. J., P. & M. 136; Pitt y. Pitt, 37 L. J., P. & M. 24; Barber v. Barber, (1896) P. 73). Application to dispense with co-respondent : when to be made. Application, An application to be excused from making the alleged adulterer wl1 11 to " e a co-respondent should be made at an early stage of the suit, but, except under special circumstances, it will be allowed even after the respondent has filed her answer (Jafftrs v. Jaffers, 2 P. D. 90; 46 L. J., P. & M. 80). If, however, the alleged adulterer is dead, the proper course is to apply at once for an order to be excused from making him a co-respondent (Tollemache v. Tollemache, 28 L. J., P. & M. 2). Dismissal of co-respondent before hearing. The Court has Co-respondent power to dismiss a co-respondent from the suit before the dismissed hearing, and this, too, irrespective of his consent ( Wheeler v. f ore hearing. Wheeler and Hoioell, L. E., 2 P. 353 ; 41 L. J., P. & M. 33). And if the co-respondent appears under protest and pleads to the jurisdiction of the Court, the Court may, on the application of the petitioner, and on payment of the co-respondent's costs, dismiss the latter from the suit (Gaynor v. Gay nor and Dag- liantoni, 31 L. J., P. & M. 116). " Respondent leading the life of a prostitute " : Respondent leading life of To dispense with the necessity of making an alleged adulterer a prostitute. a co-respondent upon this ground, it is not enough to show that the wife is leading the life of a prostitute : the petitioner in his affidavit must also state that he knows of no one with whom the adultery has been committed (Quicke v. Quicke, 2 S. & T. 419 ; 31 L. J., P. & M. 28). A woman who does not lead a life of promiscuous intercourse with all who seek her, but lives with separate persons in succession, and professes to be able to attri- bute her respective children to a father, does not lead " a life of prostitution " within the meaning of the Act (Roe v. Roe, 3 B. L. E., Ap. 9). In this case, inasmuch as the petitioner had neglected for fourteen years to take any steps to obtain a sepa- ration from his wife, whom he knew to be living in adultery, the Court refused to allow the petition to be amended by the addition of co-respondents. 72 THE INDIAN DIVORCE ACT. 11. Name of alleged adulterer unknown to petitioner. "The name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to dis- cover it" : In such a case, it is not enough to state that the petitioner has been unable to learn the name of the alleged adulterer; he must show that he has made due efforts to discover it (Evans v. Evans, 28 L. J., P. & M. 20). But where the petitioner's affidavit stated facts showing that the respondent had committed adultery, and that the petitioner had no means of discovering with whom such adultery had been committed, it was held sufficient (Hunter v. Hunter, 28 L. J., P. & M. 3). So, where no evidence was obtainable against the man whom the respondent had indicated as the father of one of her illegiti- mate children, and who was believed to be in America, the Court allowed the petitioner to proceed without citing the alleged adulterer as a co-respondent (Bagot v. Bagot, 62 L. T. 612). If a husband decides that he will not charge adultery between his wife and the person named to him as guilty of adultery with his wife, whether because he does not believe in the truth of the accusation, or because he is convinced that he cannot prove such person's guilt, or for any other reason, the practice is to charge adultery with some person unknown and to apply to the Court for leave to dispense with a co-respondent upon a special affidavit stating the grounds on which the petitioner asks to be excused from making him a co-respondent (Saunders v. Sounders, (1897) P. 89 ; 13 T. L. E. 328, C. A.). If the petition charges adultery with certain persons, of whom some are known but some are unknown to the petitioner? the petitioner must obtain an order from the Court to be excused from making the unknown persons co-respondents (Penty v. Penty, 7 P. D. 59; 51 L. J., P. & M. 24; but see Peacock v. Peacock and Hunter v. Hunter, supra, p. 70). The mere fact that the petitioner knows the name of a person who, he is informed, was his wife's paramour, is not per se a ground for compelling him to make such person a co-respondent, when the petitioner is convinced that he cannot obtain evidence to prove the man's guilt* (Saunders v. Saunders, (1897) P. 89; 13 T. L. E. 328, C. A.). * But as to this see Edwards v. Edwards and Wilson, where Sannclers v. Saunders is explained by Jeune, J. (Times newspaper of 13th August, 1897). DISSOLUTION OF MARRIAGE. " Alleged adulterer is dead " : Where tlie alleged adulterer is dead, tlie petitioner should apply at once for an order to be excused from making him a adulterer co-respondent (Tollemache v. Tollemache, 28 L. J., P. & M. 2). dead - If a co-respondent dies pending suit, leave to strike out his name should be obtained by motion (Button v. Button, 32 L. J., P. & M. 156). Costs of proceedings. Unless the alleged adulterer is made co-respondent, he cannot bo ordered to pay the whole or any of the costs of the proceedings (see sect. 35, post), but he may, apparently, be ordered to pay damages, provided the petition has been duly served on him (see sect. 34, post). 12, Upon any such petition for the dissolution of a Court to be marriage, the Court shall satisfy itself, so far as it rea- the^absence of sonably can, not only as to the facts alleged, but also coUuslon - whether or not the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage or the adultery, or has condoned the same, and shall also inquire into any counter- charge which may be made against the petitioner. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), sect. 29 : "Upon any such petition for the dissolution of a mar- riage, it shall be the duty of the Court to satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or no the petitioner has been in any manner accessory to or conniving at the adultery, or has condoned the same, and shall also inquire into any counter- charge which may be made against the petitioner." " Accessory to ": "Accessory to." The words " accessory to the adultery " mean aiding in pro- ducing, or contributing to produce, the adultery (Gipps v. Gipps and Hume, 33 L. J., P. & M. 161). It is not necessary that the petitioner should be an accessory before the fact (Marris v. Harris and Burke, 2 S. & T. 530 ; 31 L. J., P. & M. 69). The petitioner may be an accessoiy to the adultery if it has been directly brought about by agents employed by the petitioner to watch the other party, even though such agents in bringing THE INDIAN DIVORCE ACT. 12. " Conniving at": Connivance on part of husband. about the adultery act without the knowledge or authority of the petitioner (Gower v. Gower, L. E., 2 P. 428; 41 L. J., P. & M. 49; Picken v. Picken and Simmonds, 34 L. J., P. & M. 22; Bell v. Bell, 58 L. J., P. & M. 54 ; Beanlands Y. Beanlands, No. 45, Punjab Record, 1871). See also note to sect. 14, post, s.t. "Neglect or Misconduct." " Conniving at " : Connivance on the part of the husband. Connivance on the part of a husband means a knowledge of, or acquiescence in, his wife's adultery (Boulting v. Boulting, 3 S. & T. 329 ; 33 L. J., P. & M. 33). To establish connivance on the part of the husband it must be clearly shown that he consented or acquiesced, either actively or passively, to or in the wife's adultery. It is not necessary to prove that he was an accessory before the fact, but it must appear that he was cognizant that adultery would follow from transactions of which he approved and to which he gave his consent. The term " connivance" means not merely a refusal to see an act of adultery, but also a wilful abstention from taking any step to prevent an adulterous intercourse which, from what passes before the husband's eyes, he must reasonably expect to occur. An intention that adultery should follow, or a reckless disregard whether it followed or not under circum- stances showing that it was highly likely to follow, constitute " connivance" (Gipps v. Gipps, 11 H. L. Cas. 1 ; 33 L. J., P. & M. 161 ; Phillipsy. Phillips, 1 Eobert. 145 ; Moorsom v. Moorsom, 3 Hagg. E. E. 107 ; Gilpin v. Gilpi n, 3 Hagg. E. E. 150 ; Ghnnie v. Glennie and Bowles, 31 L. J., P. & M. 171 ; Harris v. Harris and Burke, 2 S. & T. 530 ; 31 L. J., P. & M. 69). But the presumption is against connivance, and if the acts are equivocal the Court will presume against connivance (Phillies V. Phillips ; Moorsom v. Moorsom, ubi supra). Mere dulness of apprehension or lack of foresight is not suffi- cient to constitute connivance (Allen v. Allen and D'Arcy, 30 L. J., P. & M. 2). But if a man voluntarily blinds himself to the probable con- sequences of an intimacy between his wife and another man of which he is fully aware, and the acts and conduct of the wife and the third person are such as to make adultery between them highly likely, the husband will be held to have connived at the offence, even though he has taken no active steps to bring it about (Gipps v. Gipps, ubi supra). DISSOLUTION OF MAERIAGE. 75 So where a husband agreed to -withdraw his suit for dissolu- 8 IS. tion of marriage in consideration of a sum of money to be paid u connivance by the co-respondent in lieu of damages, but made no stipula- on part of tions as to the wife's future conduct, and, on the failure of the husband. co-respondent to fulfil his part of the agreement, filed another petition charging a different act of adultery between the same parties, it was held that his conduct amounted to connivance at or consent to the wife's intercourse with the co-respondent (Gipps v. Gipps, ubi supra). Again, where a husband, who was at the time aware of an adulterous intercourse between his wife and the co-respondent, entered into an agreement with them whereby he covenanted to allow his wife to live separate from him as if unmarried, and to give her a certain maintenance, and the co-respondent cove- nanted that the wife should not molest her husband, that she should maintain a child of which the husband believed the co-respondent to be the father, and that the co-respondent should indemnify the husband against her debts, the Court held that the agreement was virtually an assignment of his wife by the husband to the co-respondent (Walton v. Walton, 28 L. J., P. & M. 97). A husband allowed a man to visit frequently at his house in his absence, to send provisions there and to make his wife an allowance of 11. a week. He also sent his wife to borrow money of the same person, and allowed the latter to escort her on a journey to London. The jury acquitted the husband of connivance, but found that he had been guilty of conduct con- ducing to the adultery (Brown v. Brown and Robey, 21 L. T. 181). Connivance on part of wife. To constitute connivance on the Connivance part of the wife, it is not necessary that there should be a on P art of willing consent to the husband's adultery. She may be un- willing to consent to his living with another woman, but if, under pressure of circumstances, short of force in the nature of duress, she should withdraw her scruples, that would amount to connivance on her part. Nor is it any the less connivance if she ultimately consents to his conduct in order to obtain an allowance from him (Ross v. Ross, L. E., 1 P. 734; 38 L. J., P. & M. 49). A deed of separation securing an allowance to the wife does not per se prove connivance on her part at the adultery of her husband, in the absence of evidence that she was at the time 76 THE INDIAN DIVORCE ACT. 12. aware of, and acquiesced in, her husband's misconduct with "connivance another woman (Ross v. Ross, ~L. E.,1 P. 374; 38 L. J., P. &M. 49). on part of But the case is very different when the wife is fully aware of _ e ' her husband's adulterous intercourse. So, where a husband and wife executed a deed of separation which recited that the former had been living for some time with a Miss H., and referred to certain articles of agreement concerning trust moneys and other property to which Miss H. as well as the husband and wife had been parties, it was held that the execution of the deed by the wife, who knew at the time that her husband was cohabiting with Miss H., was virtually a consent to the continuance of the adulterous intercourse (Thomas v. Thomas, 2 S. & T. 113; 3 L. T. 180). But equivocal conduct or words will not be presumed to con- stitute connivance, and will, if possible, receive an innocent interpretation. Where, therefore, a husband and wife executed a deed of separation which contained the expression " whatever his" (i.e., the husband's) "way of living may be," and it was proved that before the execution of the deed the husband had been guilty of adultery, the Court held that, as the evidence was conflicting, it would presume in favour of an innocent meaning to the expression (Studdy v. Studdy, 1 S. & T. 321 ; 28 L. J., P. & M. 105). An agreement between the husband and wife that the husband shall commit adultery, so as to enable the wife to obtain a divorce, constitutes connivance on her part at the adultery when com- mitted (Todd v. Todd, L. E., 1 P. 121 ; 35 L. J., P. & M. 34). The wife of a domiciled Englishman went out to join him in America, where he was living, and subsequently there obtained a decree dissolving the marriage, with liberty to either party to marry again. The husband afterwards married A. , and it was held, in a suit instituted by the wife in England for a dissolution of the marriage on the ground of her husband's adultery with A., that her suit could not be maintained; either the decree of the American Court was valid, in which case the husband was at liberty to marry again, or, if it was invalid, the wife, at whose instance the decree had been made, could not complain of its probable consequences, and must be regarded as having connived at the adultery (Palmer v. Palmer, 1 S. & T. 551 ; 29 L. J., P. & M. 26). Where a husband had committed incestuous adultery with his wife's sister, and that to the wife's knowledge, and yet the wife allowed the husband and her sister to travel out together to DISSOLUTION OF MAEEIAGE. 77 India, the Court held that her conduct, though injudicious, was c jg^ due to an anxiety to spare her family the disgrace of an exposure, connivance and did not amount to connivance at the subsequent adultery on part of between her husband and sister, especially as she had made the m J _ former swear to have no further intercourse with the latter (Turton v. Turton, 3 Hagg. 338). Connivance generally : delay in suing. Whilst on the one hand Delay in there is no absolute limitation in the case of a petition for disso- 8U ' n 8' lution of marriage, yet, on the other hand, the first thing which connivance the Court looks to when a charge of adultery is preferred is whether there has been such delay as to lead to the conclusion that the petitioner had either connived at the adultery or was wholly indifferent to it. But any presumption arising from apparent delay may always be rebutted by an explanation of the circumstances (Williams v. Williams, I. L.JR,., iii Gale. 688). " The first thing which the Court looks to when a charge of adultery is preferred is the date of the charge relatively to the date of the criminal fact and knowledge of it by the party, because, if the interval be very long between the date and knowledge of the fact and the exhibition of them to this Court, it will be indisposed to relieve a party who appears to have slumbered in sufficient comfort over them, and it will be inclined to infer either an insincerity in the complaint, or an acquiescence in the injury, real or supposed, or a condonation of it. It there- fore demands a full and satisfactory explanation in order to take it out of the reach of such interpretations " (per Lord Penzance, Boulting v. Boulting, 33 L. J., P. & M. 33). Petitioner, who has connived at one act of adultery, suing in respect of another act of adultery. As regards their consequences, there is a difference between condonation and connivance. Condonation is forgiveness of the particular offence or offences known to and condoned by the party forgiving; it is not affected by the existence of, and does not operate as a forgiveness of, other unknown or subsequent adulteries (Bernstein v. Bernstein, (1893) P. 292; 63 L. J., P. & M. 3 C. A.). Connivance, on the other hand, operates as a complete bar to a suit not only in respect of the particular adultery connived at, but also in respect of any other adulteries whether committed with the same person, adultery with whom was connived at, or with any other person. Therefore, a petitioner who has con- nived at a certain act of adultery with A. is thereafter debarred 78 THE INDIAN DIVORCE ACT. "Condona- tion" : a question of fact. 12. fr m su i n g either in respect of other subsequent acts of adultery - -with A., or in respect of any acts of adultery with Z. (Lovering v. Lovering, 3 Hagg. 85 ; Gipps v. Gipps and Hume, 3 S. & T. 116; 32 L. J., P. & M. 78). But if the adultery with Z. be committed long after the adultery with A., which was connived at, the petitioner may possibly be held entitled to relief (see Hodges v. Hodges, 3 Hagg. 118 ; Rogers v. Rogers, 3 Hagg. 57). This, however, is exceedingly doubtful. " Condonation" : Generally. Condonation is a conclusion of fact and not of law, and means a full and absolute forgiveness of a con- jugal offence with a knowledge of all that is forgiven ; it is not affected by the existence, and does not operate as a for- giveness, of other unknown adulteries (Bernstein v. Bernstein, (1893) P. 292 ; 63 L. J., P. & M. 3; Peacock v. Peacock, 1 S. & T. 183; 27 L. J., P. & M. 71 ; Dempsters. Dempster, 2 S. & T. 438; 31 L. J., P. & M. 20). To be perfect, condonation, especially on the part of the wife, must be voluntary and unconditional ; therefore, a forced return to cohabitation is no condonation ( Cooke v. Cooke, 3 S. & T. 26 ; 32 L. J., P. & M. 154; in app., 3 S. & T. 246). But, although condonation is an absolute and unconditional forgiveness of the offence, there is in all condonation an implied condition that the misconduct condoned shall not be repeated, and a breach of such condition revives the original offence, even if the breach consists in misconduct which is not ejusdem generis with the offence condoned (Curtis v. Curtis, 1 S. & T. 192; 27 L. J., P. & M. 73 ; in app., 28 L. J., P. & M. 55). Condonation amounts, therefore, to a blotting-out of the offence imputed so as to restore the offending party (so long as the implied condition is not broken) to the same position which he or she occupied before the offence was committed (Keats v. Keats and Montezuma, 1 S. & T. 334 ; 28 L. J., P. & M. 57). Condonation As regards the offence of adultery, it is expressly provided in of adultery. gect 14 tliat ^ch offence shaU not be deemed to have been condoned unless conjugal cohabitation has been resumed or continued. And " conjugal cohabitation " means, generally speaking, conjugal intercourse and not the mere living together in the same house. The fact that a husband continues to sleep in the same bed with his wife, after knowledge of her adultery, is not conclusive proof 'of condonation : it raises an exceedingly strong presumption DISSOLUTION OF MAERIAGE. 79 of condonation, but such presumption is capable of being re- 8 12 butted by evidence (Hall v. Hall, 60 L. J., P. & M. 73). " coiidona- As regards other matrimonial offences, the rule is also that, tion" to be perfect, condonation must be followed by cohabitation. 7j 7 ,. Words alone, however strong, can at the highest be only regarded O f other as imperfect forgiveness, and unless followed up by something matrimonial which amounts to reconciliation and to a reinstatement of the offender in the condition in which he or she was before the transgression, such forgiveness must remain incomplete (Keats v. Keats and Montezuma, 1 S. & T. 334; 28 L. J., P. &M. 57). It is not enough to show that the husband returned to con- jugal cohabitation after receiving evidence of his wife's adultery; it must be proved that he gave credit to that evidence and received her back, believing her to be guilty and intending to forgive her. Where, therefore, in answer to an action for main- tenance, the husband alleged his wife's adultery but failed to prove it, and thereafter cohabited with her, the Court refused to conclude that he had condoned the adultery (Ellis v. Ellis and Smith, 4 S. & T. 154 ; 34 L. J., P. & M. 100; cf. Adleyv. Adley, No. 70, Punjab Record, 1873). Condonation on tlie part of the wife. There is even less pre- Condonation sumption in favour of condonation on the part of the wife than *LP ' on the part of the husband. It is a merit in her to bear, to be patient and to endeavour to reclaim, nor is it her duty, till compelled by the last necessity, to have recourse to legal remedy (D'Aguilar v. D'Aguilar, 1 Hagg. 786 ; Beeby v. Beeby, 1 Hagg. 793 ; Durant v. Durant, 1 Hagg. 752). ' ' A woman has not the same control over her husband, has not the same guard over his honour, has not the same means to enforce the observance of the matrimonial vow ; his guilt is not of the same consequence to her ; therefore, the rule of condona- tion is held more laxly against her " (D'Aguilar v. D'Aguilar, ubi supra], " The effect of cohabitation is held less stringently on the wife ; she is more sub potestate, more inops consilii, she may entertain more hopes of the recovery and reform of her husband " (Beeby v. Beeby, ubi supra], Condonation on the part of the wife is not lightly to be pre- sumed from a continuance of cohabitation after the commission of one or even of several acts of cruelty by the husband : in such cases the continuance of cohabitation may be due to the appre- hension of some eyil which is considered greater than personal 80 THE INDIAN DIVORCE ACT. 12 i n J ur y > e -9't the privation of children (Curtis v. Curtis, 1 S. & "condonal T. 192 ; 27 L. J., P. & M. 73). tion." Offence con- Offence condoned may be revived by subsequent misconduct. revive . Although condonation means an absolute forgiveness of the offence condoned, there is, in all condonation, an implied condi- tion that the misconduct shall not be repeated, and a breach of such condition, even if it consist in misconduct which is not ejusdem generis the condoned misconduct, revives the former offence (Curtis v. Curtis, 1 S. & T. 192; 27 L. J., P. & M. 73 ; in app., 28 L. J., P. & M. 55). (a) Cruelty. (a) Condoned cruelty. Cruelty which has been condoned may be revived without actual violence by threats of such a nature as to satisfy the Court that future cohabitation would be attended with danger to the party so threatened (Bostock v. Boslock, 1 S. & T. 221 ; 27 L. J., P. & M. 86; Mytton \. Mytton, 11 P. D. 141). Condoned cruelty may also be so revived by subsequent adultery as to form, coupled with that adultery, a ground for decree of dissolution of marriage (Palmer v. Palmer, 2 S. & T. 61 ; 29 L. J., P. & M. 124). But a wife who has agreed for valuable consideration not to take any proceedings against her husband in respect of his past cruelty is not entitled, when he subsequently commits adultery, to complain of such cruelty (Rose v. Hose, 1 P. D. 225). (b) Desertion. (b) Condoned desertion. Where a husband whose previous adultery and desertion had been condoned by a return to co- habitation on the part of the wife, subsequently again committed adultery, it was held that his misconduct revived the previously condoned offences (Blandford v. Blandford, 8 P. D. 19 ; 52 L. J., P. & M. 17). (c) Adultery. (c) Condoned adultery. There is no question that subsequent adultery will revive previously condoned adultery, but it is not altogether free from doubt whether any misconduct other than adultery will revive adultery which has been previously condoned. It has, on the one hand, been held that condoned adultery may be revived by subsequent cruelty (Dent v. Dent, 4 S. & T. 105; 34 L. J., P. & M. 100; Moore v. Moore, (1892) P. 382; 62 L. J., P. & M. 10), or even by improprieties of conduct tending to, DISSOLUTION OF MARRIAGE. 81 but falling short of, adultery (Pereira v. Pereira and Bonn jour, R Jg^ I. L. E., v Mad. 118 ; Winscom v. Winscom and Plowden, 3 S. - & T. 380 ; 33 L. J., P. & M. 45 ; Ridgway v. Ridgway, 29 W. E. (Eng.) 612). On the other hand, the House of Lords has held that, in order to revive condoned adultery, the petitioner must prove adultery, and nothing less, subsequent to the condonation (Collins v. Collins, 9 App. Ca. 205 ; 32 W. E. (Eng.) 500). Collins v. Collins was, it is true, a Scotch case, and, in the opinion both of Jeune, J. (Rogers v. Rogers, (1894) P. 161 ; 63 L. J., P. & M. 97), and of Gorell Barnes, J. (Moore y. Moore, ubi supra], was not intended to overrule Dent\. Dent (ubi supra}. Lord Blackburn, however, in his judgment questioned Dent v. Dent on principle, and stated that even assuming it to be estab- lished English law that any matrimonial offence, though for- given, may be revived by any other matrimonial offence of which the Courts take cognizance, it was very modern law and not so obviously just and expedient that it ought to be inferred that it either was or ought to have been introduced into the law of Scotland. It has been held that condoned incestuous adultery may be revived by subsequent adultery which was not incestuous (New- some y. Newsome, L. E., 2 P. 306 ; 40 L. J., P. & M. 71). It is, however, doubtful whether subsequent adultery will revive con- doned bigamy (Furness v. Furness, 2 S. & T. 63; 29 L. J., P. & M. 133). Condonation expressly conditional. Of course if the party con- Condonation doning grants forgiveness only on the express condition that * a conditional, there is to be no repetition of matrimonial misconduct, any subsequent misconduct will constitute a breach of such con- ditional forgiveness and revive the former offence. Thus, where the husband had been guilty of incestuous adultery, but the wife forgave him and agreed not to take any steps against him. in respect of that offence provided that the husband remained true to her in love and duty, it was held that a subsequent act of adultery committed by him, although not incestuous, revived the previous incestuous adultery which had been condoned (Newsome v. Newsome, ubi supra). Express agreement not to sue in respect of condoned offence. If, however, the husband or wife has expressly and unconditionally agreed, with full knowledge of the facts, not to sue or to take R. G 82 THE INDIAN DIVORCE ACT. 13. Condonation pendente lite or after decree nisi. Condonation not pleaded. Condonation limited to offence condoned. any proceedings in respect of a condoned offence, the subsequent misconduct of the party, whose previous offence was so condoned, will not revive the former offence so as to entitle the other party to sue in respect of it (Rowley v. Rowley, L. E., 1 P. 63; Rose v. Rose, 7 P. D. 225 ; in app., 8 P. D. 98 ; 52 L. J., P. & M. 25). Condonation pending suit, or after decree nisi. If the parties have become reconciled and returned to cohabitation pending the suit or after the decree nisi, the Court may, upon the appli- cation of an intervenor or of the respondent or petitioner, dismiss the petition (Cooper v.[Cooper, 3 S. & T. 392 ; 33 L. J., P. & M. 71 ; Troward v. Troward, 32 W. E. (Eng.) 864 ; Flower v. Flower, (1893) P. 290; 63 L. J., P. & M. 22). It was originally held that condonation subsequent to the decree nisi was not a ground upon which the Court could reverse such decree if otherwise properly obtained, the reason given being that the words (in sect. 16) "not brought before the Court" related to the period previous to the decree nisi being granted (Lewis v. Lewis, 30 L. J., P. & M. 199; 2 S. & T. 394; cf. Culley T. Culley, I. L. E., x All. 559). But according to the more recent decisions the fact that con- donation has taken place subsequently to the decree nisi does not prevent the Court from dismissing the petition and rescinding the decree nisi (see, in addition to the cases above cited, Hulse v- Hulse and Tavernor, L. E., 2 P. 357 ; 41 L. J., P. & M. 19 ; Howarth v. Howarth, 9 P. D. 218 C. A.). Condonation not pleaded. Condonation, although not pleaded, will be noticed by the Court if proved at the hearing (Curtis v. Curtis, 4 S. & T. 234). But if, under such circumstances, the Court takes notice of condonation which has not been pleaded, it will also admit evidence of misconduct subsequent to the condonation, although such misconduct has not been pleaded (Suggate v. Suggate, 1 S. & T. 492 ; 29 L. J., P. & M. 167). Condonation strictly limited to offence condoned. Condonation means forgiveness of the particular offence or offences known to and condoned by the party forgiving; it is not affected by the existence, and does not operate as a forgiveness, of other adulteries unknown at the time to the party forgiving (Bernstein v. Bernstein, (1893) P. 292; 63 L. J., P. & M. 3 C. A.). In this case, the Court of Appeal (approving the earlier case of Story v. Story, 12 P. D. 196) held that a decree had rightly been granted to a petitioner who sued for a divorce on the ground of DISSOLUTION OF MAERIAGE. 83 Hs wife's adultery -with two co-respondents, although it was 12. proved that he had condoned the adultery with one of the latter, but that at the time of such condonation he was not aware that she had also committed adultery with the other co-respondent. Claim for damages after condonation. It was formerly held Claim for that condonation of the wife's adultery was no bar to a claim by the husband for damages against the person with whom such adultery had been committed (Pomero v. Pomero, 10 P. D. 174). The above case has, however, been recently overruled by the Court of Appeal, and it has been laid down that where, on a petition for divorce and for damages against the co-respondent, a divorce is refused on the ground that the adultery has been condoned, the petitioner is not entitled to a judgment, even for nominal damages, against the co-respondent, but the petition will be dismissed, and the claim for damages which is ancillary to, and dependent on, the petition, must be dismissed also, and the petitioner may be ordered to pay the co-respondent's costs (Bernstein v. Bernstein, (1893) P. 292; 63 L. J., P. & M. 3; cf. Story v. Story, 12 P. D. 196; Norris v. Norris, Lawson and Mason, 4 S. & T. 237). Suit for divorce by party whose previous adultery has leen Suit for dia- condoned. Although in Seller v. Seller (1 S. & T. 482; 28 L. J., solution by P. & M. 99) it was held that the adultery of a wife, if condoned J^ose own by the husband, is no bar to a suit by her for judicial separation adultery has on the ground of adultery subsequently committed by him ; and been con- in Hose v. Hose (8 P. D. 98 ; 52 L. J., P. & M. 25) Jessel, M. E., considered it an "open question" whether a husband's adultery which had been previously condoned would be a bar to a suit by him for divorce, it may now be taken as practically settled that condonation of the petitioner's previous adultery will not be regarded as a special circumstance to justify the Court in exer- cising its discretion in the petitioner's favour (Ooode v. Goode and Hansom, 2 S. & T. 253 ; 30 L. J., P. & M. 105 ; McCord v. McGord, Oyle and Caxon, L. E., 3 P. 237 ; 44 L. J., P. & M. 38 ; Story v. Story, 12 P. D. 196; 57 L. J., P. & M. 15; Stoker T. Stoker, 14 P. D. 60; 58 L. J., P. & M. 40; Boucher v. Boucher, 67 L. T. 720). In a suit for judicial separation, however, the Court has, apparently, a wider discretion, and may grant the petitioner, whose own adultery has been condoned, the relief prayed for (Gooch v. Gooch, (1893) P., at p. 105). 84 THE INDIAN DIVOECE ACT. 12. " Counter-charge against petitioner " : Counter- As to what may be pleaded by way of counter-charge, see charge. Appendix (E.), " Practice Answer." As regards costs of counter-charges, see Appendix (F.), "Costs." The inquiry into any counter-charge here referred to is limited to counter-charges duly made by a party to the pro- ceedings, in accordance with the rules of procedure and practice applicable to such party. Therefore, in an undefended suit for dissolution of marriage, where it appeared that after service of summons a letter purporting to be from the respondent was received by the judge by post, which letter imputed gross mis- conduct to the petitioner, such as if the respondent had appeared and put in a formal answer would have amounted to counter- charges within the meaning of this section, and the letter announced that the writer was unable to appear to defend for want of means, it was held by the Chief Court of the Punjab, that the Court was not bound on this communication to inquire into the imputations so made (Burroughs v. Burroughs, No. 62, Punjab Record, 1887). Where the respondent appears and makes counter- charges against the petitioner, which the latter denies, the Court is bound to make proper inquiry into the truth or otherwise of such counter-charges. Where, therefore, in a suit for dissolu- tion of marriage instituted in a district court, the court recorded the statements of the petitioner and respondent, caused the documentary evidence produced by both to be filed, and there- upon proceeded at once to pronounce a decree nisi, without fixing issues upon the statements of the parties or causing any further inquiry to be made, although the respondent alleged acts of cruelty and adultery against the petitioner subsequent to the marriage, which allegations were denied by the peti- tioner, the Chief Court of the Punjab refused to confirm the decree nisi, on the ground that the investigation had been defective to a substantial extent with reference to sects. 12 and 14 of the Act (Cooper v. Wane, No. 130, Punjab Record, 1879). Where, at the hearing of a petition by the husband for dis- solution of marriage on the ground of his wife's adultery, the wife makes a counter-charge of adultery against the petitioner, the latter may, as part of his case, give his own evidence and call his witnesses in answer to the respondent's charge, or he may, in the alternative, reserve his answer to the charge until DISSOLUTION OF MARRIAGE. 85 the respondent's witnesses in support of it have been examined ; 12. but he is not entitled to divide his case by giving his own " counter- evidence in the opening, and afterwards calling his witnesses in arffe ' reply to the respondent's charge (Jackman v. Jack-man, 14 P. D. 62; 58 L. J., P. &M. 72). 13. In case the Court, on the evidence in relation to Dismissal of any such petition, is satisfied that the petitioner's case P has not been proved, or is not satisfied that the alleged adultery has been committed, or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the Court shall dismiss the petition. When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), sect. 30, provides that : ' ' In case the Court, on the evidence in relation to any such petition, shall not be satisfied that the alleged adultery has been committed, or shall find that the petitioner has during the marriage been accessory to, or conniving at, the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the Court shall dismiss the said petition." " Satisfied on the evidence " : Evidence. As regards evidence of adultery, see Appendix (C.), "Proof of Adultery." 86 THE INDIAN DIVORCE ACT. 13. " Petition presented or prosecuted in collusion with either " Collusion." f the respondents " : The word "collusion" has at times been loosely used as including " connivance," or agreements between the parties to commit an offence (see Todd v. Todd, ante, p. 76), or even conduct conducing to adultery (see Sugg v. Sugg and Moore, 31 L. J., P. & M. 41). But, as used in the Indian Divorce Act, the term is limited to any agreement or understanding between the petitioner and either or both of the respondents, or agents acting on their behalf and with their knowledge, as to the presentation of the petition or the conduct and prosecution of the suit (Lloyd v. Lloyd, 1 S. & T. 567 ; 30 L. J., P. & M. 97). To establish collusion, therefore, there must be some kind of understanding, or an express agreement, between the parties or agents acting on their behalf and with their knowledge, either to put forward a false case or to stifle a defence (Gethin v. Gethin, 31 L. J., P. & M. 43; Adley v. Adley, No. 70, Punjab Record, 1873). Collusion may consist in the keeping back evidence of what would be a good answer to the petition (Jessop v. Jessop, 2 S. & T. 302 ; Bacon v. Bacon and Ashby, 25 W. E. 560 ; Drummond v. Drummond, 30 L. J., P. & M. 177). So, where both parties, being equally guilty, agree to put forward the guilt of one party alone, it amounts to collusion (Gray v. Gray, 2 S. & T. 559). And it is equally collusion if the parties agree inter se to keep back pertinent and material facts which might be adduced against the petitioner in support of a counter-charge by the respondent or co-respondent, even though the suppressed facts might not have been sufficient to establish the counter-charge (Hunt v. Hunt and Wright, 47 L. J., P. & M. 22). It has, indeed, been held that, if the petitioner is otherwise entitled to a decree, the suppression of material facts which might have been adduced is not necessarily a ground for refusing a decree (Alexander v. Alexander, L. B., 2 P. 164; 39 L. J., P. & M. 84, approved in Rogers v. Rogers, (1894) P. 161 ; 63 L. J., P. & M. 97, by Jeune, J.). But this principle has been doubted by the Court of Appeal in Butler v. Butler (15 P. D. 66 ; 59 L. J., P. & M. 25), where the law was stated to be as laid down in Hunt v. Hunt and Wright (supra]. For, in the words of Lopes, L.J., in Butler v. Butler, "the object of this special DISSOLUTION OF MARRIAGE. 87 provision with, regard to collusion is to compel the parties to 13. come into the Court of Divorce with clean hands. It is to "collusion." oblige them to bring all material and pertinent facts to the notice of the Court ; to prevent their blinding the eyes of the Court in any respect ; to oblige them so to act as to enable the Court to be in a position to do justice between the parties." It amounts to collusion if the parties concur in getting up the evidence of the case, even if it be a true case (Midgeley f. c. Wood v. Wood, 30 L. J., P. & M. 57). And there may be collusion, even though no facts have been falsely dealt with or withheld (Churchward v. Churchward, (1895) P. 7; 64 L. J., P. & M. 18). But where, in an undefended suit, it appeared at the hearing that the wife had given the petitioner's solicitor a photograph of herself, and attended at the hearing to aid in her identi- fication, and for so doing received money from the said solicitor, the Court, notwithstanding, was satisfied that there was no collusion between her and the petitioner, and pro- nounced a decree nisi (Harris v. Harris and Lambert, 31 L. J., P. & M. 160). "Where, however, subsequently to the institution of a suit for divorce, and on the same day that it came on for hearing, the petitioner and respondent each filed petitions setting out an agreement between them that from that date their marriage should be dissolved, that neither of them should have any claim against the other, and that each should be at liberty to marry again, and praying that dissolution might be granted on these terms, each party bearing his or her own costs, it was held that such an agreement amounted to collusion within the meaning of sect. 13 (Christian v. Christian, I. L. E., xi Calc. 651). The mere fact of the husband making his wife an allowance in lieu of alimony while the suit is pending is not per se proof of collusion. But where a husband both before and after presenting his petition had several interviews with his wife, and at such inter- views gave her sums of money, urging her not to oppose the petition, and promising her that, if she complied with his request, he would do no harm to the co-respondent, and would be a friend to her when the decree was passed, and the respondent and co- respondent did not appear at the trial, and material facts show- ing that the petitioner's conduct had conduced to the adultery were withheld, the Court held that these facts proved collusion between the parties (Barnes v. Barnes and Grimwade, L. E., 1 P, oo THE INDIAN DIVORCE ACT. 13. 505; 37 L. J., P. & M. 4; cf. Bacon v. Bacon and Asliby, 25 "collusion." "W. E. 560). On the other hand, where, on the termination of an adulterer's intercourse, an agreement was entered into between the hus- band and the adulterer that the latter should pay the expenses of the wife's return to England and allow her 1007. per annum, and the husband on his part undertook that the adulterer should be put to no expense by any proceedings to be taken for the purpose of obtaining a divorce, it was held that as the agree- ment was made for the purpose of restoring the wife to her friends and not with a view to the continuation of the adultery, it was no bar to a divorce (Ratcliffe v. Batcliffe and Anderson, 1 S. & T. 467 ; 29 L. J., P. & M. 171). Collusion be- Collusion between the parties' agents. Any agreement or under- tween agents standing as to the conduct of the suit between the agents of the parties, acting on their behalf and with their knowledge, consti- tutes collusion. If, however, the parties themselves are ignorant of the irregularities committed by their agents, the suit will not be dismissed on that ground (Cox v. Cox, 30 L. J., P. & M. 255; 2 S. & T. 306 ; Lloyd v. Lloyd and Chichester, 1 S. & T. 567 ; 30 L. J., P. & M. 97). Expression Expression of desire for divorce. It does not amount to collu- of desire for B j on f or a party to express a wish for divorce. The respondent divorce. , -i , i_ L * -. -L , -< * and co-respondent might wish it, but the mere expression of a desire on their part to obtain a divorce where the petitioner accepts no assistance from them nor enters into any agreement or understanding that they shall facilitate it by evidence or otherwise, will not amount to collusion (Adley v. Adley and Campion, No. 70, Punjab Record, 1873, citing Cox v. Cox; Getliin v. Gethin; and Lloyd v. Lloyd and Chichester, ubi supra'). Collusion Collusion subsequent to decree nisi. The decree nisi may have subsequent to been properly obtained, but if it is proved that, subsequently to >m ' such decree, there has been collusion between the parties with a view to concealing material facts from the Court and thus in- ducing the Court to make the decree absolute, which, if it had the suppressed facts before it, it would not do, the Court will rescind the decree nisi. Thus, where a wife, who had obtained a decree nisi for dis- solution of marriage, was subsequently visited by the respon- dent, and there was an agreement between them to keep the DISSOLUTION OF MARRIAGE. 89 visits from the knowledge of the Court, and the respondent, 13. after so cohabiting with his wife, committed adultery with another woman, the Court held that the respondent's subse- quent adultery revived the condoned offences, but that the agreement to conceal the condonation amounted to collusion, and, therefore, the decree nisi must be rescinded (Rogers v. Rogers, (1894) P. 161 ; 63 L. J., P. & M. 97). Collusion means collusion in the suit pending. Collusion in this Must be in section means, and is confined to, collusion in the suit pending the pending before the Court. Where, therefore, the Queen's Proctor moved to dismiss a husband's petition for divorce on the ground that in a former suit he had been found guilty of adultery and collusion, the Court held that, although the fact of the petitioner's adultery could not be again disputed, yet it would be open to him to show such circumstances as would get rid of its effect, and that, if he could do so, the fact that he had in a previous suit been guilty of collusion would not disentitle him to relief in the present suit (Butler v. Butler, No. 1, (1893) P. 185; 62 L. J., P. & M. 105). " The Court shall dismiss the petition " : Court shall dismiss. These are not, of course, the only grounds upon which a petition may be dismissed. As regards the abatement of suits, see ante, p. 38, and as regards the dismissal or withdrawal of petitions upon grounds other than those stated in sects. 12 and 13 of the Act, see Appendix (E.), "Practice"; "Dismissal and Withdrawal of Petitions." " May present a similar petition to the High Court " : Similar This means a petition based on the same allegations as were contained in the petition which was dismissed ; it is not com- petent to the petitioner in such an event to put forward, in his petition to the High Court, a fresh case compounded of new acts of adultery and of acts previously in litigation (Beanlands v. Beanlands, No. 45 Punjab Record, 1871). There is no similar provision made in the Act in respect of suits for judicial separation, nullity of marriage, or restitution of conjugal rights. 90 THE INDIAN DIVORCE ACT. 13. If, instead of presenting "a similar petition" to the High Court, the petitioner prefers to appeal, it is open to him or her to do so under sect. 55, post. Power to Court to 5 renounce ecree for dissolving marriage. Condonation. 14. In case the Court is satisfied on the evidence that the case of the petitioner has been proved, and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the mar- riage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, the Court shall pronounce a decree declaring such mar- riage to be dissolved in the manner and subject to all the provisions and limitations in sections sixteen and seventeen made and declared : Provided that the Court shall not be bound to pro- nounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the mar- riage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reason- able excuse, or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery. No adultery shall be deemed to have been condoned DISSOLUTION OF MARRIAGE. 91 within the meaning of this Act unless where conjugal 14. cohabitation has heen resumed or continued. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), sect. 31, provides that: " In case the Court shall be satisfied on the evidence that the case of the petitioner has been proved, and shall not find that the petitioner has been in any manner accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then the Court shall pronounce a decree declaring such marriage to be dissolved : Provided always, that the Court shall not be bound to pronounce such decree if it shall find that the petitioner has during the mar- riage been guilty of adultery, or if the petitioner shall, in the opinion of the Court, have been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery." " In case the Court is satisfied on the evidence that the case of the petitioner has been proved" : On the subject of Evidence of Adultery, see Appendix (C.), " Proof of Adultery." A decree for dissolution of marriage cannot be made merely Admissions on admissions and without recording evidence (Bai Kanku v. by ^ e parties. Shiva Toya, I. L. K., xvii Bom. 624). So where, in a suit for dissolution of marriage, the District Court recorded the statements of the petitioner and respondent, and caused the documentary evidence produced by both to be filed, and thereupon proceeded at once to pronounce judgment granting a decree nisi, without fixing issues upon the statements of the parties or causing any further inquiry to be made, although the respondent made counter- charges against the petitioner which were denied by him, the Chief Court of the Punjab refused to confirm the decree nisi on the ground that the investigation was defective to a substantial extent with reference to sects. 12 and 14 of the Act (Cooper v. Wane, No. 130 Punjab Record, 1879). And although sect. 51, Proviso, gives liberty to the parties, Affidavits, under certain specified conditions, " to verify their respective 92 THE INDIAN DIVORCE ACT. 14. cases in whole or in part by affidavit," it is only in very special circumstances that the Court will allow this to be done (see note to sect. 51, post]. Nor is the petitioner entitled as of right to give evidence by affidavit (Skinner v. Skinner, No. 13 Punjab Record, 1891). As regards affidavits generally, see Chapter XVI. of the Civil Procedure Code. Court to pronounce a decree of dissolution. Decree of judicial separation at prayer of petitioner. " The Court shall pronounce a decree declaring such mar- riage to be dissolved" : The Court is not bound to pass a decree of dissolution, and the petitioner may, under certain circumstances and irrespective of the respondent's consent, be permitted to amend the petition to one for judicial separation, even after proof of facts entitling the petitioner to a decree of dissolution (Dent v. Dent, 4 S. & T. 105; 34 L. J., P. & M. 118). In a suit by the wife for dissolution of marriage, she proved both charges against the respondent, and the decree nisi was suspended at her request ; she subsequently applied to amend the petition by substituting a prayer for judicial separation, but as the respondent opposed the alteration, and alleged that the wife had herself been guilty of adultery, the Court granted liberty to the respondent to file affidavits in support of his charge, and, on no affidavits being so filed within the period fixed, allowed the petition to be amended as prayed (Mycock v. Mycock, L. E., 2 P. 98; 39 L. J., P. & M. 56). If, however, the petitioner has been proved guilty of any such conduct as is hereinafter specified, the Court will not allow the petition to be amended to one for judicial separation (Boreham v. Boreham, L. E., 1 P. 77). Further, it is competent to the Court, irrespective of the respondent's consent, to grant a decree of judicial separation, although the petition prays for dissolution of marriage, if the facts proved entitle the petitioner to the former but not to the latter relief (Smith v. Smith, 1 S. & T. 359; 28 L. J., P. & M. 27; Bromfield v. Bromfield, 41 L. J., P. & M. 17; Grossi v. Orossi, L. E., 3 P. Ill ; 42 L. J., P. & M. 69). Where a decree nisi had been obtained by the wife on the grounds of her husband's adultery and cruelty, but it afterwards appeared, on the intervention of the Queen's Proctor, that the adultery had been brought about, without her knowledge, by her solicitor's clerk, the Court rescinded the decree nisi, but DISSOLUTION OF MARRIAGE. 93 refused to dismiss the wife's petition in order to give her an 14. opportunity of applying for judicial separation (Bell v. Bell, 58 L. J., P. & M. 54). " Provided that the Court shall not be bound " : Discretion of In granting or refusing a decree of dissolution of marriage, the Courts in India will adopt, as a guide in the exercise of their judicial discretion given by this section, the principles laid down in the English decisions with regard to the corresponding section in the English Act (20 & 21 Viet. c. 85, s. 31). Such discretion must be a regulated discretion, and the Court cannot grant or withhold a decree on the mere footing that the petitioner's adultery is more or less pardonable, or that it has been more or less frequent. There must be special circumstances attending the commission of such adultery, or special features placing it in some category capable of distinct statement and recognition, in order that the discretion may be fitly exercised in favour of a petitioner (G. v. G., 8 Bom. H. C., O. C. 48; cf. Morgan v. Morgan and Porter, L. E., 1 P. 644; 38 L. J., P. & M. 41). And in India, where there is no public officer corresponding to the Queen's Proctor, a judge, exercising jurisdiction under this Act, ought to make a large use of his powers to look into any matters which may' come under his notice, affecting the proper exercise of the discretionary powers of the Court to grant or withhold a divorce under specified circumstances, even though such matters are not brought to his notice by a party to the proceedings or an intervener (Lisley v. Lisley, No. 6 Punjab Record, 1888). But when the case of a petitioner has been duly proved, and the Court does not find that he has been accessory to, or con- niving at, the adultery, or that there has been any condonation, or collusion, or connivance, the Court is bound to grant him a decree of dissolution unless it is established affirmatively that the petitioner has been guilty of one of the acts which gives the Court a discretionary power to refuse to dissolve the marriage (Haswellv. Haswell and Sanderson, 1 S. & T. 502 ; 29 L. J., P. & M. 21 ; cf. Mordaunt v. Mordaunt and Moncrieffe, L. E., 2 H. L. (Sc.) 374; 43 L. J., P. & M. 49). " Petitioner has during the marriage been guilty of Petitioner'a adultery " : adultery. The cases are very few indeed in which a petitioner, who has during the marriage been guilty of adultery, will be granted a 94 THE INDIAN DIVORCE ACT. 14. decree of dissolution of marriage (Wildey v. Wildey and Ryder, 26 W. E. (Eng.) 239; Hick v. Hick and Kitchen, 34 L. J., P. & M. 11; Drummond v. Drummond, 30 L. J., P. & M. 177; Lautour v. Lautour, 10 H. L. Ca. 685). Nor, as a general rule, does the Court feel justified in visiting with the penalty of adultery a wife whose husband has also been found guilty of that offence (Barnes v. Barnes and Beaumont, L. E., 1 P. 572 ; 38 L. J., P. & M. 101). Therefore where, in a suit by the husband for dissolution of marriage, the jury found that the husband as well as the wife had been guilty of adultery, but it appeared that the husband's misconduct was long antecedent to that of the wife, who apparently did not know of it until the filing of the petition, the Court refused to grant him a decree, on the ground that mere lapse of time would not justify the exercise of the Court's discretion in his favour (Morgan v. Morgan and Porter, L. E., 1 P. 644; 38 L. J.,P. &M. 41). So, where the petitioner in a suit for dissolution of marriage, after his case had been proved, tendered himself for examination, and confessed that on a single occasion, during a separation from his wife, he had committed an act of adultery, the Court refused to grant him a decree (Clarke v. Clarke and Clarke, 34 L. J., P. & M. 94). Nor was the Court more indulgent to a petitioner whose single act of adultery had been committed under the influence of drink and had been subsequently condoned by the wife (Grosvenor v. Orosvenor, 34 W. E. (Eng.) 140). The Ecclesiastical Courts in England, in refusing relief to a petitioner under such circumstances, adopted the rule of the canon law, mutud compensations ambo adulteria abolentur, and held that the adultery of the one party to the marriage acted as a sort of compensation for the adultery of the other (Seaver v. Keaver, 2 S. & T. 665 ; Forster v. Forster, 1 Hag. Cons. 148). That is to say, that the adultery of the petitioner wiped out the adultery of the respondent, and thus both parties were regarded as innocent of any matrimonial offence. But the Divorce Court, in refusing a petitioner, who has been guilty of adultery, a decree of dissolution or even of judicial separation, acts on the principle that the party who prays for relief must come into the Court with clean hands. In the words of Cotton, L. J., "A wife having been guilty of adultery has put herself in such a position that she cannot be considered as an innocent party in any proceedings which might have been taken in the old Eccle- DISSOLUTION OF MARRIAGE. 95 siastical Courts, or which might now bo taken in the Court of 14. Divorce ; and therefore, on that ground, she is not in a position to come to that Court to give her any relief as to any matri- monial offence which the husband may have committed, or to put it on the ground of compensation for a crime of the same nature " (Otway v. Otway, 13 P. D. 141 ; 57 L. J., P. & M. 81). In this case the wife (petitioner) and the husband had been both guilty of adultery, but the wife claimed to set off her hus- band's adultery as compensation for her own, and to be entitled to a decree for j udicial separation on the ground of his aggravated cruelty. The Court of Appeal, however, refused to accede to the argument based on the doctrine of compensatio criminis, and dismissed her petition on the broad ground that she did not come into Court with clean hands. But to act as a bar to the petitioner's suit, the adultery must Adultery- have been committed during the marriage of which a dissolution P rior . to is sought. Adultery committed prior to the marriage will not sought to be disentitle the petitioner to relief (Styles v. Styles, 62 L. T. 613). dissolved. Condonation of the Petitioner's Adultery. Condonation of petitioner's The older decisions were to the effect that the petitioner's adultery. adultery, if condoned, was no bar to a suit for dissolution of marriage, or for judicial separation (Anichiniy. Anichini, 2 Curt. 210; Seller v. Seller, 28 L. J., P. & M. 99). And in a comparatively recent case, Jessel, M. E., stated that, though the question remained open, it was his impression that adultery by a husband which had been condoned was not neces- sarily a bar disentitling him to a decree for dissolution on the ground of the wife's subsequent adultery (Rose v. Rose, 8 P. D. 98; 52 L. J., P. & M. 25). So, too, the present President of the English Divorce Court stated in the case of Gooch v. Gooch ((1893) P. at p. 105) that " in cases of judicial separation, con- donation gives to the Court a discretion to grant the relief not- withstanding the adultery of the petitioner." But there can be no doubt that the later decisions all point to a reluctance on the part of the Court to grant relief to a petitioner who has been guilty of adultery, and to a refusal to regard the condonation of such adultery as a sufficient justification of the exercise of its discretion in favour of such a petitioner (Goode v. Goode and Hansom, 2 S. & T. 253; 32 L. J., P. & M. 105; McCord v. McCord and Ogle, L. E., 3 P. 237 ; 44 L. J., P. & M. 38 ; Grosvenor v. Grosvenor, 34 W. E. (Eng.) 140; Story v. Story, 96 THE INDIAN DIVORCE ACT. 14. 12 P. D. 196; 57 L. J., P. & M. 15 ; Stoker v. Stoker, 14 P. D. 60 ; 58 L. J., P. & M. 40 ; Boucher v. Boucher, 67 L. T. 720). Exceptions to general rule. (a) Adultery committed in ignorance of fact. (b) Adultery committed in ignorance of law. Exceptions to General Rule. In certain exceptional cases the Court may exercise its discre- tion in favour of a petitioner despite the fact that he or she has also been guilty of adultery. These cases may be thus classified (1) where the adultery has been committed in ignorance of (a) fact, or (b) law ; (2) where the wife is the petitioner, and her adultery was due to compulsion exercised over her by the husband in order to force her to commit adultery ; and though this is exceedingly doubtful (3) where the petitioner's adultery con- sisted of but a slight lapse, was long antecedent to, and dis- connected with that of the respondent, was condoned and was never afterwards repeated. (i) Adultery by petitioner committed in ignorance of fact. Where a husband, in the bond fide belief that his wife was dead, married again and discovered that his wife was alive and had committed adultery, the Court granted him a decree nisi notwithstanding his own bigamy with adultery (Freegard v. Freegard, 8 P. D. 186; 52 L. J., P. & M. 100). So where a wife, who had been deserted by her husband for over sixteen years and who believed that her husband was dead, married another man and subsequently discovered that her hus- band was alive and had committed adultery, it was held that, notwithstanding her bigamy, she was entitled to a decree (Potter v. Potter, 67 L. T. 721). But the Court must be satisfied that the petitioner at the time of the second marriage had a bond fide belief that the other party was dead (Joseph v. Joseph and Wenzel, 34 L. J., P. & M. 96). (b) Adultery by petitioner committed in ignorance of law. " It has been said that ignorance of law is no excuse. But when the Court has a discretion, the petitioner's ignorance of the law may be properly excused" (Noble v. Noble and Goodman, 38 L. J., P. & M. 52). So, where a husband, in ignorance of the law, went through a form of marriage two weeks after he had obtained a decree nisi for the dissolution of his first marriage, his adultery was held to be excusable (Noble v. Noble and Goodman, supra}. So, where a petitioner married another woman after the decree nisi DISSOLUTION OF MARRIAGE. of the District Court but before it had been confirmed, the a 1^* Court, under the circumstances of the case, confirmed the decree despite the petitioner's adultery (Kyte v. Kyteand Cooke, I. L. R., xx Bomb. 362). A wife, who had obtained a decree nisi for the dissolution of her marriage, more than six months thereafter went through the form of marriage with another man in the honest belief that her marriage had been dissolved by the decree nisi, but that she could not marry until the expiration of six months. After the death of the man with whom she had gone through the form of second marriage, she resumed cohabitation with her husband, but left him again on account of his cruelty. It was held that the condonation by resumption of cohabitation was conditional, and that the subsequent cruelty put the petitioner in a position to ask to have the decree nisi made absolute, and that as the petitioner in going through the form of second marriage bond fide believed that she had a legal right to do so, the Court ought to make the decree absolute as prayed for (Moore v. Moore, (1892) P. 382 ; 62 L. J., P. & M. 10). A husband and wife signed a document to the effect that they had agreed to live separate, and that each was at liberty to marry again. The husband, who was of humble rank, believed this document to be legal and binding, and went through a form of marriage with another woman, from whom, however, he at once separated on hearing that the second marriage was not legal. He subsequently petitioned for dissolution of marriage, and it was held that, as he had acted in ignorance of the law and in the bond fide belief that the second marriage was legal, the case was a proper one for the exercise of the Court's discretion in his favour (Whitworth v. Whitwortli, (1893) P. 85; 62 L. J., P. & M. 71). (ii) Adultery of wife (petitioner] due to her husband's compulsion. / c \ Adultery Where, in a suit for dissolution of marriage, the petitioner due to satisfied the Court that she had been terrified by the threats and compulsion, ill-treatment of her husband into leading a life of immorality, contrary to her own will and desires, the Court considered that it was a fit case to exercise its discretion in her favour, notwith- standing her admitted prostitution during the marriage (Coleman v. Coleman, L. E., 1 P. 81 ; 35 L. J., P. & M. 37). In exercising its discretion as to granting a decree in favour Respondent's of a petitioner who has been guilty of adultery, the circumstances misconduct which should be considered by the Court include the case of a ^tit^ner^ R. H adultery. 98 THE INDIAN DIVOECE ACT. 14. husband causing or conducing to his wife's adultery by his own wilful neglect or misconduct. In such cases the Court may properly grant the wife a decree despite her own adultery (Symons v. Symons, (1897) P. 167; xiii T. L. E., p. 353). (d) Isolated (iii) Petitioner's isolated act of adultery Jong since condoned and i^ 6r ^ never repeated. In a few cases, the authority of which, in view condoned. of later decisions, is at least questionable, it was held that an isolated act of adultery on the part of the petitioner, which was committed long previously to the respondent's misconduct and in no way conduced thereto, and had been condoned by the respondent, would not necessarily disentitle the petitioner to a decree of dissolution if the petitioner could satisfy the Court that, but for the one lapse proved, he had been a good and faithful husband (Hutchinson v. Hutchinson and Barker, 14 L. T. 338; Conradi v. Conradi and Worral, L. E., 1 P. 514 ; 37 L. J., P. & M. 55). And the Chief Court of the Punjab held, following Conradi v. Conradi and Worral, that the circumstance that in a former suit for dissolution of marriage the Court decided to refuse the petitioner a decree, on the ground that he also had been guilty of adultery, was no bar to the exercise of its discretion in his favour in a subsequent suit by him, where it appeared that, assuming he had committed adultery since his marriage, such adultery had been condoned by the respondent and had no con- nection with the separation of the wife from her husband since the decision in the former suit, and in no way conduced to her subsequent life of open prostitution (Lisbey v. Lisbey, No. 6, Punjab ftecord, 1888). The case of Collins v. Collins (9 P. D.*231 ; 53 L. J., P. & M. 116) was a very exceptional one. In that case it appeared that after the husband had obtained a decree nisi by reason of his wife's adultery , which was subsequently rescinded on the ground of his own adultery and cruelty, the parties lived together again. The husband thereafter committed other acts of cruelty and was subsequently convicted of rape, whereupon the wife filed a petition for dissolution of marriage. The Court, notwithstanding her adultery, decided, under the circumstances of the case, to grant her a decree. But, despite the cases above cited, it is very doubtful whether the Court will, at the present day, exercise its discretion in favour of the petitioner simply on the ground that his act of adultery was long previous to that of the respondent, was con- DISSOLUTION OF MARRIAGE. 99 doned by her, and in no way conduced to her misconduct (see 14. cases cited at pp. 94, 95). For, in the words of the present ~ president of the English Divorce Court, " the Court's discretion in granting a decree to a petitioner guilty of adultery was only exercised in cases where it might be said that the petitioner might be absolved from moral guilt, as where a husband, believing that his wife was dead, went through a form of marriage with another woman " (Maggs v. Maggs and Greedy, xii T. L. E. 509). " Petitioner guilty of unreasonable delay in presenting or Unreasonable prosecuting such petition" : The provisions of the Indian Limitation Act (XV of 1877) do not apply to suits or proceedings under the Indian Divorce Act of 1869 (sect. 1, cl. (a) of the Indian Limitation Act, 1877). But while, on the one hand, there is no absolute limitation in the case of a petition for dissolution of marriage, yet the first thing which the Court looks to when a charge of adultery is preferred is whether there has been such delay as to lead to the conclusion that the petitioner had either connived at the adul- tery or was wholly indifferent to it ; but any presumption arising from apparent delay may always be rebutted by an explanation of the circumstances (Williams v. Williams, I. L. E., iii Calc. 688). " The first thing which the Court looks to when a charge of adultery is preferred is the date of the charge relatively to the date of the criminal fact and knowledge of it by the party, because if the interval be very long between the date and knowledge of the fact and the exhibition of them to the Court, it will be indisposed to relieve a party who appears to have slumbered in sufficient comfort over them, and it will be inclined to infer either an insincerity in the complaint, or an acquies- cence in the injury, whether real or supposed, or a condonation of it. It therefore demands a full and satisfactory explanation in order to take it out of the reach of such interpretation " (per Sir J. P. Wilde, Boulting v. Boulting, 33 L. J., P. & M. 33 ; cf. Nicholson v. Nicholson, L. E., 3 P. 53; 29 L. T. 108). The " unreasonable delay in presenting or prosecuting a peti- What is. tion for dissolution of marriage " is delay from which it would appear that the petitioner is insensible to the injury of which he complains (Pellew v. Pellew and Berkeley, 1 S. & T. 553 ; 29 L. J., P. & M. 44 ; cf. Dera Sayagam v. Naiyagam, 7 Mad. 284). ft 2 100 THE INDIAN DIVORCE ACT. 14. And where a suit is instituted by the wife on account of her husband's adultery and cruelty, a long delay may show that the suit is not instituted for the protection of the wife, but for some collateral purpose, and if the Court is satisfied that such is the case, the petition will be dismissed (Mattheivs v. Matthews, 1 S. & T. 499 ; 29 L. J., P. & M. 118 ; in app. 3 S. & T. 161). Generally speaking, if a petitioner, with full knowledge of the facts, refrains from taking proceedings for two years, his peti- tion will be dismissed unless the delay is satisfactorily explained (Nicholson v. Nicholson, L. B., 3 P. 53 ; 29 L. T. 108). Excusable delay : (a) "Want of means. Excusable delay. A petitioner is not guilty of unreasonable delay in presenting his petition, although a long period may have elapsed since the adultery was committed, if he has been prevented by poverty from taking steps earlier to obtain a divorce (Ratdiffe v. Ratcliffe and Anderson, 1 S. & T. 467 ; 29 L. J., P. & M. 171 ; Wilson v. Wilson, L. E., 2 P. 435 ; Faulkes v. Faulkes, 64 L. T. 834 ; Binney v. Binney, 69 L. T. 498). So, where a wife left her husband in 1844 on account of his cruelty and adultery, but had not the means of suing till shortly before the suit was instituted in 1863, and the husband had been leading a wandering life without employment, the Court held that the wife had not been guilty of unreasonable delay (Harrison v. Harrison, 3 S. & T. 362; 33 L. J., P. & M. 44). In 1878 a husband obtained a judicial separation from his wife, and 80Z. damages against the co-respondent, but took no steps to recover the latter. The wife continued to cohabit with the co-respondent, and in 1882 the husband petitioned for a divorce. The reason he gave for the delay and for not enforcing his claim for damages was that he had no money, being only in receipt of weekly wages, and that he hoped that his wife would return to him. The Court of Appeal held, reversing the decision of the lower Court, that the delay was not unreasonable under the circumstances (Mason v. Mason, 8 P. D. 21 ; 52 L. J., P. & M. 27 ; reversing 7 P. D. 233 ; 51 L. J., P. & M. 88). (b) Ignorance A domiciled Englishman intermarried with a Scotch woman, and in 1841 obtained a divorce in the Scotch Courts, which divorce he believed to be of universal application, being con- firmed in that belief by opinion of counsel. In 1854, however, he was informed that the divorce was of no validity in England, and he thereupon petitioned for leave to bring in a bill into the House of Lords declaring his marriage absolutely void since 1841. This petition was rejected, and in 1858 he sued for a of law. DISSOLUTION OF MARRIAGE. 101 dissolution of marriage on the ground of his wife's adultery in 14. 18-41 and at other times. The Court held that there had been ~~ no such lapse of time as to constitute unreasonable delay ( Tolh- mache v. Tollemache, 1 S. & T. 557 ; 30 L. J. ( P. & M. 113). A petitioner excused his delay in suing on the ground that he believed that after seven years he could legally contract a second marriage. The Court held that under the circumstances the delay was not unreasonable (Dera Say a gam v. Naiyagam, 1 Mad. 284). A husband committed incestuous adultery with his wife's ( c ) Desire to sister, but the wife delayed proceedings for eighteen years, a 01 , f ^ giving, as an explanation of the delay, her mother's anxiety to avoid a public exposure of the scandal and her mother's urgent entreaties (to which she had yielded) to forbear from taking any proceedings. Upon her mother's death she insti- tuted a suit for dissolution, and it was held that she had been guilty of unreasonable delay, but not of such a character as to disentitle her to a decree (Newman v. Newman, L. E., 2 P. 57 ; 39 L. J., P. & M. 36). Unreasonable delay. A husband presented his petition for Unreasonable divorce about fourteen years after he had discovered the fact of dejav< his wife's adultery. His excuse for the delay was that he had no means, but he admitted that he was a coal-hauler, and at the time of suit possessed stock-in-trade of the value of 6001. and nine horses, besides some cottages which he had purchased through a building society. The Court refused to accept his plea of want of means as a sufficient explanation of the delay (Short v. Short and Bolwall, L. E., 3 P. 193). A wife, who had lived separately from her husband for twenty years, sued for a dissolution of marriage on the ground of his adultery, which was of recent date, and cruelty, which had been committed before the separation. Her explanation of the delay was that at first she hoped her husband would repent, and latterly she wished to wait till her son, the only child of the marriage, was grown up. The Court held that the delay was so unreason- able as to disentitle her to a decree (Beauclerkv. Beauclerk, (1891) P. 189; 60 L. J., P. & M. 20). " Or of cruelty towards the other party to the marriage": "Cruelty." As regards " cruelty " generally, see ante, note to sect. 10. For the purposes of this section, it would seem that the 102 THE INDIAN DIVORCE ACT. 14. cruelty must be such as to have led or conduced to the respon- ~" dent's misconduct (Pearman v. Pearman and Burgess, 29 L. J., P. & M. 54 ; Edwards v. Edwards, (1894) P. 33). The fact that the petitioner's cruelty has been condoned by the respondent will not necessarily debar the Court from exer- cising its discretion against the petitioner (Gordon v. Gordon and Saran, 3 B. L. E., 0. 0. 136). But it may be different where the respondent has executed a deed for valuable consideration, voluntarily relinquishing all right to complain of such cruelty. Thus, where a wife obtained a judicial separation from her husband on the ground of his cruelty, and was given the custody of her child, and subse- quently the husband and wife executed a deed of agreement whereby the latter relinquished the custody of the child and her rights to alimony in consideration of a lump sum then paid to her by her husband, and shortly after the execution of the deed the husband discovered she was committing adultery and sued for a divorce, the Court held that the cruelty on his part was not such as would induce it to withhold a decree from the husband, especially as the deed of release had been executed by the wife with her eyes open (Badham v. Badham, 62 L. T. 663). "Where a husband was proved to have been guilty of adul- tery, but the wife (who was the petitioner) was also proved to have been guilty of cruelty and of wilful separation from the respondent before his adultery, and of wilful neglect and mis- conduct conducing to his adultery, the Court refused to grant her a decree of judicial separation (Boreham v. Boreham, L. E., 1 P. 77; 35 L. J., P. &M. 49). " Or of having deserted or wilfully separated himself or herself from the other party before the adultery com- plained of and without reasonable excuse " : Desertion. For "desertion" generally, see note to sect. 10, ante. In order to found a suit for judicial separation, or, coupled with adultery, a suit by a wife for dissolution of marriage, the desertion complained of must have been for two years or up- wards ; but for the purposes of this section, it need not have been for any definite period. It has been held that, for the purposes of this section, a de- sertion or wilful separation may be justified on grounds which would not justify a desertion sufficient to found a decree for judicial separation, and that, whereas in the latter case " a rea- DISSOLUTION OF MARRIAGE. 103 sonable excuse " must be a distinct matrimonial offence, in the 14. former case, conduct falling short of such matrimonial offence may afford a sufficient justification for separation (Haswdl v. Haswell and Sanderson, 1 S. & T. 502 ; 29 L. J., P. & M. 21). Inasmuch, however, as in each case the words "a reasonable excuse" are used (see sects. 10, 14, and 22), it is difficult to see the reason for drawing such a distinction. It is only in very exceptional cases indeed that the Court will grant a decree of dissolution in favour of a petitioner who has been guilty of desertion or wilful separation without reasonable excuse (Yeatman v. Yeatman, L. E., 2 P. 187; 39 L. J., P. & M. 77). Especially is this the case where the husband is the petitioner. For, "if chastity be the duty of the wife, protection is no less that of the husband. The wife has a right to the comfort and support of the husband's society, the security of his home and name, and the just protection of his presence, so far as his posi- tion and avocations will admit. Whoever falls short in this regard, if not the author of his own misfortune, is not wholly blameless in the issue, and though he may not have justified his wife, he has so far compromised himself as to forfeit his claim for a divorce " (Jeffreys v. Jeffreys and Smith, 3 S. & T. 495; 33 L. J., P. & M. 66). It has been seen (see ante, p. 61) that a separation by mutual agreement does not constitute desertion ; but if there was no reasonable excuse for such separation, it may be held to have been "wilful" within the meaning of this section, and to dis- entitle the petitioner to a decree of dissolution of marriage (Dagg V. Dagg and Speke, 7 P. D. 17 ; 51 L. J., P. & M. 19). " Or of such wilful neglect or misconduct of or towards Neglect or the other party as has conduced to the adultery " : misconduct. The neglect or misconduct here referred to means neglect or misconduct after the marriage (Allen v. Allen and D'Arcy, 28 L. J., P. & M. 81). Wilful neglect necessarily includes wilful separation without reasonable excuse when the adultery is the result of such sepa- ration. Mere carelessness does not constitute misconduct within the meaning of this section. Therefore, before a husband can be refused a decree on the ground of such misconduct, it must be found as a fact that there was an intimacy between the respon- dent and co-respondent of such a character as to be distinctly 104 THE INDIAN DIVORCE ACT. Must amount to breach of marital duty And must 14. dangerous, that he actually knew of so much of this intimacy as to perceive the danger, and that he either purposely or reck- lessly disregarded it and forbore to interfere (Dering v. Dering and Blakeley, L. E., 1 P. 531 ; 37 L. J., P. & M. 52). The misconduct must be such as amounts to a breach of mar it a l duty (Cunnington v. Cannington and Nolle, 1 S. & T. v 475; 28 L. J., P. & M. 101 ; Brown v. Brown and Holey, 21 L. T. 181). And in order to disentitle the petitioner to relief the miscon- duct must have directl y conduced to the adultery (St. Paul v. adultery. ^- Paul and Farquhar, L. E., 1 P. 739). So, where in a suit by the husband for a divorce on the ground of his wife's adultery, which was admitted, the jury found that the petitioner had been guilty of " wilful neglect and misconduct conducing to the adultery," and it appeared that the parties were domestic ser- vants and that the respondent had had an illegitimate child by the petitioner before marriage, and that during the marriage the petitioner was frequently away, for long intervals, from his wife on his duties but regularly made her an adequate allowance, the Court, notwithstanding the verdict of the jury, granted the petitioner a decree of dissolution. In this case, Gorell Barnes, J., said : " It is obvious that, if a husband is guilty of conduct con- ducing to his wife's adultery, the Court would not be readily disposed to pronounce a decree in his favour. But conduct con- ducing to adultery may vary greatly in degree. There may be such conduct as would lead necessarily and proximately to adultery ; and, on the other hand, there may be conduct which BO remotely conduces to adultery that, while it may be said there is some slight evidence that it did conduce to adultery, the conduct may yet be rather a causa sine qua non than a causa causa ns. In cases at the first extreme, the Court could not reasonably be asked to pronounce a decree in the petitioner's favour, unless perhaps there were some very exceptional cir- cumstances ; but in cases approaching the other extreme, there may not be sufficient in the petitioner's conduct to cause the Court to refuse to exercise its discretion in his favour " (Parry v. Parry, (1896) P. 37 ; 65 L. J., P. & M. 35). A man married a woman of loose character with whom he had previously cohabited, and shortly after the marriage separated from her against her will and sent her to live by herself in a place where she could be accessible to temptation and where she was as a matter of fact guilty of adultery. No reasonable excuse for the separation having been proved, it was held that DISSOLUTION OF MARRIAGE. 105 the husband had been guilty of conduct conducing to the 14. adultery on the part of the wife (Baylis v. Baylis, Treavan and Cooper, L. E., 1 P. 395 ; 36 L. J., P. & M. 89; cf. Hawkins v. Hawkins, 10 P. D. 177 ; 54 L. J., P. & M. 94). In the latter case Sir James Hannen said : " Every husband is bound to give his wife that protection which the society of a husband affords, and the fact that the respondent had been familiar with the petitioner before marriage made that duty more incumbent upon him, she being a person who might be more likely to yield to temptation." A husband allowed his wife to live separately from him in lodgings where he occasionally visited her, and made her a small weekly allowance. On calling at her lodgings he frequently found her out so late as eleven and twelve o'clock at night, although she had no occupation which necessitated her absence from the lodgings at such hours. She committed adultery while so living apart, but the Court refused to grant the husband the decree prayed for, on the ground that his conduct had conduced to her adultery (Groves v. Groves and Thompson, 28 L. J., P. & M. 108). Where the petitioner had permitted the co-respondent to visit frequently at his house, in his absence, and to make his wife an allowance of II. a week, and had sent his wife to borrow money from the co-respondent, and had allowed her to be escorted by the latter on a journey to London, the jury acquitted the peti- tioner of connivance at his wife's adultery with the co-respon- dent, but found that he had been guilty of wilful neglect and conduct conducing to her adultery (Brown v. Brown and Roley, 21 L. T. 181). Where, in answer to a husband's suit for dissolution of mar- riage on the ground of his wife's adultery, the wife pleaded, as misconduct on the part of the husband conducing to her adultery, if any, a flirtation which he had carried on for some time with an unmarried lady and certain acts of familiarity (e.g. , putting his arm round her waist whilst she sat on his knees) with the same lady, despite the remonstrances of the respondent, the Court held that, as it was not impossible, if the facts alleged by the respondent were proved, that the judge might come to the conclusion that the husband's neglect had conduced to the wife's adultery, the facts so alleged ought not to be struck out of the answer (Cox v. Cox, 70 L. T. 200). But the wilful neglect or misconduct here spoken of is not that neglect or misconduct which may have led to any particular 106 THE INDIAN DIVORCE ACT. 14. Act of adultery brought about by petitioner's agents. act of adultery after the wife's lapse from virtue, it must have directly conduced to her fall (St. Paul v. St. Paul and Farquliar, ubi supra}. Where a husband, shortly after marriage, was convicted of felony and sentenced to transportation, and during such time as he was undergoing penal servitude his wife committed adultery, it was held, in a suit subsequently instituted by him for dissolution of marriage, that, although from the circum- stances of the case there was no reason to doubt that but for the husband's absence caused by his own misconduct the wife would have remained faithful to him, yet the felony committed by him was not a violation of marital duty, and could not, therefore, be regarded as such misconduct as to disentitle him to the relief sought (Cunnington v. Cunnington and Nolle, 1 S. & T. 475; 28 L. J., P. & M. 101). In this case the misconduct of the husband, though apparently a causa sine qua nan, was not a causa causans such as would necessarily and proximately lead to the adultery (see Parry v. Parry, supra"). Where, however, a husband went with his wife to dancing places and left his wife and the co-respondent together there, his conduct was held to have conduced to the adultery committed by them (Barnes v. Barnes and Grimwade, 37 L. J., P. & M. 4). A husband was advised by his wife's doctor that further co- habitation with his wife, if it resulted in pregnancy, would pro- bably prove dangerous to her, as her mind had become tempo- rarily unhinged on the birth of her first child. He, therefore, refused ever after to resume cohabitation or even to see her, informing her that she was not to inquire into his mode of life and he would not interfere with hers, but he made her a regular allowance. It was held that the husband's conduct had not disentitled him to a decree on the ground of her adultery (Lander v. Lander, (1891) P. 161 ; 63 L. T. 237). Act of adultery brought about by petitioner's agent. If persons, acting on behalf of the petitioner, bring about the adultery committed by the respondent, the Court will refuse to grant the petitioner a decree of dissolution, even though the petitioner had no knowledge of what such persons were doing (Pickenv. Picken and Symonds, 34 L. J., P. & M. 22). If, therefore, a person who is employed by the petitioner to watch the respondent for the purpose of obtaining evidence of adultery, brings about an act of adultery by the respondent, the petitioner will not be granted a decree of dissolution on the DISSOLUTION OF MARRIAGE. 107 ground of such adultery, although such act on the part of the 14. agent may have been wholly unauthorized by the petitioner (Gower v. Gower and Pearson, L. E., 2 P. 428; 41 L. J., P. & M. 49; Belly. Bell, 58 L. J., P. & M. 54; Beanlandsv. Beanlunds, No. 45, Punjab Record, 1871). Where a husband whose wife was leading a life of prostitution paid, or caused to be paid, money to a person to commit an act of adultery with her in order to obtain evidence to enable him to institute a suit for dissolution of marriage, the Court refused to grant him a decree on the ground of such adultery (Sugg v. Sugg and Moore, 31 L. J., P. & M. 41). Discretionary bars to grant of relief to petitioner. As regards the Discretionary discretionary bars under this section to a petitioner's right to a bars to relief, decree, it must be remembered that, as soon as the petitioner's case is proved, and the Court does not find that the petitioner has been accessory to, or conniving at, the adultery complained of, or that there has been any condonation or collusion, the Court is bound, if the petitioner so wishes, to pronounce a decree of dissolution of marriage unless it is established affirmatively that the petitioner has been guilty of such conduct as, by virtue of the proviso in sect. 14, gives the Court a discretionary power to refuse to dissolve the marriage (Haswell v. Haswell and Sander- son, 1 S. & T. 502 ; 29 L. J., P. & M. 21). " No adultery shall be deemed to have been condoned " : As to what constitutes "condonation," see note to sect. 12, ante, p. 78. 15, In any suit instituted for dissolution of marriage, Relief in case if the respondent opposes the relief sought on the ground, in case of such a suit instituted by a husband, of his adultery, cruelty, or desertion without reasonable excuse, or, in case of such a suit instituted by a wife, on the ground of her adultery and cruelty, the Court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be 108 THE INDIAN DIVORCE ACT. 15. competent to give evidence of or relating to such cruelty or desertion. The Matrimonial Causes Act, 1866 (29 & 30 Viet. c. 32), sect. 2, provides that ; ' In any suit instituted for dissolution of marriage, if the respondent shall oppose the relief sought on the ground in case of such a suit instituted by a husband of his adultery, cruelty, or desertion, or in case of such a suit instituted by a wife on the ground of her adultery or cruelty, the Court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled in case he or she had filed a petition seeking such relief." Right of alleged adul- terer to intervene. " Relief in case of opposition on certain grounds " : The object of this section is to do away with the necessity of cross-suits, and to enable the Court to deal fully and finally with the matters in issue between the parties. The practice in England, previously to the enactment of the Matrimonial Causes Act, 1866, was to stay one suit until the determination of the other. The present practice is, in the case of cross- petitions, to save a double hearing by consolidating the two suits, the conduct of the case being generally given to the first petitioner (see Browne and Powles' Divorce, 5th ed., p. 322). Where the respondent in a suit for dissolution opposes the relief sought and applies for relief on the ground of the petitioner's misconduct, the petitioner will not be allowed to terminate the suit by having the petition dismissed, if the respondent opposes such proceedings (Schira v. Schira, L. B., 1 P. 466). In such cases the Court will allow the person charged by the respondent with having committed adultery with the petitioner, to intervene, and this whether or not the respondent claims dissolution (Curling v. Curling, 14 P. D. 13 ; 58 L. J., P. & M. 20; Wheeler v. Wheeler, 14 P. D. 154; 58 L. J., P. & M. 65). Discretionary lars to relief. The discretionary bars to relief under sect. 14 apply equally to the case of a respondent praying for relief under this section. Therefore, where the respondent was at the time of suit living in adultery with the co-respondent, and in opposition to her husband's suit for a divorce proved that he had been guilty of various acts of cruelty towards her, and prayed for a judicial separation on that ground, the Court held DISSOLUTION OF MARRIAGE. 109 that her adultery disentitled her to relief (Gordon v. Gordon and 15. Saran, 3 B. L. E., 0. C. 136). "In case of a suit instituted by the wife, on the ground "Adultery of her adultery and cruelty": * Despite the use of the word "and," it cannot be intended that the husband- respondent should have to prove both adultery and cruelty on the part of the wife. The corresponding section of the English Act reads " adultery or cruelty," and, no doubt, the word " and " in sect. 15 of the Indian Act must be construed disjunctively as meaning "or." If the intention was that the wife's cruelty alone was to be no bar to her suit, the words "and cruelty " might have been omitted altogether. Inasmuch as under sect. 22 a husband is entitled to a judicial separation on the ground of his wife's "desertion without reasonable excuse," it is at least strange that no provision is made in this section enabling the husband, in a suit for dissolu- tion instituted by the wife, to plead her desertion by way of answer, and to apply for a judicial separation on that ground. In such a case the husband must apparently bring a separate suit. From, the omission of "desertion" in this part of the section, it would appear that desertion on the part of the wife is no positive bar to her suit for dissolution of marriage, as it has been held not to be to her suit for judicial separation (Duplany v. Duplany, (1892) P. 53; 66 L. T. 267). It is, however, a ground upon which the Court may refuse to grant her a decree under sect. 14 of the Act. "The same relief to which he or she would have been entitled " : A decree for restitution of conjugal rights is not the relief in respect of desertion contemplated by this section. Therefore, a wife who filed an answer to a petition for dissolution of marriage wherein she denied the adultery charged, and alleged desertion and wilful separation on the part of the husband, was not allowed to add a prayer for restitution of conjugal rights to * The husband can oppose his wife's suit for dissolution on the ground of her adultery alone, for such adultery, if proved, would certainly disentitle her to a decree, except under very exceptional circumstances . 110 THE INDIAN DIVORCE ACT. 15. her answer (Drysdale \. Drysdale, L. E., 1 P. 365 ; 36 L. J., ~ P. & M. 39). It is to be noticed that sect. 15 only applies to suits for disso- lution of marriage. It is not permissible, therefore, to a respondent in a suit for nullity of marriage to plead the adultery, cruelty, or desertion on the part of the petitioner and to pray for relief in respect thereof ( Williams v. Williams, 6 Jur. N. S. 151; S. 0., 29 L. J., P. & M. 62; Taverner f. c. DitcJiford v. Ditchford, 33 L. J., P. & M. 105). But in a suit for nullity of marriage, the respondent can, in the answer to such suit, pray for restitution of conjugal rights (Lopez v. Lopez, I. L. E., xii Calc. 706). Decrees for dissolution to be nisi. Collusion. 16. Every decree for a dissolution of marriage made by a High Court not being a confirmation of a decree of a District Court, shall, in the first instance, be a decree nixf, not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order from time to time, directs. During that period any person shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not being brought before the Court. On cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or other- wise as justice may demand. The High Court may order the costs of counsel and witnesses and otherwise arising from such cause being shown to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property. DISSOLUTION OF MARRIAGE. Ill Whenever a decree nisi has been made, and the peti- 1- tioner fails, within a reasonable time, to move to have such decree made absolute, the High Court may dismiss the suit. The Matrimonial Causes Act, 1860 (23 & 24 Viet. c. 144), sect. 7, provides that : " Every decree for a divorce shall in the first instance be a decree nisi, not to be made absolute till after the expira- tion of such time, not less than three months* from the pronouncing thereof, as the Court shall by general or special order from time to time direct ; and during that period any person shall be at liberty, in such manner as the Court shall by general or special order in that behalf from time to time direct, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not brought before the Court ; and, on cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may require ; and at any time during the progress of the cause or before the decree is made absolute any person may give information to her Majesty's proctor of any matter material to the due decision of the case, who may thereupon take such steps as the Attorney-General may deem necessary or expedient ; and if from any such information or otherwise the said proctor shall suspect that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, he may, under the direction of the Attorney- General, and by leave of the Court, intervene in the suit, alleging such case of collusion, and retain counsel and subpoena witnesses to prove it ; and it shall be lawful for the Court to order the costs of such counsel and witnesses, and otherwise, arising from such intervention, to be paid by the parties or such of them as it shall see fit, including a wife if she have separate property ; and in case the said proctor shall not thereby be fully satisfied his reasonable costs, he shall be entitled to charge and be reimbursed the difference as part of the expense of his office." * Subsequently extended to six months, unless the Court fixes a shorter period (see sect. 3 of the Matrimonial Causes Act, 1866 (29 & 30 Viet. c. 32) ). Sect. 7 of the Matrimonial Causes Act, 1860, and sect. 3 of the Matrimonial Causes Act, 1866, have been extended to decrees and suits for nullity of marriage (Matrimonial Causes Act, 1873 (36 Viet. c. 31), sect. 1). 112 THE INDIAN DIVORCE ACT. 16. By sect. 2 of the Matrimonial Causes Act, 1878 (41 Yict. c. 19), ~~ it is further provided that : " Where the Queen's Proctor or any other person shall intervene or show cause against a decree nisi in any suit or proceeding for nullity of marriage, the Court may make such order as to the costs of the Queen's Proctor, or of any other person who shall intervene or show cause as aforesaid, or of all and every party or parties thereto occasioned by such intervention or showing cause as aforesaid as may seem just; and the Queen's Proctor, any other person as aforesaid, and such party or parties shall be entitled to recover such costs in like manner as in other cases : Pro- vided that the Treasury may if it shall think fit order any costs which the Queen's Proctor shall, by any order of the Court made under this section, pay to the said party or parties to be deemed to be part of the expenses of his office." Decree nisi does not terminate Us. Nor is it a decree within meaning of C. P. C. s. 1. " Shall be a decree nisi " : After a decree nisi for dissolution of the marriage, the suit between the parties is not at an end, and the Us remains pending (Ellis v. Ellis, 8 P. D. 188; 52 L. J., P. & M. 99, overruling Lathomv. Lathom, 2 S. & T. 299; 30 L. J., P. & M. 103). Consequently the status of a married woman is not affected by the pronouncing of a decree nisi for dissolution of her marriage. She continues to be subject to all the disabilities of coverture until the decree is made absolute (Norman v. Villars, 2 Ex. D. 359; 46 L. J., Ex. 579). ' ' The decree nisi does not dissolve the marriage. Sir "W. Philli- more and Mr. Deane . . . endeavoured to show that after the decree nisi the status of the parties was a peculiar one that they were in a sort of suspended condition, neither husband and wife nor divorced, and it is said there was authority for saying that if under such circumstances the man cohabited with the woman he would be committing adultery. But the authority has not been produced, and the idea appears to me full of absurdities " (Bowen, L.J., Stanhope v. Stanhope, 11 P. D. 103; 55 L. J., P. & M. 36). Inasmuch, therefore, as a decree nisi does not "decide" the suit, it is not, apparently, a " decree " within the meaning of sect. 1 of the Civil Procedure Code (King v. King, I. L. E., vi Bomb. 416). Once a decree nisi has been pronounced neither the husband nor the wife can take any active step in the suit except to get the decree made absolute, but they may so act as to prevent the DISSOLUTION OF MAREIAGE. 113 decree being made absolute (Stanhope v. Stanhope, ubi supra). 16 A decree nisi is, however, appealable under sect. 55 of the jj u t i a Indian Divorce Act. appealable. If either the petitioner or the respondent dies at any time Death of after the decree nisi has been pronounced, but before it has petitioner or been made absolute, the suit abates ipso facto (Grant v. Grant b e fo re decree and Bowles, ^ S. & T. 522; 31 L. J., P. & M. 174; Srocas v. is made Brocas, 2 S. & T. 383 ; 30 L. J., P. & M. 172). absolute. Nor can the legal representative of the petitioner apply to have the decree made absolute. "A man can no more be divorced after his death than he can be married or condemned to death. Marriage is a union for two lives ; it can be dissolved either by death or by process of law. After it has been dissolved in one of those ways it cannot be dissolved again a knot which has already been untied cannot be untied again " (Bowen, L.J., Stanhope v. Stanhope, ubi supra}. The Matrimonial Causes Act, 1873, provides that a decree for nullity of marriage shall also, in the first instance, be a decree nisi, and that any person may in the case of such a decree intervene in the same manner as in the case of a decree nisi for dissolution of marriage. This, however, is not the case in India : under the Indian Divorce Act, a decree of nullity when made by a High Court is a decree absolute ; a decree of nullity when made by a District Court is, however, subject to the confirma- tion of the High Court (see sects. 19 and 20). But in neither case is there any provision made for intervention. " Not to be made absolute " : Will not be made absolute A decree nisi will not be made absolute at the instance of the if arrears of husband, when there are arrears of alimony pendente lite, until alimony such arrears have been paid (Lathom v. Lathom, 2 S. & T. 299 ; * 30 L. J., P. & M. 233; De Bretton v. De Bretton, I. L. E., iv AH. 295). The Court cannot, however, after the time limited by statute, suspend a decree absolute on the ground that the petitioner has not paid his proctor's taxed costs (Patterson v. Patterson and Graham, L. E., 2 P. 192 ; 40 L. J., P. & M. 4). ' ' Not less than six months " : Eight of petitioner to This means calendar months. have decree The petitioner has no absolute right to have the decree made made abso- absolute immediately on the expiration of the six months, for the u e ' R. I 114 THE INDIAN DIVORCE ACT. 16. High Court lias power to fix such time, not less than six months, ~ as it considers fit (Watton v. Watton, L. E., 1 P. 227 ; 35 L. J., P. & M. 95 ; Palmer y. Palmer, 4 S. & T. 143 ; 34 L. J., P. & M. 110). The English Divorce Court may, if it thinks fit, make a decree absolute within a less period than six months, but this power is exercised only under very special circumstances (Rogers v. Rogers, 6 E. 589; Fitzgerald v. Fitzgerald, L. E., 3 P. 136; 43 L. J., P, & M. 13). Who may apply to make decree absolute. Application to be sup- ported by affidavits. Application to make Decree absolute. (a) It is only the innocent party who can apply to the Court to make the decree nisi absolute. Where, therefore, in a suit by the husband for dissolution of marriage on the ground of his wife's adultery, a decree nisi had been pronounced, but the husband failed within a reasonable time to apply to the Court to have such decree made absolute, the Court refused to enter- tain an application to that effect presented by the wife (Ousey v. Ousey and Atkinson, 1 P. D. 56; 45 L. J., P. & M. 56; cf. Lewis V. Leivis, 2 S. & T. 394 ; 30 L. J., P. & M. 199). If, however, the petitioner fails to make such application within a reasonable time, the respondent may call upon him or her to do so or show cause why the decree nisi should not be revoked and the petition be dismissed for want of prosecution ; in such a case the respon- dent is entitled to have the petition dismissed for want of prose- cution, and is also entitled to put an end to any obligation imposed upon him in the course of the suit, e.g., an order for alimony (Ousey v. Ousey and Atkinson, supra; Half en v. Bod- dington, 6 P. D. 13; and Lewis v. Lewis, (1892) P. 212). In England, where a decree of nullity is in the first instance a decree nisi, a decree nisi of nullity by reason of the respondent's impotence will not be made absolute upon the application of such respondent (Ilalfen v. Boddington, 6 P. D. 13). (b) The application by the petitioner to make absolute a decree nisi must be supported by affidavits of search for appearance by any person, and of non-appearance ; and if an appearance has been entered, that no affidavits in opposition to the decree have been filed (Baddy v. Boddy and Grover, 30 L. J., P. & M. 95). See also Nos. 80, 194, and 207 of the Eules and Eegulations of the English Divorce Court. The affidavits must further show that the search was recent DISSOLUTION OF MAKRIAGE. 115 (Stone v. Stone and Brownrigg, 2 S. & T. 113; 32 L. J., P. & 16. M. 7). A copy of the decree nisi must also be filed with the applica- Copy of tion (Fowler v. Fowler, 31 L. J., P. & M. 31). decree m to be filed. (c) As a rule notice of the motion should be served on the Notice to respondent and co-respondent (Boddy v. Boddy and Grover, 30 respondent T T T> a -\r n-\ and co- iL. J., P. & M. 9o). respondent. It has, however, been held that inasmuch as a respondent or co-respondent cannot come in to show cause why a decree nisi should not be made absolute, it is immaterial, in an application to make the decree absolute, that the respondent has had no notice of the application (Willis v. Willis, 4 B. L. E., 0. C. 52; Hicks v. HicJfs, I. L. E., viii Calc. 756). And where a copy of the decree nisi has been served upon the respondent, it is not necessary to give him notice of the applica- tion to make it absolute (Gomez v. Gomez, I. L. E., xviii Calc. 443). And even where the copy of the decree nisi has not been served upon the respondent or co-respondent owing to the fact that they have been keeping oxit of the way in order to elude service, the Court will make the decree absolute although neither the respondent nor the co-respondent has been served with notice of the application (Warden v. Warden, 9 B. L. E., Ap. 39). So, where, on an application to make a decree nisi absolute, it appeared that the decree had been passed ex parte, after the original summons had been personally served upon the respon- dent, and that the petitioner had been unable to serve the respondent with a copy of the decree owing to the latter having left Calcutta immediately after the decree was passed and having left no trace of his whereabouts, the Court made the decree absolute, although no notice of the application or copy of the decree nisi had been served on the respondent (Hunter v. Hunter, I. L. E., xviii Calc. 539). (d) Reasonable time for application. As to what is a reasonable When time within which a petitioner should apply to make a decree abso- application , ,, j, T ,. , should be lute must depend upon the circumstances of each particular case. ma( j e> Where a wife, who had obtained a decree nisi, afterwards petitioned for permanent maintenance, and that petition was still pending, the Court held that the pendency of the proceedings for maintenance was a sufficient excuse for the delay on her part in applying to have the decree made absolute (Southern y. Southern, 62 L. T. 688). 116 THE INDIAN DIVORCE ACT. 16. Eight of intervention. Duty of judge. During such period. Who can intervene. " During that period any person shall be at liberty to show cause " : As regards intervention, there is a noticeable difference be- tween suits for dissolution of marriage instituted in a High Court and those instituted in a District Court. In the former, a person can intervene only after a decree nisi has been made ; in the latter, a person may intervene at any time during the pro- gress of the suit in the District Court (sect. 17), but once the District Court has made its decree, no further intervention is allowed even for the purpose of showing cause against such decree being confirmed by the High Court. " In India, where there is no public officer corresponding to the Queen's Proctor, a judge exercising jurisdiction under Act IV of 1869 ought to make a large use of his power to look into any matters which may come under his notice, affecting the proper exercise of the discretionary power of the Court to grant^ or withhold a divorce under specified circumstances, even though such matters are not brought to his notice by a party to the proceedings or an intervenor " (Lisbey v. Lisbey, No. 6, Punjab Record, 1888). The Courts in India will, therefore, take notice of any matters affecting the proper exercise of their discretionary power under this section, even though such matters have come to the know- ledge of the Court in an informal and indirect manner (King v. King, I. L. E., vi Bomb. 416; Stephen v. Stephen, I. L. E., xvii Calc. 570). In order to satisfy itself on this point, the Court will not hesitate to avail itself of the powers given to it by sect. 165 of the Indian Evidence Act, and sect. 171 of the Code of Civil Procedure, 1882. " During such period." At any time before a decree nisi is made absolute it ia competent for any person to intervene, whether the minimum time required to elapse before a decree nisi can be made abso- lute has or has not elapsed (Bowen v. Bowen, 3 S. & T. 530 ; Palmer v. Palmer, 34 L. J., P. & M. 110 ; Clements v. Clements, 3 S. & T. 394 ; 33 L. J., P. & M. 74 ; Poole y. Poole, Times Law Eeps., vol. xii. p. 509). Who may intervene. Any person may intervene for the purpose of showing cause" DISSOLUTION OF MARRIAGE. 117 why a decree nisi should not be made absolute, except the fol- 16. lowing persons : (i) the respondent (Stoate v. Stoate, 30 L. J., P. & M. 173 ; 2 S. & T. 384; Willis v. Willis, 4 B. L. E., 0. C. 52; King v. King, I. L. E., vi Bomb. 416; Stephen v. Stephen, I. L. E., xvii Calc. 570) : (ii) the co-respondent (Clements v. Clements, uli supra; Stoate v. Stoate, ubi supra] : (iii) any third person acting at the instance, or on behalf, of the respondent or the co-respondent (Clements v. Clements; King v. King, ubi supra}. But the mere fact that the intervenor happens to be a near relative of the respondent or co-respondent is not per se a ground for refusing to allow him to intervene (Howarth y. Howarth, 9 P. D. 218). A third person, charged by an intervenor with having com- Person mitted adultery with the petitioner will not be allowed to p^ ar 8' e< i ^7 ... . . ,.~ . ~ . ,., T^ intervenor appear on such intervention (Grieve v. Grieve, (1893) P. 288 ; ^jth adultery 63 L. J., P. & M. 29; Carew v. Carew, (1894) P. 31 ; 63 L. J., with peti- P. & M. 74). tioner - But though it is not open to the respondent or co-respondent But respon- to intervene for the purpose of showing cause against the decree n ^ OT , co ~ nisi being made absolute, either of them is at liberty to apply can apply for for a review of the decree nisi, on the grounds specified in review of sect. 623 of the Civil Procedure Code. And in any case, if any i d P afln *- person who is not entitled to intervene has come forward for that purpose and filed affidavits in support of his intervention, the Court will give notice to the petitioner that the decree nisi will not be made absolute until the matters set out in the affi- davits, as regards collusion, &c., have been satisfactorily cleared up (King v. King ; Stephen v. Stephen, ubi supra}. Nor will the Court order such affidavits to be taken off the file. Grounds of Intervention. Grounds of intervention. It is sufficient for an intervenor to allege in his plea that the decree was pronounced contrary to the justice of the case by reason of material facts not being brought to the knowledge of the Court (Crawford v. Crawford, 1 1 P. D. 150). The petitioner is, .however, entitled to particulars of such facts, and the intervenor will be ordered to furnish them (Glad- stone v. Gladstone, L. E., 3 P. 260; 44 L. J., P. & M. 46; Barnes v. Barnes and Grimwade, 37 L. J., P. & M. 4). And if the intervenor pleads that the decree was obtained by 118 THE INDIAN DIVORCE ACT. 16. collusion between the parties, he will be ordered to specify the ~ nature of the collusion charged, but not to state the facts which he intends to prove (Jessop y. Jessop, 2 S. & T. 301 ; 30 L. J., P. & M. 193). An intervenor is not barred from setting up an issue of fact which has already been pleaded by, but found against, the respondent (Harding v. Harding and Lance, 34 L. J., P. & M. 9). It has, however, been held that an intervenor cannot rely on, as material facts, charges which had been pleaded in answer to the petition, but abandoned at the hearing (Former v. Forster and Berridge, 32 L. J., P. & M. 206). And where specific charges have been investigated and decided in favour of the petitioner, an intervenor is entitled to show that the finding ought to have been the other way in conse- quence of material facts not having been brought to the know- ledge of the Court (Crawford v. Crawford, 55 L. J., P. & M. 42 ; 55 L. T. 304). But unless the intervenor can show that the issue, which was previously decided in favour of the petitioner, was improperly decided in consequence of the suppression of material facts or by reason of collusion between the parties, he cannot set up such issue again, for ' ' he has no right to obtain in an indirect manner a new trial of an issue which has already been tried and determined" (Gladstone v. Gladstone, L. E., 3 P. 260). An intervenor is not, therefore, entitled to show cause against the decree being made absolute simply on the ground that he suspects that the verdict on the issues previously tried was an improper one, or was contrary to the weight of evidence. It is not competent to a person who has intervened for the purpose of showing cause against the decree nisi being made absolute, to object that the Court had no jurisdiction over the parties to the suit, nor to support his opposition by matters which would only be ground for a motion by the parties for a new trial (Forster v. Forster and Berridge, 3 S. & T. 151 ; 32 L. J., P. & M. 206). " Material facts not brought before the Court." " Material facts not being brought before the Court " : A respondent, by pleading, in answer to a petition for dis- solution of marriage, material facts, of which no evidence is given at the hearing, does not bring them before the Court within the meaning of this section (Masters v. Masters, 34 L. J., DISSOLUTION OF MARRIAGE. P. & M. 7). And such facts may, after a decree nisi has been 16. pronounced, be set up by an intervenor as a ground for not making the decree absolute. The words " not being brought before the Court" mean "not Adultery, &c. brought before the Court at any time up to the date of inter- subsequent to vention." It was, indeed, held in an early case that condonation subsequent to the decree nisi was not a ground upon which the Court could reverse such decree if properly obtained, the reason given being that the words "not brought before the Court '' related to the period before the decree nisi was pronounced (Lewis v. Leivis, 30 L. J., P. & M. 199). This decision, how- ever, has not been followed, and in a more recent case Lord Penzance held that the adultery of the petitioner subsequent to the decree nisi was a ground for reversing such decree. "When the Act empowers cause to be shown why the decree should not be made absolute by reason of material facts not being brought before the Court, I consider that the Court is bound to take notice of any material facts not previously brought before the Court, and it is not confined to the reception of facts occurring before the decree nisi. ... I see no reason so to narrow the meaning of the words ' not brought before the Court.' Adultery since the decree nisi is not the less a fact not brought before the Court because from the date of its occurrence it was impossible that it should have been so brought before the Court. If, indeed, the words necessarily implied any shortcoming or de- fault on the part of the petitioner, they would be confined in their application as contended. But there are no expressions in the statute from which such an implication can properly be drawn, and the Court is therefore bound to give them their natural and full interpretation " (Hulse v. Hulse and Tavernor, L. E., 2 P. 357 ; 41 L. J., P. &M. 19; cf. Mogersv. Rogers, (1894) P. 161; 63 L. J., P. &M. 97). This was also the conclusion arrived at by the Court of Appeal in Howarth v. Howarth (9 P. D. 218), in which case Lord Justice Cotton remarked : "I am not satisfied that subsequent adultery does not come within the words ' facts not brought before the Court.' Though it was a fact that could not be brought before the Court at the trial, it comes within the description of ' facts not brought before the Court.' I see no reason why it may not be held that power is given to anyone to intervene when, although there is no ground for saying that the decree nisi was wrong, it can be shown that the party applying for the divorce has so misconducted himself or herself before the decree was 120 THE INDIAN DIVORCE ACT. 16. made absolute as, on the ground of public policy, not to be en- ~ titled to have it made absolute." The words "not brought before the fact" mean, therefore, not brought before the Court by accident or force of circum- j. stances, as well as by intention. suppressed -^ ^ s doubtful whether the suppression of material facts will but petitioner disentitle the petitioner to relief if, upon the whole case, he is otherwise entitled to a decree. On the one hand, the Court decree. granted a decree to a petitioner who charged his wife with having committed adultery with two persons but suppressed the fact that he had condoned one of the said acts of adultery (Alexandre v. Alexandre, L. E., 2 P. 164 ; 39 L. J., P. & M. 84; see, too, Rogers v. Rogers, (1894) P. 161 ; 63 L. J., P. & M. 97). On the other hand, the Court of Appeal, while not expressly deciding the point, has expressed the opinion that in such a case the Court should refuse to grant relief to the petitioner (Butler v. Butler, 15 P. D. 66 ; 59 L. J., P. & M. 25). In this case Lord Justice Lopes said: "In my opinion an agreement between the parties to a divorce suit to withhold from the Court pertinent and material facts which might have been adduced on the trial in evidence in support of a counter-charge against the respon- dent and co-respondent amounts to collusion, even though the suppressed fact might not have been sufficient to have established the counter-charge." As has been already stated, adultery committed by the peti- tioner subsequently to the decree nisi is a fact which may be set up by an intervenor as a ground for not making the decree absolute, and, if such adultery be proved, the Court will rescind the decree nisi and dismiss the petition. If, however, the peti- tioner has acted in ignorance of law, and has gone through a form of marriage after the decree nisi but before it has been made absolute, in the belief that he or she was legally entitled to do so, the Court will not, merely on the ground of such adultery, refuse to make the decree absolute (Nolle v. Nolle and Goodman, L. E., 1 P. 691 ; 38 L. J., P. & M. 52 ; Wickham v. Wickham, 6 P. D. 11 ; 49 L. J., P. & M. 70; Moore v. Moore, (1892) P. 382 ; 62 L. J., P. & M. 10 ; Kyte v. Kyte and Cooke, I. L. E., xx Bomb. 362). Reconciliation If, after a decree nisi, the parties become reconciled and of parties resume cohabitation, the Court, on the motion of an intervenor, and upon being satisfied of the facts, will rescind the decree nisi and dismiss the petition (Flower v. Flower, (1893) P. 290 ; 63 L. J., P. & M. 28). So, too, if in such a case the petitioner DISSOLUTION OF MARRIAGE. applies to the Court to rescind the decree nisi, the Court will 16. accede to the application, provided due notice thereof has been given to the respondent (Troward v. Troward, 32 W. E. (Eng.) 864). But where, after a decree nisi had been pronounced at the suit of the wife, the parties resumed cohabitation, and the wife informed her attorney that she did not wish any further steps to be taken in the suit, the Court refused to grant an application by the husband to dismiss the petition, but stated that, if both parties consented, it would order all further proceedings in the suit to be stayed (Lewis v. Lewis, 2 S. & T. 394 ; 30 L. J., P. & M. 199). In India the parties cannot prevent a decree nisi passed ly a Decree nisi District Court from being made absolute, nor can the High passed by Court set aside such a decree solely on the ground that the Court parties wish that it should be rescinded. But the High Court will, if both parties consent, stay all further proceedings in the suit (Culley v. Culley, I. L. E., x All. 559). Evidence of Adultery pleaded ly Intervenor. Evidence of identity. Upon the trial of an issue of adultery raised by an intervenor who shows cause against a decree being made absolute, the Court does not require such strict proof of the identity of the person charged with adultery as upon the trial of such an issue in a suit between husband and wife (Hulse v. Hulse and Tavernor, L. E., 2 P. 357 ; 41 L. J., P. & M. 19). The reason for this is, that in such cases collusion between the parties cannot be suspected, nor can it be doubted that the petitioner will do all he can to contest the intervenor's allegations and refute them if possible. Withdrawal of Petition after Intervention. Withdrawal of petition Once a person has duly intervened to show cause why a decree a * ter . i ntei> should not be made absolute, the petitioner will not be allowed to withdraw the petition (Gray v. Gray, 2 S. & T. 266; 4 L. T. 478). Nor can an intervenor be stopped from proving his case or substitu- by the substitution (after the intervenor has come forward) of a tion of prayer prayer for judicial separation in place of that for dissolution of separation, marriage (Drummond v. Drummond, 2 S. & T. 269; 30 L. J., P. & M. 177). THE INDIAN DIVORCE ACT. 16. Admissions by, and non- appearance of, petitioner. Intervention : Admissions by, or Non-appearance of, Petitioner. If the intervenor alleges matters which would be ground for reversing the decree nisi, and the petitioner in his replication admits the truth of the allegations, the Court will rescind the decree without further proof of the facts admitted (Boulton v. Boulton, 31 L. J., P. & M. 115). And the Court will reverse the decree nisi, without further proof of the intervenor's allegations, if upon the day fixed for the hearing of the issue the petitioner fails to appear, although ordered to do so (Pollack v. Pollack and Deane, 34 L. J., P. & M. 49). Intervention : Costs. See Appendix (F.), " Costs." Effect of decree absolute. Decree absolute for Dissolution of Marriage, effect of. "A woman divorced is no longer a wife; she has not the rights, nor has she the duties, of a married woman. She is at liberty to marry again. The equitable doctrines of separate use and restraint against anticipation have no application to her until she does marry again. Whatever property she may have or acquire is her own ; her former husband has no interest in it. He, on the other hand, is not bound to support her ; she has no implied authority to pledge his credit, even for necessaries. She is free from him and he from her" (per Lindley, L. J., Watkins V. Watkins, (1896) P. 222). It follows, therefore, that, after a decree of divorce has been made absolute, the whole of the wife's property, including such choses in action as have not been previously reduced into posses- sion, belongs to her absolutely (Wells v. Mallan, 31 L. J., Ch. 344; 31 Beav. 48; Wilkinson v. Gibson, L. B., 4 Eq. 162; 36 L. J., Ch. 646). And when the decree nisi is made absolute, it takes effect for the above purpose from the date of the decree nisi (Prole v. Soady, L. E., 3 Ch. 220; 37 L. J., Ch. 246). Eight of woman to retain former name. Right of divorced Wife to retain her former Husband's Name. Marriage confers a name upon a woman. The name so con- ferred becomes an actual name and continues to be so even after DISSOLUTION OF MARRIAGE. 123 a decree of divorce until she has acquired by repute some other 16. name, which, so to speak, obliterates it (Fendatt, otherwise Qoldsmid y. GoUsmid, 2 P. D. 263; 46 L. J., P. & M. 70). Decree absolute is a Decree in rem. Decree absolute is " A final judgment, order, or decree of a competent Court, in decree in rem. the exercise of probate, matrimonial .... jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person, but absolutely, is relevant when the existence of any such legal character or the title of any such person to any such thing is relevant. " Such judgment, order, or decree is conclusive proof "that any legal character which it confers accrued at the time when such judgment, order, or decree came into operation ; "that any legal character, to which it declares any such person to be entitled, accrued to that person at tho time when such judgment, order, or decree declares it to have accrued to that person ; ' ' that any legal character which it takes away from any such person ceased at the time when such judgment, order, or decree declared that it had ceased or should cease ; ' ' and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order, or decree declares that it had been or should be his property" (sect. 41, Indian Evidence Act, 1872). " The record of a decree in a suit for divorce, or of any other decree, is evidence that such a decree was pronounced, and the effect of a decree in a suit for a divorce d winculo matrimonii is to cause the relationship of husband and wife to cease. It is conclusive upon all persons that the parties have been divorced, and that the parties are no longer husband and wife ; but it is As regards not conclusive, nor even prima facie, evidence against strangers strangers that the cause for which the decree was pronounced existed. For conclusive^ instance, if a divorce between A. and B. were granted, upon the that marriage ground of the adultery of B. with 0., it would be conclusive as ' 8 dissolved, to the divorce, but it would not be even prima facie evidence against 0. that he was guilty of adultery with B., unless he 124 THE INDIAN DIVOECE ACT. 16. were a party to the suit" (per Sir Barnes Peacock, Kanhya Lai ~ v. liadha Charan, 7 W. E. (Ind.) 339). So where in a suit by a husband for divorce on the ground of his wife's adultery with E., E. did not appear, but the decree stated that the wife had been guilty of adultery with E. , and that E. had been condemned in costs, but did not contain a finding that E. had been guilty of adultery with the respondent, it was held, in a subsequent suit by E.'s wife for divorce, that the decree in the former suit was not per se sufficient evidence that E. had committed adultery (Muck v. Buck, (1896) P. 152j 65 L. J., P. & M. 87). Confirmation 17. Every decree for a dissolution of marriage made of decree for dissolution by by a district judge shall be subject to confirmation by district judge. the High Court. Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the judges of the High Court is three or upwards) by a Court composed of three such judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the judges of the High Court is two) by a Court composed of such two judges, and in case of difference the opinion of the senior judge shall prevail. The High Court, if it think further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken. The result of such enquiry and the additional evidence shall be certified to the High Court by the district judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit. Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs. DISSOLUTION OF MAREIAGE. 125 During the progress of the suit in the Court of the 1 district judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under section eight, and the High Court shall thereupon, if it think fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in section 16 shall apply to every suit so removed; or it may direct the district judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case. "Every decree . . . made by a district judge " : Decree of It is further provided by sect. 20 that every decree of nullity of marriage made by a district judge shall be subject to con- firmation by the High Court, and that the provisions of sect. 17, clauses (1), (2), (3), and (4), shall mutatis mutandis apply to such decrees. It follows, therefore, that (i) a decree of nullity of marriage made by a district judge must be confirmed by the High Court, but may be confirmed at any time after the pro- nouncing thereof, whereas a decree of dissolution of marriage cannot be confirmed till after the expiration of at least six months ; and (ii) that no provision is made for intervention in the case of a suit for nullity of marriage. There is no appeal from the decree of a district judge for dis- NO appeal solution of marriage or of nullity of marriage ; nor from the in certain order of a High Court confirming or refusing to confirm such cases - decree (sect. 55, post}. But a petitioner whose suit for dissolution or nullity of marriage has been dismissed may appeal to the High Court; or (in the case of a suit for dissolution) may present " a similar petition to the High Court " (sect. 13, ante). " Confirmation of decree by High Court " : Confirmation Inasmuch as a suit for divorce is to be dealt with (so far as is 126 THE INDIAN DIVORCE ACT. 17. As to award of damages ; and as to costs. Reconciliation of parties after decree of District Court. Intervention : when to be made. possible) like all other cases between private litigants, the High Court ought not to make a decree nisi, passed by a district judge, absolute without a motion being made to it to that effect ( Galley v. Culley, I. L. E., x All. 559). When, however, the Court is moved under this section to confirm the decree nisi of a district judge, it has the fullest power to deal with the case as justice may require. And even if, in such a case, the co-respondent has not appealed against the award of damages by the lower Court, the High Court can deal with that part of the decree as well as the part dissolving the marriage (Kyte v. Kyte and Cooke, I. L. E., xx Bomb. 362). The decree of a District Court dissolving a marriage is a final decree as far as that Court is concerned, and, when costs are awarded, the order as to costs is not a separate order and cannot be treated as distinct from the decree for dissolution. The whole decree, including the order as to costs, is subject to confirmation by the High Court, and no portion of it can, until so confirmed, be capable of execution (Coates v. Coates, No. 35, Punjab Record, 1887). Reconciliation of parties after decree nisi made ly district judge. The Indian Divorce Act gives no express power to the parties to a suit for dissolution of marriage to prevent a decree nisi passed in it by the district judge from being made absolute, but the High Court will, in such a case, follow the principles of the practice of the English Divorce Court, and, if both parties so desire, will make an order staying all proceedings in the cause. The High Court cannot, however, set aside the decree nisi (Culley V. Culley, I. L. E., x All. 559). "During the progress of the suit in the Court of the district judge " : It is only in suits for dissolution of marriage that a person may apply to the High Court under this section, and it is only during the progress of the suit in the District Court that such application can be made. Apparently, it is not permissible to intervene after the district judge has made his decree ; the fact, however, that the decree of a district judge cannot be confirmed till after the expiration of not less than six months from the pronouncing thereof would seem to show that the meaning of the Legislature was not that a person could intervene, by appli- cation to the High Court, only "during the progress of the suit" in the District Court. NULLITY OF MARRIAGE. 127 Apparently, the sole ground upon which, a person may apply 17. to the High Court under this section is that the parties are, or Q roun( j O f have been, acting in collusion for the purpose of obtaining a intervention, divorce. But it could not have been intended to preclude the intervenor from bringing before the Court matters which would be good grounds for rescinding a decree nisi under sect. 16 of the Act. IV. Nullity of Marriage. 18, Any husband or wife may present a petition to Petition for the District Court or to the High Court, praying that nullity, his or her marriage may be declared null and void. " Any husband or wife ": Husband or "Wlfg. Under the Indian Divorce Act, apparently, only the husband or the wife (or if the petitioner is a lunatic or idiot, his or her committee or custodian, sect. 48 ; or if he or she is a minor, his or her next friend, sect. 49) can sue for a decree of nullity of marriage. But in England any person having a sufficient interest in annulling a marriage, or persons interested in property, the succession to which depends upon the validity or invalidity of the marriage, may sue for a declaration of nullity, unless the validity of the marriage be disputed on the ground of impotency, in which case only the person who suffers an injury from it may sue " (Browne and Powles' Divorce, 5th ed., p. 157). Every petition for a declaration of nullity of marriage must Absence of state the absence of any collusion or connivance between the collusion or .... , , , T i / AI-\ T> L -a j.i connivance to petitioner and tno respondent (sect. 47). But it the marriage is ^ e 8 t a t e d in absolutely void al initio, no amount of collusion or connivance petition, between the parties will disentitle the petitioner to a decree of nullity. Nor can any person intervene for the purpose of show- ing the existence of collusion between the parties (cf. D. v. M. f. c. D., 28 L. T. 73). In England express provision is made by 36 Viet. c. 31 for intervention in such cases. Every petition for nullity of marriage must bear a Court fee Court fee stamp of Es. 20 (Court Fees Act, 1870, 2nd Sched., Art. 20). stam P- " Marriage may be declared null and void " : Nullity of marriage. In a suit for nullity of marriage, the only question to be de- cided is, marriage or no marriage, and it is not open to the Counter- respondent in such a suit to counter-charge the petitioner with h ar g e of having been guilty of. adultery or of cruelty, and to pray for a against^ petitioner. 128 THE INDIAN DIVOECE ACT. 18. Jurisdiction of Courts to declare mar- riage null and void. Ceremony of marriage must be proved. Grounds of decree. Decree of nullity. decree of dissolution or of judicial separation on those grounds " (Humphrey v. Williams f.c. Humphrey, 2 S. & T. 30 ; 29 L. J., P. & M. 62; Tavernorf.c. Ditchford v. Ditchford, 33 L. J., P. & M. 105). It must be remembered that in no case have the Courts in India jurisdiction under this Act to make decrees of nullity of marriage, unless the marriage has been solemnized in India (sect. 2, ante], Before a suit for nullity of marriage can be entertained, it must be proved that a ceremony of marriage was actually per- formed between the parties by a person competent to perform such ceremony (see Appendix ( A.) , ' ' Proof of Marriage ' ') . When this fact has been duly proved, the Court will presume that every formality has been duly complied with (Lopez v. Lopez, I. L. E., xii Calc. 706). 19. Such decree may be made on any of the fol- lowing grounds : (1.) That the respondent was impotent at the time of the marriage and at the time of the insti- tution of the suit ; (2.) That the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity ; (3.) That either party was a lunatic or idiot at the time of the marriage ; (4.) That the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. " Such decree": By 36 Yict. c. 31, every decree of nullity of marriage must, in the first instance, be a decree nisi, not to be made absolute NULLITY OF MAREIAGE. 129 till after the expiration of six calendar months from the pro- 19. nouncing thereof, unless the Court shall fix a shorter time. . " Under the Indian Divorce Act, a decree of nullity, when made by a High Court, is a decree absolute, but when made by a District Court must be confirmed by the High Court (sect. 20). " Any of the following grounds " : Ground for. No Court in India can entertain a suit of a matrimonial nature otherwise than as provided by the Indian Divorce Act, nor has it jurisdiction to make a decree of nullity on the ground that the marriage was invalid for some reason other than one of those specified in this section (Gasper v. Gonsalez, 13 B. L. E. 109). (i) " That the respondent was impotent at the time of the (i) Impotency marriage and at the time of the institution of the of res P ondeut - suit " : In a suit for nullity of marriage causa impotentice, the peti- tioner must prove that the respondent was impotent at the time of the marriage, as well as at the time of the institution of the suit : an impediment supervening after marriage is no ground fora decree of nullity (Brown v. Brawn, 1 Hagg. Cons. 524). It is not open to a husband or wife to sue for nullity of mar- Impotency of riage on the ground of his or her own impotency. It has, how- petitioner, ever, been held in Ireland that, if the respondent altogether repudiates the marital relation, the impotent petitioner may show that there is no verum mutrimonium, and maintain a suit for nullity on that ground (A. v. A., sued as B., 19 L. B., Ir. 403, Matr.). A marriage is not void, but voidable only, on the ground of Marriage impotency (P. v. 8., 37 L. J., P. & M. 80). merely , ,, ..,.. . , , , , , . voidable, and And the validity of a marriage can be impeached on this on j y at ground only by the party who suffers the injury and during the instance of lifetime of both parties to such marriage (A. v. B., L. E., 1 P. iu J lu- ed party. 559 ; P. v. S., 37 L. J., P. & M. 80). A suit for nullity of marriage causa impotetitice may be com- Suit for promised ( Wilson v. Wilson, 1 H. L. Gas. 538). nullity on And an agreement not to sue for nullity of marriage on the ^ * |j ou ground of impotency is a bar to a suit subsequently instituted compromised, on that ground. So, where in answer to the petition by the husband for a decree of nullity on the ground of the wife's incapacity, the wife pleaded that she and her husband, after a R. K 130 THE INDIAN DIVOECE ACT. Age of parties. What amounts to impotency. 19. year's cohabitation, had agreed to lire apart and not to make ~ any claim against each, other in a Court of law or equity, it was held that the respondent's agreement not to sue was sufficient consideration for the husband's engagement not to sue, and that such an agreement was a bar to his petition (Aldridge v. Aldridge, 13 P. D. 210 ; 58 L. J., P. & M. 8). There is no rule as to any particular age constituting a bar to a petition for nullity of marriage by reason of malformation (Williams v. Homfray f. c. Williams, 2 S. & T. 240; 30 L. J., P. & M. 73). Impotency: what constitutes. The impotency of the respondent must be such that consummation of the marriage is practically impossible. If such be the case, it is not necessary to prove that there is any malformation or structural defect rendering consummation physically impossible ((?. v. G., L. B., 2 P. 287 ; 40 L. J., P. & M. 83). So, where it appeared from the husband's evidence that when- ever he attempted to have intercourse with his wife the act produced hysteria on her part, and that the marriage had not been consummated after a cohabitation of three years, and the wife refused to submit to inspection, the Court granted the petitioner a decree of nullity (H. v. P. /. c. H., L. B., 3 P. 126). Must be But to be a ground for a decree of nullity, an incapacity to permanent. consummate marriage must be permanent and incurable. If, therefore, there is a possibility that the incapacity may be cured, even though such cure may be highly improbable, the Court will not pronounce a decree of nullity (Stagy v. Edgecumbe, 3 S. & T. 240 ; 32 L. J., P. & M. 153.) A malformation, however, which might possibly be cured, but at great risk to life and with doubtful success as to the end desired, is equivalent to a permanent and irremovable mal- formation (Serrell v. Serrell and Samford, 2 S. & T. 422; 31 L. J., P. & M. 55). And where, after a partial cohabitation of two years and eight months' duration, it appeared that the woman was impotent, but that she might probably be cured if she would submit to an operation involving no great risk to life, and she refused to do so, the Court granted a decree of nullity (L. v. L., 7 P. D. 16; 51 L. J., P. & M. 23). The old ecclesiastical Courts granted a decree of nullity if, owing to a natural incurable malformation of the female, a partial connection only was possible (D. v. J.., 1 Boberts. Eccl. E. 279). NULLITY OF MARRIAGE. 131 Impotency quoad hnnc vel hanc. A decree of nullity will be 19- granted if tlie respondent, though generally capable of perform- n Hoa d fa tne ing the act of coition, is yet incapable of performing it with the vel hanc. petitioner (N. v. M., 2 Eoberts. Eccl. E. 625 ; G. v. M., L. E., 10 A. C. 171 ; and cf. S. v. B., I. L. E., xvi Bomb. 639, a case under the Parsi Marriage Act, 1865). And although the general rule is that if a respondent, whose marriage has been declared null and void on the ground of his or her impotency, marries again and has children by the second marriage, the latter marriage must be set aside and the former marriage declared valid (Welde v. Welde, 1 Eoberts. Eccl. E. 578), the rule cannot apply where the first marriage has been declared void merely on the ground of the respondent's impotency quoad the petitioner. Impotency of respondent : burden of proof . As a general rule, Burden of the burden of proof in suits for nullity causa impotentice lies on proof, the petitioner (Cunoy. Cuno, L. E., 2 H. L. (Sc.) 300). But where, after a cohabitation of three years, the marriage Triennial remains non-consummated, the onus is shifted, and a presump- cohabitation, tion arises as to the impotency of the respondent (Marshall f. c. Hamilton v. Hamilton, 33 L. J., P. & M. 159). So where, after a cohabitation of fourteen years, the woman presented a petition for nullity on the ground of the man's impotency, and the medical evidence showed that she was a virgo intacta et apta viro, the House of Lords held that she was entitled to a decree on the ground that the cohabitation had been for a much more lengthened period than was required to raise the presumption against the man, and that the onus was thrown upon the respondent of either disproving the facts, or of showing by clear and satisfactory evidence that the result was due to causes other than his own impotency (Lewis f. c. Hayward v. Hay ward, 35 L. J., P. & M. 105). This rule of "triennial cohabitation" is derived from the canon law, but it has not been recognized in England beyond this point, that where a husband or a wife seeks a decree of nullity propter impotentiam, if there is no more evidence than that they have lived together in the same house for a period of three years and with ordinary opportunities of conjugal inter- course, and it has been clearly proved that there has been no consummation, then, if that is the whole state of the evidence, inability on the part of one or the other will be presumed. On the other hand, the presumption to be drawn from the fact of non-consummation after three years' cohabitation is capable of K2 132 THE INDIAN DIVORCE ACT. 19. being rebutted. Nor need every case be fortified with the pre- ~ sumption ; for, although no presumption can arise from the absence of consummation within a less period than three years, yet positive evidence may be given from which the same inference of inability may be drawn (G. v. M., 10 App. Ca. 171). So the rule of triennial cohabitation is relaxed where the irnpotency is due to a malformation that is congenital or manifest and incurable. But even in such cases a cohabitation of a few months only will not suffice (Staggf. c. Edgecum.be v. Edgecumbe, 3S. &T. 240; 32 L. J., P. & M. 153; F. f. c. Z>. v. D., 4S. &T. 86; 34 L. J., P. & M. 66). Proof of Impotency of respondent : evidence. As a general rule, a decree impotency. o f nu liity O n the ground of the respondent's malformation will not be granted unless the existence of incurable malforma- tion is proved by a medical man who has examined the respon- dent (T. v. M.f. c. T., L. E., 1 P. 31 ; 35 L. J., P. & M. 10). And where a question of impotency is raised medical in- spectors are usually appointed to examine the parties. Each party has the right to nominate two such inspectors to examine him or her, and it is not necessary that the parties should be examined by the same inspectors (B. f. c. C. v. C., 32 L. J., P. & M. 135). The petitioner, when moving for the appointment of inspectors, should also move for an order that the respondent submit to in- spection (Anon., 31 L. J., P. & M. 164). It is not, however, the practice of the Court, in a suit for nullity by reason of the wife's malformation, to make an order for the inspection of the husband (B. v. L., 16 W. E. (Eng.) 943). The report of the inspectors is not conclusive, and the in- spectors themselves and other medical men may be examined (Williams v. Homfray f. c. Williams, 2 S. & T. 240; 30 L. J., P. & M. 73). In a suit for nullity on the ground of the respondent's im- potency, any evidence is admissible which tends to throw light upon the case set up by the petitioner or the respondent. The parties may, therefore, give evidence as to disputes between them during the cohabitation, although the only issues raised by the pleadings are the respondent's impotency and consum- mation of the marriage (X.f. c. Y. v. Y., 34 L. J., P. & M. 81). As a general rule, the Court will not grant a decree of nullity on the unsupported oath of the party seeking to be relieved from its obligation (U.f. c. J. v. J.. 37 L. J., P. & M. 7). So, where in a suit for nullity by the wife, her evidence was NULLITY OF MAKRIAGE. 133 wholly unsupported, the physical appearances being consistent 19. with consummation, and the parties had lived together for eight ~ years without complaint by the woman, the Court dismissed her petition (T. f. c. D. v. D., L. E., 1 P. 127; 35 L. J., P. & M. 51). In certain cases, however, where the respondent confesses non-consummation of the marriage and refuses to undergo a medical inspection, the Court will grant the petitioner a decree of nullity propter impotentiam [Harrison v. Harrison, 4 Moore, P. C. C. 96; L. v. L., 7 P. D. 16). Where, therefore, in a suit for nullity by the wife, the man did not appear and did not submit to inspection, the Court, although the medical evidence was not conclusive as to the woman's virginity, took it as proved, on her evidence on affi- davit, that (1) the marriage was never consummated; (2) that this was owing to the impotence of the respondent ; and (3) that the physical appearance of the woman was to be accounted for otherwise than by consummation, and pronounced a decree in her favour (F. /. c. D. v. D., 34 L. J., P. & M. 86). So, again, where the evidence of the husband showed that, whenever he attempted to have intercourse with his wife, the act produced hysteria on her part, and that the marriage had not been consummated after a cohabitation of three years, and the wife refused to submit to inspection, the Court, on the hus- band's evidence, pronounced a decree of nullity (H. v. P. f. c. H., L. E., 3 P. 126). A wilful, wrongful refusal of marital intercourse is not per se Wilful refusal sufficient to justify the Court in declaring a marriage null and ?' marital * , , . & intercourse, void by reason or the respondent s impotency. 5ut when after a reasonable time it is shown that there has been no sexual intercourse, and that the wife had resisted all attempts on the part of the husband, the Court, if satisfied of the bona fides of the suit, will infer that the refusal arises from incapacity, and will pronounce a decree of nullity (S. v. A. f. c. 8., 3 P. D. 72 ; 47 L. J., P. & M. 75). And from the fact of non- consummation of a de facto marriage after a period of cohabitation, during which one party made repeated attempts and was always willing and anxious to bring about consummation of the marriage, the Court, notwithstanding the apparent competence of both parties, may draw the inference that something more than seemingly mere wilful refusal must have animated the party who has, in fact, persistently refused to allow consummation (F. v. P. f.c. F., 751.. T. 192). Delay in suing for a decree of nullity causa impotentise. Relief Delay on in suits for nullity on the ground of the respondent's impotency petitioner. 134 THE INDIAN DIVORCE ACT. 19. Suggests want of sincerity. will not, as a general rule, be granted unless the petitioner is prompt in seeking it and sincere in the motive for doing so (M.f. c. O. v. C., L. E., 2 P. 414; 41 L. J., P. & M. 37). But delay in instituting a suit for nullity on this ground is not an absolute bar ; it suggests a want of sincerity on the part of the petitioner and ulterior motives for instituting the suit, and, when it exists, renders it necessary that the suit should bo supported by evidence of the clearest and most satisfactory kind (Ewens v. Tytherleigh f. c. Ewens, 3 S. & T. 312; 33 L. J., P. & M. 37 ; M. f. c. D. v. D., 10 P. D. 75 ; 54 L. J., P. & M. 68). "Where, therefore, a woman who had married in 1834 a man with whom she lived till 1838, when she separated from him, and in 1853 caused him to be sued for her debts, and obtained an allowance from him which was continued till October, 1858, and in November, 1858, sued for a decree of nullity of marriage on the ground of his impotency, it was held that she must give clear and unequivocal proof of the truth of her allegations (Caatledenv. Castleden, 9 H. L. Cas. 186; 4 Macq. H. L. Gas. 159; 31 L. J., P. &M. 103). And where the petitioner has been guilty of delay, it is neces- sary to show that the motive in suing is " sincere," that is to say, that the petitioner is suffering from a sense of injury due to the incapacity of the respondent to fulfil the duties of husband or wife, and that there is no other subsidiary motive ( Wilkins v. Reynolds, 1 P. D. 405 ; 45 L. J., P. & M. 89). So, where M. married B. in August, 1853, slept in the same bed with him for about two years, when, at his request, she occupied a separate room but lived in his house till June, 1863, when she left, and in 1864 sued for a decree of nullity of mar- riage on the ground of B.'s impotence and the medical evidence showed that she was a virgo intacta, the Court held that lapse of time, coupled with indirect motives in bringing the suit, disentitled her to the relief sought (Marriott f. c. Burgess v. Burgess, 3 S. & T. 550; 33 L. J., P. & M. 203). A wife lived with her husband for twenty- one months after the marriage, when they separated for nine months, at the end of which time they again cohabited for five and a half years. She then left her husband in consequence of his cruelty, and twenty-seven years after the marriage and when she was forty - eight years of age, she sued for a decree of nullity on the ground of her husband's impotence, but the Court refused to grant her the relief prayed for (Wilkins v. Reynolds, uli supra]. The doctrine of "want of sincerity " has, however, not been regarded with f aYOur in the more recent decisions of the English NULLITY OF MARRIAGE. 135 Court (sec G. v. M., 10 App. Gas. 171), and, in any case, where 19. the impotence of the respondent is undoubted and complete, mere delay on the part of the petitioner will not disentitle him or her to relief (Cuno v. Cuno, L. E., 2 H. L. (Sc.) 300; L. f. c. B. v. B., (1895) P. 274; 64 L. J., P. & M. 121). Suit for nullity causa impotentiee : adultery of petitioner. In a Adultery of suit for nullity of marriage, matrimonial misconduct on the part of the petitioner is no bar to the grant of relief. Where, therefore, in a suit by the wife for nullity of marriage on the ground of her husband's impotence (which was fully proved), it was shown that she had been cohabiting with another man and only brought the suit when her misconduct was discovered, the Court nevertheless granted her a decree of nullity. In such cases the conduct of the petitioner must be judged with a knowledge of the fact that the respondent was incapable of marital duties (M. v. D., 10 P. D. 75 ; 54 L. J., P. & M. 68). " Prohibited degrees" : "Prohibited The " prohibited degrees " here referred to do not necessarily mean the degrees prohibited by the law of England (Lopez v. Lopez, I. L. E., xii Calc. 706 ; Hilliard v. Mitchell, I. L. E., xvii Calc. 324). Nor is there any enactment in force in British India which expressly defines the term for the purposes of the Indian Divorce Act or for the various classes of Christians who are entitled to apply for relief thereunder. Accordingly, each case will have to be decided in accordance with general principles. (i) According to the decided weight of authority, at least in (i) Capacity England, the capacity to contract a valid marriage depends upon * contract the law of a person's domicil * (Dicey's Conflict of Law, 1896, e ^ndTon pp. 642, 643 ; Brook v. Brook, 9 H. L. Gas. 193 ; Lord Mac- lex domicilii. naghten, Cooper v. Cooper, 13 App. Gas. 88). " It is a well-recognized principle of law that the question of * See, however, Simonin f. c. Mallac v. Mallac (2 S. & T. 67 ; 29 L. J., P. & M. 97 ; and the observations of Hannen, P., in Sottomayor v. De Barros, 5 P. D. 100 ; Story's Conflict of Law, para. 103). Ac- cording to these authorities, capacity to contract marriage depends upon the lex loci celebrationis. Inasmuch, however, as marriage, though a contract, is something more than a contract, as it is also a status arising out of contract, it would certainly seem more expedient to refer the question of capacity to the law of the domicil. 136 THE INDIAN DIVOKCE ACT. 19. personal capacity to enter into any contract is to be decided by the law of domicil. It is, however, urged that this does not apply to the contract of marriage, and that a marriage valid according to the law of the country where it is solemnized is valid everywhere. This, in our opinion, is not a correct state- ment of the law. The law of a country where marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted ; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil ; and if the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage and stamp a marriage between persons within the prohibited degrees as incestuous, this, in our opinion, imposes on the subjects of that country a personal incapacity which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between persons both, at the time of their marriage, subjects of and domiciled in the country which imposes this restriction, wherever such mar- riage may have been solemnized " (Sottomayor v. De JBarros, 3 P. D. 1 C. A.). (ii) If domicils (ii) Personal capacity to contract marriage depends, when different, ^ho domicils of the man and woman are different, upon the law domicil of ^ ^he man ' s domicil. If, therefore, the marriage is valid by the the man. law of the man's domicil, it is valid, although it may be invalid by the law of the woman's domicil (Sottomayor v. De Burros, o P. D. 94 ; Dicey's Conflict of Law, 1896, p. 626). This limitation of the general rule is, as Professor Dicey says, illogical, but must be " assumed to be good law " (Conflict of Law, p. 647). Applying, then, these general principles, the following proposi- tions may be laid down as to the conditions under which a mar- riage solemnized in India will be held valid or invalid : (a) IF BOTH PAETIES ABE DOMICILED IN IXDIA. (a) Both par- There being no express law in British India which defines "the ties domiciled prohibited degrees of consanguinity or affinity," each case must be India 1 1S decided by reference to the personal law of the parties to the mar- riage, i.e., to the customary law of the class to which such persons belong. If both parties are subject to the same personal law, the marriage will be invalid if forbidden, valid if allowed, by that law. If, on the other hand, they are not subject to the same personal law, the marriage, if allowed by the personal law NULLITY OF MARRIAGE. 137 of the husband, will (presumably) not be invalid by the law of 19. British India simply because it may happen to be forbidden by the personal law of the woman. (Whether, however, this would be the case if the woman were a British subject, domiciled in. India but of British birth, is, at least, questionable. ) If, then, the parties are domiciled in India and are not for- bidden by their personal law to marry inter se, their marriage will be valid by the law of British India, although they may stand towards each other within the degrees prohibited by the law of England (Das Merces v. Cones, 2 Hyde, 65 ; Lopez v. Lopez, I. L. E., xii Calc. 706). Thus, the marriage of an East Indian Christian with his deceased wife's sister, also an East Indian, was held valid (?'&.). As regards British subjects domiciled in India, the personal law to which they are subject, as regards capacity to contract marriage, is the law of England as enacted by 32 Hen. VIII. c. 38, for the later statute (5 & 6 Will. IV. c. 54) is not, unless specially extended thereto, applicable to any conquered colony (Brook v. Brook, 9 H. L. Gas. 193), and in no way applies to any part of British India (Das Merces v. Cones, ubi supra). Such British subjects, therefore, are, irrespective of the church to which they belong, prohibited from marrying inter se, if they are within the prohibited degrees set forth in Chapter 18 of Leviticus. Whether a marriage between British subjects, domiciled in India, who are within such prohibited degrees, is merely voidable at the option of either party during the lifetime of both, or is absolutely null and void (as it would be under 5 & 6 Will. IV. c. 54), is, for the purposes of the Indian Divorce Act, quite immaterial. In either event, it is open to the man or the woman to apply for a decree of nullity on the ground that the parties to the marriage were within the "prohibited degrees." (&) IF ONE ONLY OF THE PARTIES IS DOMICILED IN INDIA. (b) If one party alone The question whether the parties were capable of marrying domiciled in inter se will (presumably) depend upon either the personal law British India. or the law of the domicil of the man, the personal law, if it is he who is domiciled in India, the law of his domicil, if it is the woman who is domiciled in India. (But it is questionable whether the marriage of a woman, who is a British subject and of British birth, with a man whom she is prohibited from marrying by the law of England, will be held valid, although such a marriage may be allowed by the personal law or the law of the domicil, as the case may be, of the man.) 138 THE INDIAN DIVORCE ACT. 19. (c) IF BOTH PAETIES AKE DOMICILED ABROAD. (c) Both par- (i) If their domicil is the same, their capacity to marry inter se ties domiciled w iu depend upon the law of that domicil. abroad. (ii) If their domicils are different. *When the man's domicil is English, the marriage, if valid by English law, will (presum- ably) be valid by the law of British India, although the marriage may be prohibited by the law of the woman's domicil. *When the domicil of the man is not English, the marriage, if valid by the law of his domicil, will (presumably) be valid by the law of British India, although the marriage may be invalid by the law of the woman's domicil. (It is, however, question- able if this would be so held if the woman happened to be a British subject of British birth.) *In either case, if the marriage is invalid by the law of the man's domicil, it will be invalid by the law of British India, although it may be valid by the law of the woman's domicil, whether the latter be English or not. As regards persons, both of whom are domiciled in England, " the prohibited degrees " are the degrees prohibited by the law of England, viz., those referred to in the Church of England prayer book (Reg. v. Chadwick, 11 Q. B. 173). If such persons, being within the said prohibited degrees, intermarry in India, the marriage will be absolutely null and void (Brook v. Brook, 9 H. L. Cas. 193; Fenton v. Livingstone, 3 Macq. H. L. Cas. 497). For, although the statute of William IV. has not been extended to this country, persons domiciled in England, whether British subjects or aliens, are bound by its provisions wherever they may contract a marriage (Brook v. Brook, ubi supra ; Mette v. Mette, 1 S. & T. 416 ; 28 L. J., P. &M. 117). Such marriages, when solemnized in India, will, therefore, be declared null and void (Billiard v. Mitchell, f I. L. K., xvii Calc. 324; Pimeny. * The propositions here laid down are, it is submitted, justified by the decision in Sottomayor v. De Barres (5 P. D. 94), and the provi- sions of sect. 7 of the Indian Divorce Act. It would, perhaps, be better to insist on the marriage being valid by the law of the domicil of the woman as well as by that of the man. t In this case it is curious that the Court should have felt any doubt as to the domicil of the petitioner. Admittedly his domicil of origin was English, and as there was no proof that he had acquired any other domicil, he must, in law, be considered to have still retained that domicil (Udny v. Udny, and cases cited under "Domicil," note to sect. 2, ante). NULLITY OF MARRIAGE. 139 Hindhauyh, unreported but referred to in ./fog. v. Robinson, I. L.E., 19. xvi. All. 212). In no case, however, whatever may be the law of the parties' Incestuous domicil, will the Courts of this country recognize as a valid union, marriage that which is held to be incestuous by the whole Christian world, e.g., a marriage between a brother and sister (Dicey's Conflict of Law, 1896, p. 640). " Consanguinity (whether natural or legal) or affinity " : Consangui- nity or This prohibition applies as well to illegitimate as to legitimate affinity. relations. Thus, not only is marriage with a deceased wife's sister void by the law of England (Andrews f. c. Boss v. Boss, 14 P. D. 15 ; 58 L. J., P. & M. 14), but also a marriage with a deceased wife's illegitimate sister (Reg. v. Brighton, 30 L. J., P. & M. 197; cf. Reg. v. St. Giles-in-the-Fields, 11 Q,. B. 173; 17 L. J., Q. B. 81). So, again, a marriage between a man and the daughter by a former marriage of his deceased wife is by the law of England absolutely null and void (Blackman v. Brider, 2 Phil. 360). Nor, in such cases, does the fact that both parties went through the form of marriage with full knowledge of the impediment affect the matter (Andrews f. c. Ross v. Boss, ubi supra}. On the other hand, affinity is not constituted by mere carnal intercourse apart from marriage. Where, therefore, a man avowed that he had had intercourse with his wife's mother previously to his marriage with his wife, it was held that affinity could not be so established by the law of England (Wing v. Taylor f. c. Wing, 2 S. & T. 278; 30 L. J., P. & M. 258). " Either party was a lunatic or idiot at the time of the Lunacy or marriage": idiocy. A marriage may be declared null and void on the ground that either the petitioner or the respondent was a lunatic or idiot at the time when the ceremony of marriage was performed. In the former case, unless the petitioner has recovered sanity, the suit may be brought by his or her committee or custodian (sect. 48). As to the course to be adopted when the respondent is of unsound mind at the time of suit, see the notes to sect. 48 (infra}. Marriage being a civil contract, it is necessary for its validity that the parties to it are capable of giving a true consent to its 140 THE INDIAN DIVORCE ACT. 19. Party subject to deluaions. Consideration for Court. Burden of proof. Supervening lunacy. performance. Inasmuch, therefore, as a lunatic or an idiot is, in law, incapable of giving a consent to the performance of any act, such person cannot contract a valid marriage. " Marriage is a contract as well as a religious vow, and, like all other con- tracts, will be invalidated by the want of consent of capable persons. And it may surely be added that if any contract more than another is capable of being invalidated on the ground of the insanity of either of the contracting parties, it should be the contract of marriage, an act by which the parties bind their property and their persons for the rest of their lives " ( per Lord Penzance, Hancock v. Peatty, L. R., 1 P. 341). Provided that the party was, in point of fact, incapable, at the time of marriage, of giving a true consent to the perform- ance of the contract, it is not necessary that he or she should have been found a lunatic by inquisition. Accordingly, the marriage of a person who is subject to delusions, but is other- wise sane, may be invalidated. For " a mere comprehension of the words of the promises (of the marriage ceremony) exchanged is not sufficient ; the mind of one of the parties may be capable of understanding the language used, but may yet be affected by such delusions or other symptoms of insanity as may satisfy the tribunal that there was not a real appreciation of the engage- ment apparently entered into" (per Hannen, J., Durham v. Durham, 10 P. D. 80). The consideration for the Court in each case is merely whether there was health or disease of the mind at the time when the marriage was solemnized. If disease is shown to have then existed, the marriage will be declared null and void, for the Court has no means of gauging the extent of the derangement consequent upon that disease, or of affirming the limits within which the disease might operate to obscure or divert the mental power (Hancock v. Peatty, L. E., 1 P. 335; 36 L. J., P. & M. 57). In every case the burden of proving that there was insanity or idiocy on the part of one of the parties to a marriage at the time it was celebrated rests upon the party asserting it (Durham v. Durham, 10 P. D. 80). It is only insanity or idiocy at the time of marriage that invalidates the contract. Therefore, a marriage contracted in a lucid interval by a person who was previously insane, and who subsequently to the marriage ceremony again relapses into insanity, is valid. But in such a case the onus of establishing the fact that the marriage was contracted in a lucid interval rests NULLITY OF MARRIAGE. 141 upon the party who alleges it, and such party must show sanity 19. and competence on the part of the other party at the period ~ when the act was done, and to which the lucid interval refers (Att.-Oen. v. Paruther, 3 Br. 0. 0. 444). If, therefore, both parties were capable of giving a legal consent to the celebration of the marriage at the time when it was actually performed, the supervening lunacy or idiocy of either of them will not affect the validity of the marriage. Deaf and dumb persons can enter into the contract of Deaf and marriage, and the presumption in such cases is in favour of dumb persons. the validity of the marriage, and of the capacity of the parties to it. The onus of proof is, therefore, upon the party who impeaches its validity (Harrod v. Harrod, 1 K. & J. 4 ; 18 Jur. 853). Where a suit for nullity of marriage on the ground of the Suit by petitioner's lunacy at the time of marriage is instituted by the committee. guardian of a lunatic, and, though the fact alleged has been duly proved, there is reason to believe that the respondent can establish the fact of the petitioner's recovery, the Court will give the latter an opportunity of doing so, and, if it is thereafter satisfied of the fact of such recovery, will refuse to pronounce a decree of nullity, except at the personal instance of the petitioner (Hancock v. Peatty, ubi supra]. "The former husband or wife of either party was living Former at the time of the marriage, and the marriage with husband or such former husband or wife was then in force " : alive at If the former husband or wife of either party was living at marr i a ge. the time of the marriage sought to be annulled, and the mar- riage with such former husband or wife was then in force, the subsequent marriage is absolutely null and void. Therefore, no matter how gross has been the misconduct of the petitioner for a decree of nullity on this ground, the Court is bound to grant, and has no discretion to refuse, the decree prayed for (Miles v. Chilton, 1 Eobert. 684). It must be remembered, however, that the Courts in India have no jurisdiction under the Indian Divorce Act to grant any decree of nullity except in such cases in which it can be proved that the marriage, in respect of which relief is prayed, was solemnized in India. A person does not commit the offence of bigamy when he or "Bigamy." she, not having heard for seven years anything of his or her 142 THE INDIAN DIVOECE ACT. 19. Burden of proof. Former mar- riage must be subsisting and legal. Re -marriage of party to divorce before expiry of appointed time. wife or husband and believing her or him to be dead, goes through a form of marriage with another person ; but if it subsequently appears that the former wife or husband was alive and the former marriage was in force at the time of the second marriage, the latter will be absolutely null and void. And this will be the case even if such former wife or husband dies immediately after the celebration of the second marriage between the other party to such former marriage and a third person. But, as it is a criminal offence for a person, being already married, to go through a form of marriage with another person unless he or she has not heard of the former wife or husband for seven years, and as the law always presumes against the commission of a criminal offence, it is incumbent on the person impeaching the second marriage to give proof that at the time of its performance the former wife or husband was alive, even though the full period of seven years had not then elapsed (Beg. v. Tivyning, 2 B. & A. 386). Of course, if at the time of the second marriage such former wife or husband had not been heard of by the other party for seven years, the burden of proving that she or he was actually then alive will rest on the person asserting the fact (see Evidence Act of 1872, s. 108). In order to render the subsequent marriage null and void, it must be shown not only that the former marriage was subsisting at the time, but also that it was in force or legal. If, there- fore, the alleged first marriage was one between persons who stood towards each other within the prohibited degrees, it, being a mere nullity under 5 & 6 Will. IV. c. 54, will not invalidate the second marriage (Reg, v. ChadwicJc, 11 Q. B. 173; 17 L. J., a. B. 71). So, again, where a man and a woman were married in 1874, but it appeared that the woman had previously gone through a form of marriage with another man, B., who was still alive, but that B. himself, at the time of his alleged marriage with the woman in question, had a wife living, the Court held (under the provisions of 21 & 22 Viet. c. 93) that the marriage of 1874 was valid and legal (Shilson v. Att.-Oen., 22 W. E. (Eng.) 831). If one of the parties to a divorce marries again after the decree nisi has been pronounced, but before it has been made absolute, or (in this country) even after it has been made absolute but before the expiry of the further period of six months from the date of the decree absolute (see sect. 57), the marriage so contracted is null and void (Chichester v. Muref. c. NULLITY OF MARRIAGE. 143 Ch f cheater, 3 S. & T. 223 ; Nolle v. Nolle and Goodman, L. E., 19. 1 P. 691; 38 L. J., P. & M. 52; Warier v. Warier, 15 P. D. 152; 59 L. J., P. & M. 87). For the prohibition contained in sect. 57 of the Indian Divorce Act against the marriage of either party within six months of the final decree, that is, the decree absolute, is an integral part of the proceedings, and a condition which must be fulfilled before the parties can contract a fresh marriage, and they cannot evade it by obtaining a domicil in another country (Warier v. Warter, uli supra}. As regards the jurisdiction of a Court to grant a decree of Jurisdiction nullity of marriage, which shall be effective to annul such ^ Court, marriage not only for the purposes of its own municipal law, but for the purposes of international law generally, see the notes to sect. 2, ante. For the purposes of international law, as well as for the purposes of the municipal law of British India, the Courts of this country have jurisdiction to annul a marriage only when such marriage was solemnized in India (sect. 2). " Jurisdiction of High. Court to make decree of nullity of Force or marriage " : fraudt It will be noticed that it is only the " High Court," pre- sumably as defined in sect. 3, which has jurisdiction to grant a decree of nullity on the ground that the consent of either party was obtained by force or fraud. " Consent was obtained by force or fraud " : Are contracts Ordinary contracts, if induced by force or fraud, are voidable i n( j uce d by at the option of the party coerced or defrauded (see sect. 19, force or fraud Indian Contract Act, 1872). But with regard to the contract of vo !f * rt ,., ., . . voidable? marriage a difficulty arises. If, like other contracts, it is, in such cases, merely voidable, can it be declared null and void after it has been consummated ? If so, what would be the posi- tion of any offspring of such marriage ? Would it be legitimate or illegitimate ? If, on the other hand, it is absolutely null and void, even though consummated, then the party in fault is, equally with the other party, at liberty to apply to the Court for its annulment. In other words, a man who has, for a mere temporary purpose, coerced or defrauded a woman into marry- ing him, can take advantage of his own fraud and be relieved from a bond which he subsequently finds irksome or unpleasant. "The least inconvenient view" does indeed seem to be that 144 THE INDIAN DIVORCE ACT. 19. suggested by a learned writer in the Law Quarterly Revieio ~ (1887, pp. 252, 253), viz., "that in such cases the marriage is void, but that the party in fault is estopped from denying its validity." That the marriage is not merely voidable but void is clear, for consensus non concubitus facit matrimonium, and con- sent there can, in truth, be none when the acquiescence of one of the parties has been obtained by force or fraud (cf . Harford v. Morris, 2 Hagg. Cons. 427). Force. As to the amount of force or pressure which, when exercised by the one party to induce the other to go through a ceremony of marriage, each case must be decided by its own circumstances. ' ' It has sometimes been said that, in order to avoid a contract entered into through fear, the fear must be such as would impel a person of ordinary courage and resolu- tion to yield to it. I do not think that this is an accurate state- ment of the law. Wherever, from natural weakness of intellect or from fear whether reasonably entertained or not either party is in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger" (Butt, J., Scott v. Sebriyht, 12 P. D. at p. 24). Instances. The most recent cases on this subject are the following : (a) The petitioner, a young woman of twenty-two years of age and entitled to a sum of 2,600?. in actual possession and a considerable sum in reversion, became engaged to the respon- dent, and, shortly after coming of age, was induced by him to accept bills to the amount of 3,325Z. The persons who had dis- counted these bills subsequently issued writs against her, and threatened to make her a bankrupt. The distress caused by these threats seriously affected her health, and reduced her to a state of mental and bodily prostration in which she was in- capable of resisting coercion and threats. Being assured by the respondent that the only method of evading bankruptcy pro- ceedings and exposure was to marry him, she reluctantly went through a form of marriage with him at a registrar's office. In addition to threats of ruining her, the respondent, immediately before the ceremony, threatened to shoot her if she evinced any signs of not acting voluntarily. The marriage, ivhich was not consummated, the parties leaving each other immediately after the ceremony, was declared null and void on the ground that there was no such consent on the part of the petitioner as NULLITY OF MAREIAGE. 145 the law requires (Scott v. Sebright, 12 P. D. 21; 56 L. J., 19. P. &M. 11). (b) Petitioner, who at the time was only seventeen years of age and of a weak and nervous temperament, was induced by her mother, acting in concert with the respondent, to go through a ceremony of marriage with the latter. At the time of the mar- riage, the mother, who was shown to have exercised an abnormal amount of control over her daughter, persuaded her that the ceremony she had gone through was merely one of betrothal. The marriage, which was never consummated, the parties leaving one another at the doors of the church and never meeting there- after, was declared null and void, on the ground that the peti- tioner had acted under the duress of her mother, and was not a consenting party to the marriage (Clarice v. Clarke, (1896) P. 1 ; 65 L. J., P. & M. 13). In this case the noticeable fact is that the duress was not so much that of the respondent as of the petitioner's own mother. Inasmuch, however, as the mother was acting in connivance with the respondent, the latter was as responsible for it as if he had himself been guilty of the wrong. Under the Indian Con- tract Act (sect. 19) he would, apparently, have been responsible for the mother's wrongful conduct, although he was unaware of it and in no way authorized it (cf. sects. 15, 16, 18, and 19 of that Act with sect. 17). Whether this be so or not as regards ordi- nary contracts, it may be a question whether in this respect the contract of marriage does not differ from other contracts. As- suming that, to render voidable an ordinary contract, the coercion or undue influence must, as in the case of fraud, be that of the other party to the contract or of someone acting with his con- nivance, or of his agent, will a marriage which has been induced by the coercion or undue influence of a stranger, acting without the knowledge or authority of the respondent, be regarded as valid or be set aside as a mere nullity ? Presumably, it will be declared null and void, for the petitioner's consent is as much wanting in the one case as in the other, and the contract of mar- riage is in many respects dissimilar to ordinary contracts. (c) A man, after paying attentions to a young girl of sixteen years of age, which she rejected, produced a pistol and threatened to blow out her brains. She, thereupon, consented to marry him if he put away the pistol, which he did. Shortly afterwards, she in the meantime having returned to her home, he intercepted her at a railway station and took her to the office of a marriage registrar, saying that they were going to see his mother. R. L 146 THE INDIAN DIVORCE ACT. 19. During the ceremony she fainted, and immediately on its con- clusion she left him. The marriage tvas never consummated, and the man never insisted on marital rights. Upon these facts the Court declared the marriage to be null and void (Bartlett f. c. Sice v. Mice, 72 L. T. 122). (d) The respondent had made the petitioner an offer of mar- riage, which she had refused, and on a Sunday in July, 1888, under the pretence of going to the afternoon service at St. Paul's Cathedral, he took her to St. Bride's Church, Fleet Street, and outside the church suddenly said to her, " You must come into the church and marry me, or I will blow out my brains and you will be responsible." According to her own statement, she became so alarmed that she did not know what she was doing, and went into the church, where the ceremony was performed, and signed the register. The respondent had previously obtained a licence on a false declaration as to his own age and the peti- tioner's residence, and had made arrangements for the ceremony to be performed on that day. The vicar of St. Bride's, who performed the ceremony, stated that the petitioner went through it without showing any signs of unwillingness, repeated the responses in an audible tone, and signed the register in a clear, firm hand. After the ceremony the respondent took the peti- tioner home and left her at the door of the house. The mar- riage was never consummated, and the parties never saw each other again, though they corresponded, but on the footing of cousins, and not as husband and wife. The petitioner did not mention the marriage to her parents, because, as she explained, she did not regard it as binding on her. The respondent, who did not appear at the hearing, admitted that he did not care for the petitioner and only married her for her money. The evi- dence showed that the petitioner was of a weak, impressionable character, with not much power of resistance to a stronger will, but that she was not particularly disposed to fall into a hysterical state in the medical sense of the term. The Court held that the facts above set forth were insufficient to rebut the presumption of consent, that the marriage was valid, and that the petition must be dismissed (Cooper f. c. Crane v. Crane, (1891) P. 369). In arriving at this conclusion, Collins, J., was undoubtedly in- fluenced by the evidence as to the conduct of the petitioner during the ceremony. " When," he remarks, " a person of full age and of sound mind has gone through the ceremony of mar- riage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and has herself NULLITY OF MARRIAGE. 147 complied with the formality of signing her name and answering 19. questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled. ... In order to hold that the ceremony so performed was not binding, I think I should have to infer as a fact one of two things either that she was so perturbed by terror that her mind was unhinged, and she did not understand what she was doing and this, I think, is what is meant by the words ' not know what she is about,' in the passage from Bishop, cited in the argument and which is based on Fulwood's Case (Cro. Car. 482, 488, 489) or that, though she understood what she was doing, her powers of volition were so paralyzed that, by her words and acts, she merely gave expression to the will of the respondent, and not her own." After consideration the learned judge found that neither alternative was supported by the evidence. Apart from any question of mental capacity, an objection As regards that a deaf and dumb person did not understand the nature of ^ ea ^ an( l the contract of marriage, which he or she had been induced to enter into, is an objection on the ground of fraud (Harrod v. Harrod, 1 K & J. 4 ; 18 Jur. 853). Mere deceit as to the position or circumstances of one of the Deceit as to parties is not a sufficient ground for a decree of nullity ( Temple- position of ton v. Tyree, L. R., 2 P. 420; 41 L. J., P. & M. 86; Swing v. parties Wheatley, 2 Hagg. Cons. 175). Although nothing is said in this section as to mistake, it can "Mistake." hardly be doubted that the High Court has jurisdiction to declare null and void a marriage contracted by one of the parties under a bona fide mistake as to the person of the other party. For instance, A., a person who is both deaf and blind, goes through a ceremony of marriage with B., thinking that B. is C. In such a case there would be no consent whatever on the part of A. to marriage with B. 20. Every decree of nullity of marriage made by a Confirmation district judge shall be subject to confirmation by the judge's High Court, and the provisions of section seventeen, decree - clauses one, two, three and four, shall mutatis mutandis apply to such decrees. In England, a decree of nullity of marriage is in the first instance a decree nisi, not to be made absolute (unless the Court L2 148 THE INDIAN DIVORCE ACT. 20. expressly shortens the time) till the expiration of six months from the date of the decree nisi. During this interval any person may intervene, as in suits for dissolution of marriage (Matrimonial Causes Act, 1873, s. 1). Under the Indian Divorce, no provision is made for interven- tion in a suit for nullity, whether instituted in the District Court or the High Court, and, except in the case of a decree made by a district judge, a decree of nullity is a final decree as soon as it is made. It is also to be noticed that, unlike a decree of dissolution, a decree of nullity made by a district judge may be confirmed by the High Court immediately after it has been made (see sect. 17). Children of annulled marriage. Children of annulled marriage : right of succession. (a) Only in certain cases. 21, Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a mar- riage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract. " This section, which is taken textually from the New York Code, and resembles the provisions of the French Code and the numerous systems descended from Roman law, permits the children to succeed as legitimate to the property of the parent competent to many, and thus relieves them pro tanto from the stigma of illegitimacy" (speech of Sir H. Maine, Gazette of India, February, 1869). There are several observations to be made regarding the pro- visions of this section : (1) It is only in certain specified cases that the children of an annulled marriage are entitled to succeed as here laid down. Accordingly, no child born of a marriage which has been an- nulled on the ground that the parties were within the prohibited degrees, or on the ground that the consent of one of the parties NULLITY OF MAERIAGE. 149 to the marriage was obtained by force or fraud, can succeed 8 *! under this section to property as legitimate. (2) The children of an annulled marriage are not hereby (b) Children declared legitimate. The Select Committee, out of deference to the authority of Sir Barnes Peacock and Mr. Justice Norman, purposely refrained from giving jurisdiction to the Courts to make declarations of legitimacy, principally because such decla- rations would have no extra-territorial effect. (3) It is only to the property of that parent who was at the (c) Succeed time of the marriage competent to contract marriage that the on V to P ro ' child is entitled to succeed, as though legitimate ; to the property p are nt com- of the other parent he or she has no claim whatever. petent to (4) " Children begotten before the decree is madd," that is to man 7- say, any child either born before the decree is made or within W If begot- 280 days from the date when the parties last had access to each decree other previously to the making of the decree (Indian Evidence Act, 1872, s. 112). (5) The principle embodied in this section is not recognized in (e) Principle aU systems of law. For instance, by the law of England, the children of a void marriage are illegitimate for all purposes, nized. Inasmuch, therefore, as succession to immoveable property is governed by the lex loci situs, and to personal property by the lex domicilii of the late owner (see Indian Succession Act, 1865, BS. 5, 19 ; Ewin, In re, 5 B. & C. 451 ; Freke v. Lord Carbery, L. E., 16 Eq. 466; Westlake's Private International Law, 2nd ed., p. 168; Eattigan's Private International Law, pp. 80 87; Dicey's Conflict of Law, 1896, pp. 516, 682), if the estate of the parent who was competent to contract consists of immoveable property in, e.g., England, or if it consists of moveable property (even though such moveable property be in India), but the late owner's domicil at the time of death was, e.g., England, the claim of the child to succeed thereto would not be recognized by the English Courts. In such cases no difficulty can arise so far as immoveable property, situate out of British India, is con- cerned, for no decree of the Indian Courts can give the child a right to succeed to such property. But if the estate of the parent competent to contract marriage consists of moveables, and such parent's domicil at the time of death was English, the right of the child to succeed thereto would not ordinarily be recognized by the Courts of this country, even if the moveables were situate in British India. Sect. 21 of the Indian Divorce Act, however, engrafts an exception on to the ordinary law as laid down in the Indian Succession Act, and gives the child, 150 THE INDIAN DIVORCE ACT. 21. under the specified circumstances, a right which he or she would not otherwise have had in this country, and which would still be unenforceable in the English Courts. If, however, the estate of the parent consists of immoveable property situate in, or of moveable property and such parent's domicil at the time of death was, British India or some other country, the law of which gives such child a right to succeed as legitimate (e.g., that of Scotland, Wilson, In re, L. E., 1 Eq. 247; 35 L. J., Ch. 243), the right of such child to succeed will be recognized and enforced not only by the lex loci situs or lex domicilii of the late owner, as the case may be, but also will receive international recognition. No decree for divorce a inensa et toro to be made. Decree of judicial separation obtainable by husband or wife. V. Judicial Separation. 22. No decree shall hereafter be made for a divorce a mensd et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensd et toro under the existing law, and such other legal effect as hereinafter men- tioned. The Matrimonial Causes Act (20 & 21 Yict. c. 85) of 1857, sect. 7 : "No decree shall hereafter be made for a divorce a mensd et thoro, but in all cases in which a decree for a divorce a mensd et thoro might now be pronounced, the Court may pronounce a decree for judicial separation, which shall have the same force and the same consequences as a divorce a mensd et thoro now has." Sect. 16 : " A sentence of judicial separation (which shall have the effect of a divorce a mensd, et thoro under the existing law and such other legal effect as herein mentioned) may be obtained, either by the husband or the wife, on the ground of adultery, or cruelty, or desertion without cause for two years and upwards." " Adultery, or cruelty, or desertion " : As to these, see the notes to sect. 10, ante. JUDICIAL SEPARATION. 151 " May obtain a decree of judicial separation " : 22. (1) Every petition for a decree of judicial separation must Court fee bear a Court fee stamp of Es. 20 (Court Fees Act, 1870, 2nd stam P- Sch., Art. 20), and must state that there is no collusion or connivance between the petitioner and the other party to the marriage, and must be duly verified by the petitioner or some other competent person (sect. 47, post}. (2) If the petitioner is the husband, and the ground of the Claim by suit is the adultery of the wife, damages can be claimed from husband for the alleged adulterer. In such case the petition must be served on the latter, but apparently he need not be made a co-respon- dent, as he must be (except under certain circumstances) in suits for dissolution of marriage (see sect. 34, post}. Unless, how- ever, he is made co-respondent, he cannot be ordered to pay the whole or any part of the costs of the proceedings (sect. 35, post}. (3) Although the petition only prays for a dissolution of mar- Decree of riage, it is competent to the Court to grant a decree for judicial judicial sepa- separation if the facts proved entitle the petitioner to the latter f or dissolution and not to the former relief (Smith v. Smith, 1 S. & T. 359 ; 28 of marriage. L. J., P. & M. 27 ; Bromfidd v. Bromfield, 41 L. J., P. & M. 17; Duplanyv. Duplany, (1892) P. 53). And the Court will, at the hearing, if the petitioner so prays, make a decree of judicial separation instead of a decree nisi for dissolution of marriage, although the petition prays for a dis- solution and the facts proved warrant a decree for dissolution, and although the respondent objects to the alteration of the prayer (My cock v. My code, 39 L. J., P. & M. 56; Dent v. Dent, 4 S. & T. 105 ; 34 L. J., P. & M. 118). (4) Inasmuch as a petitioner for restitution of conjugal rights At prayer of can fail to obtain a decree only on some ground which would be a respondent in ground for judicial separation or for nullity of marriage, the re- res tit u tion of spondent in a suit for restitution of conjugal rights is entitled to conjugal add a prayer to his or her answer to such suit for a decree of j udicial n gnts. separation or for nullity of marriage, and, on the failure of the peti- tioner to obtain a decree for restitution, the Court may grant the respondent a decree for judicial separation or for nullity of mar- riage, as the case may be (see sect. 33, post , and cf . Meara v. Meara, 13 W. E. (Eng.) 50; EusseE v. Russell, (1895) P. 315 C. A.). (5) Sect. 5 of the Matrimonial Causes Act, 1884 (47 & 48 Yict. c. 68), provides that a respondent in a suit for restitution of conjugal rights, who fails to comply with a decree passed against him or her, is to be deemed to be guilty of desertion without reasonable cause sufficient to justify a decree for judicial separa- 152 THE INDIAN DIVORCE ACT. 22. Respondent molesting petitioner after decree. tion being passed against him or her. But in India a refusal to obey a decree for restitution of conjugal rights, though it might render the respondent liable to attachment for contempt, does not constitute per se such desertion as would be a ground for judicial separation. (6) If, after one of the parties has obtained a decree for judicial separation, the other party insists on molesting the decree-holder, the Court has no jurisdiction to attach him or her for contempt (Smith v. Smith, 59 L. J., P. & M. 15). petition. Application 23, Application for judicial separation on any one made by of the grounds aforesaid may be made by either husband or wife by petition to the District Court or the High Court ; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly. Matrimonial Causes Act (20 & 21 Viet. c. 85), s. 17, as amended by Matrimonial Causes Act, 1858 (21 & 22 Viet. c. 108), s. 19: "Application for restitution of conjugal rights, or for judicial separation on any one of the grounds aforesaid, may be made by either husband or wife by petition to the Court ; and the Court, on being satisfied of the truth of the allegations therein contained, and that there is no legal ground why the same should not be granted, may decree such restitution of conjugal rights or judicial separation accordingly, and, where the application is by the wife, may make any order for alimony which shall be deemed just." " Petition to the District Court " : In cases of judicial separation, the decree of the district judge does not require to be confirmed by the High Court. "Legal ground.' " No legal ground why the application should not be granted " : The Act does not expressly define the legal grounds which justify the Court in refusing to grant a decree to a petitioner for judicial separation. It is, however, clear that condonation of the offence charged, and collusion or connivance between the parties, will act as an absolute bar to relief. But it is scarcely necessary to observe that suits for judicial separation must, JUDICIAL SEPARATION. 153 from the nature of things, be generally untainted "with either 23. collusion or connivance between the parties. As regards the discretionary bars to relief, it may be stated that, as a general rule, the Court will not grant a decree for judicial separation in a case where, if the suit had been for dissolution of marriage, it would have refused to grant relief to the petitioner, although the case against the respondent had been duly established (see notes to sect. 14, ante). A petitioner, therefore, will, ordinarily, be refused a decree Discretionary for judicial separation who has been guilty of bars to grant (a) Adultery. Thus where a wife who had herself committed (a) Petitioner adultery sued for a decree of judicial separation on the ground of her husband's cruelty and adultery, both of which were proved, she was refused a decree, notwithstanding that the cruelty of the husband had been very aggravated (Otway v. Otway, 13 P. D. 141; 57 L. J., P. & M. 810. A.; cf. Drummond v. Drummond, 30 L. J., P. & M. 177). And less is required to prove the adultery for this purpose than is required for the purpose of founding a decree for dissolu- tion or judicial separation (Forster v. Forster, 1 Hagg. Cons. 144). But the mere fact that the husband has instituted a suit for dissolution of marriage on the ground of his wife's adultery will not prevent the Court from granting her a decree for judicial separation on the ground of his cruelty (Bancroft v. Bancroft, 4 S. & T. 84; 34 L. J., P. & M. 70). Under certain exceptional circumstances, the Court will grant a decree of judicial separation to a petitioner who has been guilty of adultery (see notes to sect. 14, ante). And, possibly, in cases of judicial separation, condonation of the adultery gives the Court a discretion to grant the relief, notwithstanding the petitioner's adultery (Gooch y. Gooch, (1893) P., at p. 105). (b) Cruelty. Although cruelty on the part of the petitioner (b) Petitioner is ordinarily no bar to a suit for judicial separation on the g u i%" * ground of the respondent's adultery (Tuthill v. Tuthill, 31 L. J., cruelt 3 r ' P. & M. 214), such cruelty will probably disentitle the petitioner to relief if it can be shown to have conduced to the adultery (Lempriere v. Lempriere, L. E., 1 P. 569 ; 37 L. J., P. & M. 78; BoreJiam v. Boreham, L. E., 1 P. 77; 35 L. J., P. & M. 49). And if the ground of the suit for judicial separation is the respondent's desertion, cruelty on the part of the petitioner 154 THE INDIAN DIVORCE ACT. 23. (c) Desertion on part of petitioner. (d) Inexcu- sable delay in suing. which Has caused the withdrawal from cohabitation "will probably act as a bar to relief (Emery v. Emery, 1 Y. & J. 501 ; 6 Price, 336 ; Houliston v. Smyth, 10 Moore, 582 ; 2 C. & P. 222). (c) Desertion without reasonable excuse. Possibly, however, it is only in cases where the desertion amounts to such wilful neglect or misconduct as has conduced to the adultery of the respondent that the petitioner will be disentitled to relief, especially if the petitioner is the wife. Thus it has been held that the fact that the wife has wilfully and without reasonable excuse deserted the husband will not disentitle her to a decree for judicial separation on the ground of the husband's adultery (Duplany v. Duplany, (1892) P. 53; 66 L. T. 267) or cruelty (Rowe v. Howe, 4 S. & T. 162 ; 3-4 L. J., P. & M. 111). Whether, however, a husband who has wilfully and without reasonable excuse deserted his wife would be granted a decree for judicial separation on the ground of her adultery is, at least, questionable. For, " if chastity be the duty of the wife, protection is no less that of the husband. The wife has a right to the comfort and support of the husband's society, the security of his home and name, and the just protection of his presence, so far as his avocations will admit. Whoever falls short in this regard, if not the author of his own misfortune, is not wholly blameless in the issue " (Jeffreys v. Jeffreys and Smith, 3 S. & T. 495 ; 33 L. J., P. & M. 66). The case cited was one for disso- lution of marriage, but the principle of the decision would appear to apply equally to a suit for judicial separation (see especially, Lempriere v. Lempriere and Roebel, 37 L. J., P. & M. 78). (d) Inexcusable delay in suing. Mere delay in instituting a suit for judicial separation is no bar to the granting of relief to the petitioner. It is, however, a material fact for the considera- tion of the Court and requires explanation, for, if unexplained, it may suggest, in the case of adultery, an insensibility on the part of the petitioner to the injury suffered; in the case of cruelty, a lack of any serious apprehension of future violence ; and, in the case of desertion, a callous indifference as to the presence or absence of the respondent. Unexplained delay in suing being thus suggestive of collateral motives, the petitioner will, as a general rule, have only himself or herself to blame if the suit is dismissed on this ground (SmaHwood v. SmaUwood, 2 S. & T. 397; 31 L. J., P. & M. 3; Matthews v. Matthews, 1 S. & T. 499 ; 29 L. J., P. & M. 118; in app., 3 S. & T. 161). JUDICIAL SEPARATION. 155 (e) Wilful neglect or misconduct on the part of the petitioner con- 23. during to the matrimonial offence on the part of the respondent. ", , ,,. If the petitioner has not actually deserted the respondent, but duct of the matrimonial offence on the part of the latter is directly petitioner traceable to the wilful neglect or misconduct of the petitioner, c< 2 1 it is probable that the Court will refuse to grant a decree of judicial separation. If, for instance, the wife, by her own ill- temper, has drawn upon herself ill-treatment from her husband, she cannot reasonably urge his cruelty, unless wholly unjustified by the provocation, as a ground for judicial separation (Best v. Best, 1 Add. 411). And, generally, on this subject, see the notes to sect. 14, ante. (f) Misconduct on part of petitioner falling short of matrimonial (f) Miscon- offence. In a suit for judicial separation on the ground of the 2nd Sch., Art. 20). As regards the practice of the English Court in these matters, see rules of the English Divorce Court, Nos. 124, 125, and 197. The petition (see Form No. XI) must be supported by an affidavit on the part of the wife (Ex parte Hall, 27 L. J., P. & M. 19), and must state facts to satisfy the Court of the fact of the desertion ; it is not enough merely to state that the husband has deserted the wife (Ex parte Sewell, 28 L. J., P. & M. 8). And if the husband's whereabouts are known the petition should be served on him (Matthew v. Matthew, 19 L. T. 662). See also sect. 50, post. PEOTECTION ORDERS. 169 " After such desertion As to "Desertion," generally, see note to sect. 10, ante. "Desertion." The desertion here spoken of need not have been for two years, Not neces- but it must be continuous, and a bond fide offer on the part of 6a ^ C the husband to return and provide for the wife will, even if made at the time when she claims the order, deprive her of her right to it (Cargill v. Cargill, IS. & T. 235). The desertion must have been "without reasonable excuse" (sect. 28). Such excuse need not necessarily be the commission of a matrimonial offence by the wife, but it must be grave and weighty (see cases cited under sect. 10, ante}. The mere fact that the husband makes the wife an allowance does not alter the character of an inexcusable withdrawal from cohabitation on his part (Yeatman v. Yeatman, L. E., 1 P. 489 ; 37 L. J., P. & M. 37). " Property which she may have acquired," &c. : Property acquired by Sect. 21 of the Matrimonial Causes Act, 1857, and sect. 6 of wife. the Matrimonial Causes Act, 1858, speak of property which " she may have acquired or may acquire by her own lawful industry." It has accordingly been held in England that pro- perty acquired by keeping a brothel is not protected (Mason v. Mitchell, 3 H. & C. 528 ; 34 L. Ex. 68). A protection order obtained by a married woman who has Protection been deserted by her husband constitutes her a feme sole in ? ? extends to property respect only of such property as she may have acquired or may acquired after acquire, or of which she may have become or may become desertion. possessed after such desertion ; it has no effect on property which she may have acquired or become possessed of previously to the desertion (Hill v. Cooper, (1893) 2 Q. B. 85; 62 L. J., Q. B. 423). But where a wife is, before such desertion, entitled to choses in Choses in action which are not reduced into possession till after the deser- actlon - tion, such property will be protected by an order under sect. 28 (In re Coward, L. E., 20 Eq. 179 ; 44 L. J., Ch. 384 ; Nicholson v. Drwry Building Co., 7 Ch. D. 48 ; 47 L. J., Ch. 192). The definition of " property " in sect. 3 of the Indian Divorce Act effects the object of sect. 7 of the Matrimonial Causes Act, 1858, which extends the operation of orders of protection to pro- perty which becomes vested in a married woman as executrix, administratrix, or trustee, after the date of the commencement of the desertion. 170 THE INDIAN DIVORCE ACT. Court may grant protec- tion order. 28. The Court, if satisfied of the fact of such deser- tion, and that the same was without reasonable excuse, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and other property from her husband and all creditors and persons claiming under him. Every such order shall state the time at which the desertion commenced, and shall, as regards all persons dealing with the wife in reliance thereon, be conclusive as to such time. For the corresponding provisions of the English statutes, see under sect. 27, ante; sect. 9 of the Matrimonial Causes Act, 1858 (21 & 22 Viet. c. 108), further provides that " every order . . . shall state the time at which the desertion in consequence whereof the order is made commenced ; and the order shall, as regards all persons dealing with such wife in reliance thereon, be conclusive as to the time when such desertion commenced." Sect. 7 of the said Act extends the operation of such orders to property "to which such wife has become or shall become entitled as executrix, administratrix, or trustee, since . . . the commencement of the desertion ; and the death of the testator or intestate shall be deemed to be the time when such wife became entitled as executrix or ad- ministratrix." Sect. 8 of the said Act enacts that an order for protection of earnings or property shall be deemed valid until reversed or discharged, and that no right or remedies prior to reversal or discharge shall be prejudiced by such reversal or discharge, and sect. 10 protects and indemnifies all persons acting on faith of the order without notice of its discharge, reversal or variation. Form of order. " An order" : The order should be in general terms, as the Court has 110 power to decide what title the wife may have to specific property (Exparte Mullineaux, 1 S. & T. 77 ; 27 L. J., P. & M. 19). But the mere fact that such order is limited in its terms will not exclude from its operation property, not therein specified, which falls into her possession after the desertion (cf. In re Whittingham's Trusts, 10 L. T. 368). PROTECTION ORDERS. 29, The husband or any creditor of, or person Discharge or claiming under, him may apply to the Court by which orders, such order was made for the discharge or variation thereof, and the Court, if the desertion has ceased, or if for any other reason it think fit so to do, may discharge or vary the order accordingly. For the corresponding provision of the English statute, see under sect. 27, ante. For the practice of the English Court, see Rule, No. 125, of the Eules of the English Divorce Court. " May apply to the Court " : "Apply to It is only the Court which granted the order that can dis- charge or vary it (cf. Ex parte Sharpe, 43 L. J., M. C. 152). It is open to the husband or creditor, or person claiming Application under the husband, to apply at any time for the discharge of ma y ^ e ^^ G the order of protection (Ex parte Hall, 27 L. J., P. & M. 19). Nor need the application be made during the lifetime of the wife. Therefore, a claim to pronounce against the validity of the will of a married woman who had obtained a protection order, and a counter-claim to discharge the said order, may be included in the same action (Madge v. Adams, 6 P. D. 54 ; 50 L. J., P. & M. 49). 30. If the husband or any creditor of, or person Liability of claiming under, the husband seizes or continues to hold sizing his any property of the wife after notice of any such order, Wlf |;' s v*~ he shall be liable, at the suit of the wife (which she is notice of order. hereby empowered to bring), to return or deliver to her the specific property, and also to pay her a sum equal to double its value. For the corresponding provision in the English statute, see under sect. 27, ante. 31. So long as any such order of protection remains Wife's legal in force, the wife shall be and be deemed to have been, duringcon- during such desertion of her, in the like position in all 1106 of 172 THE INDIAN DIVORCE ACT. 31. respects, with regard to property and contracts and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation. For the corresponding provision in the English statute, see under sect. 27, ante. Protection order, effect of. Continuing liability of husband. "So long as any such order of protection remains in force " : A protection order has a retrospective effect and dates back to the commencement of the desertion. Therefore, where a mar- ried woman, after being deserted by her husband, acquired certain property by her own exertions, which she disposed of by will, and, subsequently to the making of the will, obtained an order of protection, it was held that the will was a valid instru- ment to pass the said property (In re the goods of Elliott, L. E., 2 P. 274 ; 40 L. J., P. & M. 76). A married woman, who has obtained an order of protection, can maintain an action for libel in her own name (Ramsden v. Brearley, L. E., 10 Q. B. 147 ; 44 L. J., Q. B. 46). And she can maintain an action in respect of her earnings, although she has been living in adultery ever since the desertion ( Thomas v. Head, 2 F. & F. 88). But, apparently, an order of protection of a married woman's property will not enable her to maintain an action for injuries to such property which was commenced before the date of the order (Midland Rail. Co. v. Pye, 10 0. B., N. S. 179). A woman, who has obtained an order of protection, is en- titled to payment of a fund in Court representing a legacy bequeathed to her after the desertion but previous to the order (In re Kingsley, 26 Beav. 84 ; cf. also Cooke v. Fuller, 26 Beav. 99). Continuing liability of husband. It is to be noticed that, whereas, in the case of a judicial separation, the husband is not liable "in respect of any contract, act, or costs entered into, done, omitted or incurred" by the wife during such separation, unless he has been ordered to pay her alimony and has failed to do so, when he is liable for " necessaries " supplied to her use (sect. 25), the husband of a woman who has obtained a protec- tion order is not thereby freed from liability to contribute towards her maintenance (Oxford Guardians v. Barton, 33 L. T. RESTITUTION OF CONJUGAL RIGHTS. 173 375). It appears, however, that a wife, who has obtained such 31. order, has no longer any authority to pledge her husband's ~ credit (Hakeivell v. Hakewell, 30 L. J., P. & M. 255), but she does not thereby deprive herself of her right to alimony pendente lite in a suit subsequently instituted by her for dissolution of marriage (ibid., and sect. 36, post). Death of wife intestate. Where a wife, who had obtained an Death of order of protection, died intestate during her husband's lifetime, wife intestate - the Court granted letters of administration limited to such pro- perty as she had acquired or become possessed of since the desertion, without specifying of what that property consisted, to one of her next-of-kin and not to her husband (In re goods of Worman, 1 S. & T. 513 ; 29 L. J., P. & M. 164 ; cf. In re goods of Weir, 2 S. & T. 451 ; 31 L. J., P. & M. 88). VII. Restitution of Conjugal Rights. 32. When either the husband or the wife has, Petition for without reasonable excuse, withdrawn from the society conjugal* 11 of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitu- tion of conjugal rights accordingly. For the corresponding provision in the English statute, see under sect. 23, ante. The Matrimonial Causes Act, 1884 (47 & 48 Viet. c. 68), sect. 5, further provides that ' ' If the respondent shall fail to comply with a decree of the Court for restitution of conjugal rights, such respondent shall thereupon be deemed to have been guilty of deser- tion without reasonable cause, and a suit for judicial separa- tion may forthwith be instituted, and a sentence of judicial separation may be pronounced although the period of two years may not have elapsed since the failure to comply with the decree for restitution of conjugal rights ; and when any husband who has been guilty of desertion by failure on his part to comply with a decree for restitution of conjugal 174 32. Petition. Court fee stamp. Written demand for cohabitation. THE INDIAN DIVORCE ACT. rights has also been guilty of adultery, the wife may forth- with present a petition for dissolution of her marriage, and the Court may pronounce a decree nisi for the dissolution of the marriage on the grounds of adultery coupled with desertion. Such decree nisi shall not he made absolute until after the expiration of six calendar months from the pronouncing thereof, unless the Court shall fix a shorter time." By sect. 5 of the said Act the English Court has power "At any time before final decree on any application for restitution of conjugal rights, or after final decree, if the respondent shall fail to comply therewith, upon application for that purpose, " to " make from time to time all such orders and provisions with respect to the custody, maintenance, and education of the children of the petitioner and respondent as might have been made by interim orders during the pendency of a trial for judicial separation between the same parties." See also Rules of the English Divorce Court, Nos. 175 and 176. " May apply by petition " : Every petition for restitution of conjugal rights must bear a Court fee stamp of Es. 20 (Court Fees Act, 1870, 2nd Sch., Art. 20), must be duly verified by the petitioner or some other competent person (sect. 47, post], and must be served on the respondent, unless the Court dispenses with such service (sect. 50, post], According to the practice of the English Court it is also neces- sary that the petition should be accompanied by an affidavit made by the petitioner verifying the facts of which he or she has personal cognizance and deposing as to belief in the truth of the other facts alleged in the petition (rule 2). Such affidavit must further state sufficient facts to satisfy one of the registrars that a written demand for cohabitation and restitution of con- jugal rights has been made by the petitioner upon the party to be cited, and that after a reasonable opportunity of compliance therewith such cohabitation and restitution of conjugal rights have been withheld (rule 175). It is probable that the Courts of this country will adopt these rules. It may, therefore, be pointed out that such written demand need not be made by the petitioner, but may be made by a solicitor on his or her behalf. No particular form is necessary, but the demand must be of a conciliatory character. Where, therefore, without any previous friendly communication between the parties, the wife's solicitor wrote demanding restitution of conjugal rights on her behalf, and threatened legal proceedings in default, it RESTITUTION OF CONJUGAL RIGHTS. 175 was held that such a letter did not sufficiently comply with the 32. rule (Field v. Field, 14 P. D. 26; 58 L. J., P. & M. 21 ; cf. " Mason v. Mason, 61 L. T. 304; Smith v. Smith, 15 P. D. 47; 59 L. J., P. & M. 9). If the whereabouts of the respondent are not known and cannot be discovered, the demand may be served on his or her solicitor (Macarthur v. Macarthur, 58 L. J., P. & M. 70). " Restitution of conjugal rights " : In a suit for restitution of conjugal rights, the Court has no Marriage jurisdiction to make a decree in the petitioner's favour until the mus t be marriage has been duly proved, even though the respondent may have filed an answer not taking issue on the marriage (Scott v. Scott, 4 S. & T. 113; 34 L. J., P. & M. 23; as to proof of marriage, see Appendix (A.), " Proof of Marriage "). But in an undefended suit the Court will not make a decree merely upon proof of the marriage ; evidence must be given of the other facts, e.g., the withdrawal from cohabitation without reasonable excuse (Pearson v. Pearson, 33 L. J., P. & M. 156). Alimony pendente lite. Alimony pending suit. In a suit for restitution of conjugal rights, whether instituted by the husband or the wife, the wife is, as a general rule, entitled to alimony pending the suit (see sect. 36, and notes thereto). " No legal ground " : " Legal ground." As to this, see sect. 33, post, and notes thereto. Under rule 176 of the English Divorce Court Rules the respondent may, at any time after commencement of the pro- ceedings, apply for a stay of proceedings by reason that he or she is willing to resume or return to cohabitation. "May decree": In a defended case, once the marriage has been duly proved, Motives of the petitioner will be entitled to a decree unless the respondent P etl ti ner can establish a legal defence to the petition. The motives of the petitioner are quite immaterial, and the Court has no dis- cretion to inquire into his or her sincerity in bringing the suit (Scott v. Scott, 4 S. & T. 113 ; 34 L. J., P. & M. 23). And, as a matter of fact, suits for restitution of conjugal rights are but rarely brought for the purpose of recovering the society of the 176 THE INDIAN DIVORCE ACT. 32. Allowance by husband not sufficient compliance with decree. respondent. "I must further observe," remarked a learned judge of very great experience, "that so far are suits for restitution of conjugal rights from being in truth or in fact what theoretically they purport to be, proceedings for the purpose of insisting on the fulfilment of the obligation of married persons to live together, I have never known an instance in which it has appeared that the suit was instituted for any other purpose than to enforce a money demand" ( per Hannen, P., Marshall v. Marshall, 5 P. D. at p. 23). A husband who has been served with a decree in a suit for restitution of conjugal rights, ordering him to take his wife back, is bound to take the initiative by inviting her to return (Alexander v. Alexander, 2 S. & T. 385; 30 L. J., P. & M. 73). And it is no sufficient compliance on his part with such decree to merely supply his wife with a suitable establishment and sufficient income (Weldon v. Weldon, 9 P. D. 52; 53 L. J., P. & M. 9). Form of decree. Satisfaction of decree. Form of Decree for restitution of Conjugal Rights. If the respondent is the husband, the proper form of decree is that the husband ' ' do take the petitioner home and receive her as his wife, and render her conjugal rights" (see Weldon v. Weldon, 9 P. D. at p. 53). If the respondent is the wife, the proper form is simply that the wife do return " and live with the husband, and render him conjugal rights." The Court has no power to direct that the wife be bodily handed over to her husband (Mtla Ram v. TJianooram, 9 W. E. 552 ; Koolur Khansama v. Jan Khansama, 8 W. E. 467 ; Toofeah v. Jussundu, 2 Agra, 337). Satisfaction of decree. A decree for restitution of conjugal rights must necessarily be limited as to time, and it is satisfied and incapable of further execution when once the respondent has complied with it with the bond fide intention of resuming cohabitation. The Court "cannot direct permanent cohabitation without regard to the possibilities of occurrences which might render it dangerous," or without regard to the possibilities of occurrences which might justify the respondent in refusing further cohabitation. But if, after duly complying with and satisfying the decree, the respondent refuses to render conjugal rights, and again leaves the petitioner's society, a fresh cause RESTITUTION OF CONJUGAL RIGHTS. 177 of action will arise, unless the respondent can prove a reasonable 32. excuse for such, subsequent withdrawal (cf. Keshar Lai v. Bai Parvati, I. L. B,., xviii Bomb. 327). In the event, therefore, of such subsequent withdrawal by Subsequent the respondent from the petitioner's society, the proper course withdrawa for the petitioner is not to apply for execution of the former tation. decree (which has been duly satisfied), but to present a fresh petition for restitution of conjugal rights. But a decree is not satisfied by a merely colourable compliance with its terms, with the full intention of breaking off cohabitation at the very first opportunity. Enforcement of decree for restitution of conjugal rights. Enforcement " When the party against whom a decree .... for restitution ^ decree, of conjugal rights .... has had an opportunity of obeying the decree, .... and has wilfully failed to obey it, the decree may be enforced by his" (or her) "imprisonment, or by the attachment of his" (or her) " property, or by both" (Civil Proce- dure Code, 1882, s. 260, q. v.}. The husband cannot take his wife by force and restrain her of her liberty until she is willing to render him conjugal rights (Beg. v. Jackson, (1891) 1 Q. B. 671 ; 60 L. J., Q. B. 346). As to the effect of not complying with a decree for restitution of conjugal rights in England, see sect. 5 of the Matrimonial Causes Act, 1884 (ante, p. 173). Under that statute the English Court has also power to order the respondent, who fails to comply with such decree, to make a settlement on the petitioner (Theobald v. Theobald, 15 P. D. 26 ; 59 L. J., P. & M. 21). And this, too, even if the respondent is the wife, provided she possesses separate property of her own (Swift v. Swift, 15 P. D. 118; 59 L. J., P. & M. 61). But the English Court has no longer the power to enforce such decree by attachment (sect. 2 of the said statute). 33. Nothing shall be pleaded in answer to a petition Answer to for restitution of conjugal rights which would not be a ground for a suit for judicial separation or for a decree of nullity of marriage. " Nothing shall be pleaded in answer " : Answer to This was the general rule of the old Ecclesiastical Courts (Holmes v. Holmes, 2 Lee 116; Barleev.Barlee, 1 Add. 305), and R. N 178 THE INDIAN DIVORCE ACT. 33. is, with certain exceptions, the rule of the English Court of Divorce of the present day (Burroughs v. Burroughs, 2 S. & T. 303 ; 30 L. J., P. & M. 186 ; Rickdts v. Efcketts, 35 L. J., P. & M. 52 ; Yeatman v. Yeatman, L. E., 1 P. 489). Sect. 33 Despite the explicitness of its terms, sect. 33 is, it is submitted, subject to subject to sect. 32, and presupposes that the petitioner has duly fulfilled the conditions therein laid down, namely, that it has been duly proved to the satisfaction of the Court (1) that the petitioner is at the time of suit the husband or wife of the respondent ; in other words, that there is between the petitioner and respondent a valid and subsisting marriage tie ; and (2) that the respondent has withdrawn from the petitioner's society "without reasonable excuse." That the respondent is competent to traverse each of these allegations can scarcely admit of doubt. For instance, it must be open to the respondent to dispute the factum of the marriage to deny that the parties were ever legally married, or to prove that, though once legally married, they have since been divorced by a Court of competent jurisdiction. And it would seem to be equally clear that he or she can put the petitioner to the proof that (a) a withdrawal from petitioner's society has actually taken place, and (b) that such withdrawal, if proved, was without reasonable excuse. Even if the respondent is debarred from pleading, in answer to the petition and as an excuse for the withdrawal, anything which would not be a ground for judicial separation or for a decree of nullity of mar- riage, there is nothing, it seems, to prevent him or her from cross-examining the petitioner as to the matters which led to such withdrawal, or from giving evidence himself or herself on the point. Whether or not, when once a valid subsisting mar- riage has been duly proved and the respondent's withdrawal has also been proved or admitted, the Court will regard anything short of a distinct matrimonial offence on the part of the peti- tioner as a sufficient " legal ground" why the application should not be granted, is a question which awaits solution. In England,* under peculiar circumstances, which do not exist in India, the Court will refuse to grant restitution of con- jugal rights to a petitioner whose " conduct has led to desertion by the respondent and has amounted to sufficient cause to dis- entitle the petitioner to maintain a suit for judicial separation * I. e. to say that a respondent who fails to comply with a decree of restitution of conjugal rights is deemed to have been guilty of such desertion as will entitle the petitioner to a decree of judicial separation. RESTITUTION OF CONJUGAL EIGHTS. 179 on the ground of desertion" (Goroll Barnes, J"., Oldroyd v. 33. Oldroyd, (1896) P. 175). Accordingly, though it does not amount to legal cruelty for a wife to bring, and persist in making, the most infamous charges against her husband, well knowing the same to be absolutely untrue, the Court will allow the husband, in a suit by such wife for restitution of conjugal rights, to plead such conduct on her part as a bar to her suit (*Rmsell v. Russell, (1895) P. (A. 0.) 315; 64 L. J., P. & M. 105). And a husband has also been allowed to plead by way of answer that the wife has made his home uncomfortable ; that she has systematically aggravated him in the hope that he would retaliate with some act of violence which would entitle her to a judicial separation, and that they had separated by mutual consent (Woodsey v. Woodsey, 31 L. T. 647 ; cf. Stace v. Stace, 37 L. J., P. & M. 51). But under English law (Matrimonial Causes Act, 1884, s. 5), a respondent who fails to comply with a decree for restitution is at once guilty of such desertion as will enable the other party to obtain a judicial separation by reason thereof. Inasmuch, therefore, as a petitioner whose conduct would have disentitled him or her to a decree of judicial separation, cannot obtain the latter relief directly, the Court bases its refusal to grant him or her a decree for restitution on the ground that it will not grant relief indirectly which it would not grant directly. At the same time it does not seem to be in accordance with the principles of ordinary justice to compel a respondent, whose conduct in with- drawing from the petitioner's society the Court admits to be only natural and reasonable, to resume a cohabitation which is likely to be fraught with the greatest misery to a perfectly inno- cent party. As remarked by Lord Herschell, C., in a recent Scotch case in the House of Lords, " it is certain that a spouse may, without having committed an offence which would justify a decree of separation, have so acted as to deserve the reprobation of all right-minded members of the community. Take the case of a husband who has heaped insults upon his wife, but has just stopped short at that which the law regards as scevitia or cruelty; can he, when his own misconduct has led his wife to separate herself from him, come into Court, and, avowing his misdeeds, * The decision of the Court of Appeal has very recently been up- held by a majority of the House of Lords (Lords Herschell, "Watson, Macnaghten, Shand and Davey ; Lords Halsbury, Hobhouse, Ash- bourne and Morris dissentientibus). N2 180 THE INDIAN DIVORCE ACT. 33. Covenant not to sue for restitution of conjugal rights. insist that it is bound to give him a decree of adherence ? . . . Might not the Court refuse its aid to one who has so acted and regard his conduct as a bar to his claim to relief ? " (Mackenzie Y. Mackenzie, (1895) A. C. at p. 389). Possibly, therefore, the Courts of this country will hold that it is a condition precedent to the grant of relief that the peti- tioner's own conduct shall have been, not only free from the commission of any distinct matrimonial offence, but also of such a character that the respondent was in nowise reasonably justified in withdrawing from the society of the other. If so, then it will be open to the respondent to prove, either by the cross- examination of the petitioner or by his or her own evidence, that the withdrawal was with reasonable excuse, and, if the Court is satisfied that there was a reasonable excuse, it will refuse to grant a decree to the petitioner. In England it is also competent to the respondent to plead in bar to the petitioner's suit (b) An agreement by the petitioner, for valuable consideration, not to sue for restitution of conjugal rights. Although an agreement between husband and wife which contemplates a future separa- tion between them is contrary to public policy and illegal ( West- meathv. Westmeath, 1 Dow. & Clarke, 519; Cocksedgey. Cocksedge, 13 L. J., Ch. 384; Merryweather v. Jones, 10 L. T. 62), an agree- ment providing for the immediate separation of husband and wife is perfectly valid and binding ( Wilson v. Wilson, 1 H. L. (Sc.) 538 ; Gibbsv. Harding, L. B., 8 Eq. 490 ; 38 L. J., Ch. 604 ; Scholey v. Goodman, 8 Moore, 350). But though a deed of separation of the latter kind is valid, it is no bar or answer to a suit for restitution of conjugal rights, unless it contains an express covenant, for valuable consideration, on the part of the petitioner not to sue for the same (Sparing v. Spering, 3 S. & T. 211 ; 32 L. J., P. & M. 116; Moore v. Moore, 12 P. D. 193; 56 L. J., P. & M. 104). Previous to the Judicature Act of 1873 a covenant, for valuable consideration, not to sue for restitution of conjugal rights, was not regarded by the Divorce Court as a bar to such suit when subsequently instituted (Hunt v. Hunt, 32 L. J., P. & M. 168; Anquez v. Anquez, L. B., 1 P. 176 ; 35 L. J., P. & M. 93). But in such a case the respondent could apply to the Court of Chancery for a perpetual injunction to the extent of restraining the pro- ceedings in the Divorce Court (Flowers v. Flowers, 25 L. T. 902). Since the Judicature Act above referred to, the Divorce Court is part of the High Court of Justice, and consequently no cause RESTITUTION OF CONJUGAL RIGHTS. or proceeding pending in it can be restrained by prohibition or 8 "" injunction. Inasmuch, however, as "matter of equity on which an injunction against the prosecution of any cause or proceeding might have been obtained if this Act had not been passed, either unconditionally or on any terms or conditions, may be relied on by way of defence (Judicature Act, 1873, s. 24), the respondent may now plead, by way of answer to a suit for restitution of conjugal rights, a covenant for valuable consideration by the petitioner not to sue for the same, and the plea, if proved, is a complete bar to the suit (Marshall v. Marshall, 5 P. D. 19 ; 48 L. J., P. & M. 49; Clark v. Clark, 10 P. D. 188; 54 L. J., P. & M. 57). But, although mere trifling breaches by the respondent of the covenants contained in the deed will not enable the petitioner to sue in spite of the covenant not to sue (Besant v. Wood, 12 Ch. D. 605), a total failure on the part of the respondent to carry out his or her part of the agreement will restore the petitioner to the same position which he or she would have been in, and to the rights which he or she would have had, if no such deed of separation had been executed ( Tress v. Tress, 12 P. D. 128; 56 L. J., P. & M. 93; but, contra, Parkinson v. Parkinson, L. E., 2 P. 25; 39 L. J., P. & M. 14). Nor will a deed of separation, containing a covenant not to sue, act as a bar to a suit subsequently instituted, if such deed has never been acted upon by the parties (Cock v. Cock, 3 S. & T. 514 ; 33 L. J., P. & M. 57), or if it has been obtained by im- proper means or without reasonable excuse (Dagg v. Dagg and Speke, 7 P. D. 17 ; 51 L. J., P. & M. 19). Nor will a covenant not to sue in respect of previous misconduct prevent the cove- nantor from relying upon such misconduct as a bar to relief in a suit subsequently instituted by the covenantee((7oocAv. Gooch, (1893) P. 99). A deed of separation is completely put an end to by the reconciliation of the parties and resumption of cohabita- tion (Scholey v. Goodman, 8 Moore, 350 ; Nicol v. Nicol, 31 Ch. D. 524; 55 L. J., Ch. 437). As regards suits for restitution of conjugal rights, instituted under the provisions of the Indian Divorce Act, a covenant not to sue cannot be pleaded by the respondent under sect. 33, as it is, of course, in no sense a ground for judicial separation. It is, also, to be remarked that sect. 32 does not speak of "desertion," but of a withdrawal without reasonable excuse from the society of the other party. Consequently, although the petitioner may have expressly agreed to live separate and not to sue for restitution of conjugal rights, such consent cannot per se make a withdrawal 182 THE INDIAN DIVORCE ACT. 33. Poverty of husband petitioner. Change of religion. reasonable which, would otherwise be unreasonable. In other words, in suits for restitution of conjugal rights there is no question of " an abandonment against the wishes of the party complaining of it " : there is, on the other hand, a loss of the other party's society, and though at one time the petitioner may have con- sented to be deprived of that society, that is no reason why he or she should thereafter and for ever be debarred from seeking a resumption of married life. The Courts of this country cannot, therefore, under the Indian Divorce Act, refuse a petitioner a decree for restitution of conjugal rights simply on the ground that he or she may have expressly covenanted not to sue for such restitution. But, although the respondent cannot plead such covenant as an answer to the suit, it may be that, when once such covenant is brought to its knowledge, the Court, as a Court of Equity, will refuse to permit a suit, brought in violation of a perfectly valid agreement, to proceed. For, as remarked by Mr. Justice Hannen, " it is in the highest degree desirable, for the preservation of the peace and reputation of families, that such agreements should be encouraged rather than that the parties should be forced to expose their matrimonial differences in a Court of Justice. And I must further observe that so far are suits for restitution from being in truth, and in fact, what theoretically they purport to be, proceedings for the purpose of insisting on the fulfilment of the obligation of married persons to live together, I have never known an instance in which it has appeared that the suit ivas instituted for any other purpose than to enforce a money demand" (Marshall y. Marshall, 5 P. D. at p. 23). (c) Poverty of the husband- petitioner. It may be that a husband who sues in forma pauperis for restitution of conjugal rights, and alleges in his petition that he has no means or home of his own, will be estopped from prosecuting his suit, especially if the wife is also not possessed of property (Meara v. Meara, 13 W. K. (Eng.) 50). (d) If a "marriage " contracted by a Hindu or Muhammadan, who subsequently becomes a convert to Christianity, is to be recognized as a marriage for the purposes of the Indian Divorce Act, provided only that the petitioner professes Christianity at the time of presenting the petition (see as to this, ante, pp. 4, 5), a difficulty of the following kind may arise : a Hindu marries a Hindu woman, and subsequently becomes a convert to Chris- tianity ; his wife remains a Hindu and repudiates her husband on his conversion. If, subsequently, the husband applies for RESTITUTION OF CONJUGAL EIGHTS. 183 restitution of conjugal rights, the wife, apparently, cannot 33. plead his conversion in answer to his suit. And yet, as pointed out in a case decided previously to the Indian Divorce Act (Mucho v. Arzom Sahoo, 5 W. E. 535), a plea that "the husband by change of religion has placed himself in that position that she cannot live with him without doing extreme violence to her religious opinions and the social feelings in which she has been brought up, and in the enjoyment of which she married," would (apart from sect. 33 of the Indian Divorce Act) be a good plea in answer. (e) Delay in suing. The Court will not dismiss a petition for Delay in restitution of conjugal rights solely on account of the delay in su^gf- instituting the suit (Beauclerk v. Beauclerk, 71 L. T. 376). And, of course, it is not open to the respondent to plead such delay in bar. (f) Insanity of petitioner. The insanity of the petitioner, Insanity of supervening after marriage, is no ground for a decree of nullity petitioner, of marriage, or, per se, for a decree of judicial separation; it cannot, therefore, be pleaded in answer to a suit for restitution of conjugal rights (Hayward v. Hayiuard, 1 S. & T. 81). If, however, the insanity is such as to render cohabitation unsafe, it can scarcely be contended that the respondent's with- drawal from the society of a dangerous lunatic was ' ' without reasonable excuse " within the meaning of sect. 32. It would, therefore, be strange if the respondent were to be debarred from proving the dangerous character of the petitioner's insanity as a reason why the application for restitution should not be granted (cf. Radford v. JRadford, 20 L. T. 279). (g) Lis pendem. A husband or wife who has withdrawn Suit for from the society of the other party in order to institute a suit restitution of for dissolution or nullity of marriage or judicial separation riSIts'pend- cannot be said to have acted "without reasonable excuse," ing suit by provided that such suit has been duly instituted and is bond fide, respondent ^ L J/L -J.T- 3 i -u i i i f i r dissolution In such a case the withdrawal is absolutely necessary, for or nu iiity. continued cohabitation would amount either to condonation, or, in the case of a suit for nullity, a confirmation of the marriage, if such marriage were merely voidable, or a continuance in incest or fornication if such alleged marriage were absolutely void ab initio. If, therefore, a suit for restitution of conjugal rights is 184 THE INDIAN DIVORCE ACT. 33. Right to begin. instituted pending a suit by the other party for dissolution of marriage (whether instituted in the same or another Court), or for nullity of marriage or judicial separation, instituted in another Court, the suit for restitution should be stayed pending the determination of the respondent's suit (but see Thornton v. Thornton, I. L. E., x Bomb. 422). If, however, the suit for restitution of conjugal rights and the suit for nullity of marriage or for judicial separation are both instituted in the same Court, they can be consolidated and heard together. It is, however, only in suits for nullity of marriage or judicial separation that the respondent can, in answer to such suit, pray for restitution of conjugal rights (see Lopez v. Lopez, I. L. E., xii Calc. 706 ; and see note (4) to sect. 22, ante}. It is not permissible to do so in suits for dissolution of marriage (see sect. 15, ante}. It follows that a respondent in a suit for restitution of conjugal rights can, in the answer, pray for judicial separation or nullity of marriage, as the case may be, but not for a dissolution of marriage. It may be here pointed out that, as a general rule, the peti- tioner in a suit for restitution of conjugal rights has the right to begin, although the substantive issue may be upon the respondent (Burroughs v. Burroughs, 2 S. & T. 544 ; 31 L. J., P. & M. 56). What may be pleaded in answer to suit for resti- tution of con- jugal rights. Petitioner's adultery. " Ground for a suit for judicial separation " : The grounds for a suit for judicial separation are (1) adultery, or (2) cruelty, or (3) desertion without reasonable excuse for two years or upwards. The respondent in a suit for restitution of conjugal rights may, therefore, plead in answer to such suit (1.) The petitioner's adultery. The general rule is that a husband or wife who has been guilty of adultery is not entitled to a decree for restitution of conjugal rights (Hope v. Hope, 27 L. J., P. &M. 43; Green v. Green, 21 L. T. 401). But nothing short of actual adultery will suffice to disentitle the petitioner. So, a wife's suit for restitution will not be dismissed merely on the ground of her impropriety of behaviour not amounting to a matrimonial offence, nor on the ground of her wilful refusal to permit conjugal intercourse (JRippingall v. Rippingall, 24 W. E. (Eng.) 967). RESTITUTION OF CONJUGAL RIGHTS. 185 Accordingly, a plea by the respondent that the petitioner had 33. given him cause for a strong and reasonable suspicion that she had committed adultery (Burroughs v. Burroughs, 2 S. & T. 303 ; 30 L. J., P. & M. 186), or that he had been induced to marry her on a false representation that she was pregnant by him (Green v. Green, 21 L. T. 401), is bad and should be struck out. It has been held that if the respondent has connived at or condoned the petitioner's adultery, it cannot be pleaded in bar of the suit (Moore v. Moore, 3 Moore P. C. 86). But as to this see infra, Compensatio criminis. Adultery committed by the petitioner under a bond fide belief, reasonably entertained, that the respondent was dead, is probably no bar to a suit for restitution of conjugal rights (cf. Freegard v. Freegard, 8 P. D. 186 ; 52 L. J., P. & M. 100 ; Potter v. Potter, 67 L. T. 721). Nor can a husband or wife, whose own suit for dissolution of marriage or judicial separation on the ground of the other party's adultery has already been dismissed, rely upon these identical charges as an answer to a suit subsequently instituted by such other party for restitution of conjugal rights (Sopwith v. Sopwith, 2 S. & T. 160). Compensatio criminis. Can a husband or wife who has him- Compensatio self or herself been guilty of adultery sue for restitution of cnmims - conjugal rights as against a respondent who has also been guilty of the same offence ? According to the canon law and the earlier decisions of the Ecclesiastical Court, mutud compensatione ambo adulteria abolentur, that is to say, that the petitioner can set off the respondent's adultery as against his or her own, and there- after claim restitution of conjugal rights as though wholly innocent of any matrimonial offence (Eldred v. Eldred, 2 Oust. 381; Forsttr v. Forster, 1 Hagg. Cons. 148; Procter v. Procter, 2 Hagg. Cons. 292). And, more recently, the Irish Court of Delegates granted a decree of restitution in a case where both petitioner and respondent had been equally guilty of adultery (Seaver v. Seaver, 2 S. & T. 665; cf. per Lopes, L. J., Russell v. Russell, (1895) P. 315 ; 64 L. J., P. & M. 105). On the other hand, the judge ordinary (Sir Cresswell Cresswell), in Hope v. Hope, stated that this doctrine of compensatio criminis is no part of the law of England, and held that, where both parties had been guilty of adultery, a decree for restitution of conjugal rights could not be granted at the suit of either of them. 185 THE INDIAN DIVORCE ACT. 33. Petitioner's cruelty. Desertion by petitioner. The modern tendency is undoubtedly in favour of the principle that relief in matrimonial cases should only be ''granted to a petitioner who comes into Court with a pure character and clean hands (see Otway v. Otway, 13 P. D. 141). As Cotton, L. J., remarked in the case last quoted, " a wife having been guilty of adultery has put herself in such a position that she cannot be considered as an innocent party in any proceedings which might have been taken in the old Ecclesiastical Courts, or which might now be taken in the Court of Divorce ; and, therefore, on that ground, she is not in a position to come to that Court to give her any relief as to any matrimonial offence which the husband may have committed, or to put it on the ground of compensation for a crime of the same nature." This being the general rule, it is doubtful how far the doc- trine laid down in Moore v. Moore (supra}, that adultery which has been connived at or condoned cannot be pleaded by the respondent in bar of a suit for restitution, will be accepted at the present day. That a respondent who has connived at or condoned the petitioner's adultery is not justified in subse- quently pleading that offence as an answer to a suit for resump- tion of conjugal life may be admitted. But in granting relief the Court of Divorce regards the petitioner's conduct quite as carefully as that of the respondent, and is slow to relieve those who come to it with a past character which is not pure and blameless. (2.) Petitioner's cruelty. As to what constitutes such cruelty as would be a ground for judicial separation, see notes to sect. 10, ante. "Whether conduct on the part of the petitioner which, though falling short of legal cruelty, renders conjugal life almost impossible, will disentitle the petitioner to relief, is, at least, doubtful (see ante, p. 179). (3.) Desertion by petitioner for statutory period. As to what constitutes desertion in the legal sense, see notes to sect. 10, ante. It is to be remembered that it is only when the respondent has without reasonable excuse withdrawn from the society of the petitioner that the petitioner is entitled to sue for restitution of conjugal rights. If, however, the petitioner, though originally the party who separated from the other, makes a bond fide offer to resume cohabitation, and such offer is refused, the suit for DAMAGES AND COSTS. 187 restitution will not be barred unless the petitioner has ' ' deserted " 33 . the respondent for two years or upwards. " Ground for a decree of nullity of marriage " : (4.) It is obvious that, if the alleged marriage is absolutely null and void, no decree for restitution of conjugal rights in respect of it can be made. If it is merely voidable at the option of the respondent, the latter can elect to repudiate it when sued by the petitioner for restitution of conjugal rights. A respon- dent cannot plead his or her own impotency as a bar to a suit for restitution of conjugal rights. But it is only on one or other of the grounds mentioned in sect. 19 that a decree of nullity can be made, and, therefore, it is only one or other of such grounds that can be pleaded by way of answer to a suit for restitution of conjugal rights. Mere informality of marriage is not such a ground (Gasper v. Gonsalvez, 13 B. L. E. 109). But, before any decree of restitution can be made, it is essential (quite apart from the respondent's pleas) that a valid subsisting marriage between the petitioner and respondent should be proved (Scott v. Scott, 4 S. & T. 113 ; 34 L. J., P. & M. 23). VIII. Damages and Costs. 34. Any husband may, either in a petition for dis- Husband solution of marriage or for judicial separation, or in a da^a^ petition to the District Court or the High Court limited adulterer to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner. Such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses with such service, or directs some other service to be substituted. The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear. After the decision has been given, the Court may 188 THE INDIAN DIVORCE ACT. 34. direct in what manner such damages shall be paid or applied. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), sect. 33, pi*ovides that : " Any husband may, either in a petition for dissolution of marriage or for judicial separation or in a petition limited to such object only, claim damages from any person on the ground of having committed adultery with the wife of such petitioner, and such petition shall be served on the alleged adulterer and the wife, unless the Court shall dispense with such service or direct some other service to be substituted ; and the claim made by every such petition shall be heard and tried on the same principles, in the same manner and subject to the same or the like rules and regulations as actions for criminal conversation are now tried and decided in Courts of Common Law ; and all the enactments herein contained with reference to the hearing and decision of petitions to the Court shall, so far as may be necessary, be deemed applicable to the hearing and decision of petitions presented under this enactment ; and the damages to be recovered on any such petition shall in all cases be ascer- tained by the verdict of a jury, although the respondents or either of them may not appear ; and after the verdict has been given, the Court shall have power to direct in what manner such damages shall be paid or applied, and to direct that the whole or any part thereof shall be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife." " Any husband may claim " : (i) The petition must specify the amount which the husband claims (Spedding v. Spedding, 31 L. J., P. & M. 96). Court fee But no matter what the amount claimed may be, the petition, stamp. though limited to a claim for damages against the alleged adulterer, need only bear a Court fee stamp of Es. 20 (Court Fees Act, 1870, 2nd Sch., Art. 20). (ii) The petition, if it also prays for dissolution of marriage or for judicial separation, must state that there is no collusion or connivance between the husband and the wife, but, apparently, this is not necessary if the petition is limited to a claim for damages. It is, however, open to the alleged adulterer in all cases to prove in bar of any claim collusion or connivance between the husband and the wife (sect. 47, post], (iii) Every petition must be verified as required by sect. 47 of the Act. (iv) In a suit for dissolution of marriage instituted by the Husband's claim for DAMAGES AND COSTS. wife, the husband may oppose the relief sought on the ground 34. of the wife's adultery, pray for a dissolution of marriage or judicial separation, and claim damages against the alleged adulterer (sect. 15, ante}. (v) A husband whose wife has committed adultery is not bound to sue for dissolution of marriage. He can, if he prefers it, (a) sue merely for a judicial separation, with or without the addition of a prayer for damages against the adulterer; (b) bring a criminal complaint against the alleged adulterer under sect. 497 of the Indian Penal Code ; or (c) sue merely for damages against the alleged adulterer. (vi) The High Court, on a motion to confirm the decree of the District Court dissolving a marriage, has the fullest power to deal with the case as justice may require, including the award of damages by the lower Court, even though the co-respondent has not appealed (Kyte v. Kyte and Cooke, I. L. E., xx Bomb. 362 ; Coates v. Coates, No. 35, Punjab Record, 1887). (vii) Where the husband is an uncertificated bankrupt he will be ordered to give security for the costs of the person against whom he claims damages (Smith v. Smith, 7 P. D. 227). " Limited to such object only " : Claim only for damages. The mere fact that the husband has not sued, and does not intend to sue, for a dissolution of marriage or for judicial sepa- ration does not debar him from claiming damages against the adulterer. But a petition by the husband limited to damages alone is of very rare occurrence (but see Ramsden v. Ramsden and Luck, Times Law Eeps., vol. ii. p. 867). Although the husband does not claim relief against the wife, the petition for damages must be served on her, unless the Court otherwise orders. But, although a husband is not bound to sue for dissolution of marriage or judicial separation if he wishes to claim damages against the adulterer, it must be remembered that a husband who has condoned his wife's adultery cannot claim damages from the man who committed the adultery so condoned (Bern- stein v. Bernstein, (1893) P. 292 ; 63 L. J., P. & M. 3). It does not, of course, follow that a man, who refrains from suing for dissolution of marriage or judicial separation on the ground of his wife's adultery, and merely sues the adulterer for damages, must be presumed to have condoned such adultery so far as the wife is concerned. But, in such a case, the Court 190 THE INDIAN DIVORCE ACT. 34. Answer to claim. Plea in miti- gation of damages. will not require such strict proof of tlie fact of condonation as might otherwise be necessary. " Adultery with the wife of the petitioner " : In defence the alleged adulterer may urge the following pleas : (i) As absolute liars to the claim. (a) That the alleged adultery "was, in fact, never committed; or (b) that the adultery was committed, but that the petitioner connived at such adultery or has condoned the same; or (c) *that the petitioner's own con- duct has been such as would give the Court a discretionary power to refuse a decree in his favour for dissolution of marriage in respect of the same adultery (Seddon v. Seddon and Boyle, 30 L. J., P. & M. 12; Bernstein v. Bernstein, (1893) P. 292; 63 L. J., P. & M. 3; Story v. Story and 0' Conor, 12 P. D. 196; 57 L. J., P. & M. 15) ; or (d) that the petitioner and the woman were not husband and wife at the time of the alleged adultery. (ii) In mitigation of damages, (a) That he did not know or have reason to believe that the woman was married at the time of the adultery. Inasmuch as damages are given not as a punish- ment to the adulterer, but as compensation to the husband for the loss of his wife, it is clear that the fact that the adulterer was in ignorance of the woman's true position cannot affect the question of damages, except so far as to go in mitigation. In such cases the woman would necessarily be the chief offender, for she must hjave deceived her paramour into believing her to be unmarried, and the loss of such wife to the husband would not be very great ; (b) that it was not he who seduced the woman from her husband, but that the overtures came from her; (c) *that the woman's character and antecedents showed her to be a degraded and abandoned woman, whose loss to her husband was next to nothing ; (d) that, previously to any act of the * Ordinarily, in civil cases, evidence may only be given of a per- son's general character, and not of particular acts by which such character was shown (sect. 55 of the Indian Evidence Act, 1872). It is submitted, however, that in cases where a husband claims damages, it is open to the alleged adulterer to show that such petitioner ought not to receive damages at all, or, at any rate, merely nominal damages, by giving evidence as to such acts as show either what his character is, or what the character of his wife is (see sect. 12 of the Indian Evidence Act, and Field's Evidence Act, p. 356). DAMAGES AND COSTS. 191 adulterer, the husband and wife had lived unhappily together, 34. and that, consequently, the adulterer was in no way responsible for the breaking up of a happy home. A co-respondent who had not at the time of adultery any reason to believe the respondent to be a married woman will not be made to pay the petitioner's costs (see sect. 35, post). " Such petition shall be served " : Petition, even if confined to In the old action of " Criminal Conversation" (now abolished, damages, see sect. 61) the wife was not a party to the suit. But now she must be served must be made a party even in cases where the petition is limited a ^ ajJet-edT' to damages against the alleged adulterer, and the petition must adulterer, in all cases be served upon her as well as upon such alleged adulterer, except where the Court otherwise directs. " The damages to be recovered shall be ascertained by the Court to assess said Court": damages. In England, when damages are claimed, the amount, if any, to be recovered must be ascertained by the verdict of a jury (Matrimonial Causes Act, 1857, s. 33). If the adultery has been proved and the Court does not find any facts proved disentitling the petitioner to recover damages, the damages must be assessed at some sum, no matter how small, and the claim cannot be dismissed in toto simply on the ground that in point of fact the petitioner has suffered no damage (Anon., 31 L. J., P. & M. 96, note). Measure of Damages. Measure of damages. " In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded is relevant " (Indian Evidence Act, 1872, s. 12). A claim for damages in a divorce case is founded by the hypo- thesis that the husband has suffered injury by being deprived of his wife's society through the wrongful act of the co-respon- dent. In order to award any damages, it is necessary to find (i) that the husband has in fact been damnified, (ii) that such damage has been brought about by the wrongful act of the co- respondent without any fault on the part of the husband. It is no part of the functions of a jury to punish the adulterer for his immorality. Their sole duty is to compensate the husband for the Compensation to husband ; 192 THE INDIAN DIVOECE ACT. 34. injury (if any] which he has suffered through the wrongful act of not t>u ' ^h- ^ e c - res P on dent. If a husband lias a virtuous wife taken from merit to him by the contrivance of another man, he is entitled to damages adulterer. commensurate with the loss of such a wife ; but if she has led a loose life before marriage, her value is not the same as that of a virtuous woman. In estimating the amount of damages to be awarded, the fact that the wife was earning money, of a portion of which the husband had the advantage, may properly be taken into account* (Darlishire v. Darlishire, 62 L. T. 664). " If it is proved that a man has led a happy life with his wife, that she has taken care of his children, that she has assisted in his busi- ness, and then some man appears upon the scene and seduces the wife away from her husband, then the jury will take these facts into consideration. But the question in this case, as in so many others, is whether or not these losses have been cast upon the petitioner by the act of the co-respondent. If he did not seduce her away from her husband, that makes a very material difference in considering the amount of damages to be given. Conduct of J n considering these questions, undoubtedly the conduct of the 7ms- ccmsidered. & band must he looked to. Here the husband and wife had been leading an unhappy life before they parted, and he knew that she had no means of living What can any husband expect who has separated from his wife who he knows has no means ? What will follow ? Why, that in the ordinary course of things she may yield to the temptation of securing support from some other man" (Keyse v. Keyse, 11 P. D. at pp. 101, 102). In assessing damages, according to Sir Cresswell Cresswell, " the first question is, How has the husband demeaned him- self ? Has he shown carelessness or want of caution, indicating a want of due value for his wife's chastity ? The next question is, Did they live happily together ? Because, if they lived un- happily, his loss in his wife is not so great. The next topic that is generally considered is the position of the defendant. How came he to be introduced ? Under what circumstances did he become intimate with the family ? Was there anything like treachery in his conduct ? That is a legitimate consideration ; not that you are to punish the man, but the conduct of the defendant, the mode in which he proceeds to obtain the affection of the lady, is important for your consideration. If a woman * So also may the position of the husband as regards the marriage settlements (Bell v. Bell and Anglesey, 1 S. & T. 565 ; 29 L. J., P. & M. 149). DAMAGES AND COSTS. 193 surrenders herself very readily to a man who takes no pains to 34. obtain her affections, or if you have reason to suppose that she ~ has made the first advances, you are to estimate, as far as you can form an estimate in money, the loss the husband has sus- tained " (Comyn v. Comyn and Humphreys, 32 L. J., P. & M. 210). " The means of the co-respondent have nothing to do with the Means of co- question. The only question is what damage the petitioner has respondent- sustained, and the damage that he has sustained is the same whether the co-respondent is a rich man or a poor man " (Keyse v. Keyse, 11 P. D. 102; Darbishire v. Darbishire, 62 L. T. 664; Sikker v. Sikker and WUtewood, 67 L. T. 141). The fact that the adulterer is a poor man should not debar the Court from giving heavy damages against him if his conduct has entailed a heavy loss on the husband, for " if he cannot pay in purse he must pay in person" (Cowing v. Cowing and Woolen, 33 L. J., P. & M. 149). Where a husband and wife were living apart under a deed of Husband and separation which had been executed in consequence of the wife's W1 * e hying intimacy with the co-respondent, with whom the wife subse- deed of quently committed adultery, it was held that the husband was separation, entitled to the same amount of damages as he would have been had no deed of separation been executed. But if the separation was in no way due to any conduct on the part of the co-respon- dent, the fact that the husband and wife were living apart under a deed of separation might be held to amount to an absolute bar to the recovery of damages by the husband, or, at all events, to reduce the damages to the smallest amount. "It must be obvious to anyone that if a husband and wife have con- sented to live separately, and have, in fact, lived separately for a number of years, the injury to the husband would be com- pensated in the smallest amount of damages. But each case varies with the different circumstances of life, and I have no hesitation in telling you that if a man makes the acquaintance of another man's wife, engages her affections, and is the cause of her separation from her husband, and then, after such separa- tion, commits adultery with her, the husband is entitled to the same amount of damages as he would have been entitled to if no separation deed had been executed between them, and that even if no adultery had been committed before the separation " (Butt, J., Izard v. Izard, 14 P. D. 45 ; 58 L. J., P. & M. 83). Under sect. 33 of the Matrimonial Causes Act, 1857, the Court is bound by the assessment of the damages by the jury, R. O 194 THE INDIAN DIVORCE ACT. 34. Non-appear- ance of adulterer. Bankruptcy of adulterer. and is not at liberty to recognize any agreement between the petitioner and the co-respondent as to the amount to be paid by the latter (Callwell v. Callwell and Kennedy, 3 S. & T. 259). This, however, is not the case in India under the Indian Divorce Act, and in any case, after the damages have been assessed, there is nothing to prevent the petitioner accepting a smaller sum than that awarded, if he so wishes (cf. Daley. Dale, 15 L. T. 595). "Although the respondents or either of them may not appear": If a co-respondent against whom a claim for damages is made does not appear, the Court must assume his guilt and assess damages against him, and this, too, though the respondent be acquitted of the offence charged (Stone v. Stone and Appleton, 3 S. & T. 608 ; 34 L. J., P. & M. 33 ; cf. Long v. Long, 15 P. D. 218; 60 L. J., P. & M. 27). But on an issue of adultery raised between the husband and wife in a suit in which damages are asked for against a co- respondent who has not appeared, no evidence which is not admissible against the wife can be given to show that the co- respondent committed adultery. Any evidence, however, in aggravation of damages is admissible (Stone v. Stone and Apple- ton, supra}. A co-respondent who appears but puts in no answer is not entitled to address the jury in mitigation of damages or to cross-examine with that view (Lyne v. Lyne andBlackney, L. E., 1 P. 508 ; 37 L. J., P. & M. 9). Bankruptcy of co-respondent. When damages are awarded in the Divorce Court against a co-respondent, and are ordered to be paid to the petitioner, he undertaking to pay the same immediately into Court, such damages will not constitute a good petitioning creditor's debt on which to found an adjudica- tion in bankruptcy (In re Muirhead, 2 Ch. D. 22 ; 45 L. J., Bk. 65). In such a case the petitioner is a mere receiver or collector for the Court of money which is not to be applied for his own benefit and is not a " judgment creditor " within the meaning of sect. 103 (5) of the Bankruptcy Act, 1883 (In re Fryer, 17 Q. B. D. 718; 55 L. J., Q. B. 478). Accordingly, in order to avoid this difficulty, the Court may order the damages to be paid direct to the petitioner (Patterson y. Patterson, L. E., 2 P. 189 ; 40 L. J., P. & M. 5). It is, however, DAMAGES AND COSTS. doubtful whether the Court of Divorce has power to make such an 34. order, and also whether in such an event the petitioner can prove ~ for the amount under the co-respondent's bankruptcy (ib. ; cf. Wood v. Wood and Stanger, L. E., 3 P. 467 ; 37 L. J., P. & M. 25). Assignee of damages. When a petitioner has assigned his Assignee of damages, the assignee has no right to intervene in any way in damages, the suit (Hunt v. Hunt, (1894) P. 247 ; 63 L. J., P. & M. 136). " Court may direct in what manner such damages shall be Apportion- paid or applied": -^ Sect. 39 (post] provides that "the Court may direct that the whole or any part of the damages recovered under sect. 34 shall be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife." The usual order is that the co-respondent must pay the damages into the registry or to the petitioner, the latter undertaking to pay the same into Court. But if there is any fear of the damages being lost by such a procedure, e.g., by the co-respon- dent's bankruptcy, the Court may make an order of speedy payment direct to the petitioner, he undertaking to apply the money under the orders of the Court (see Sent v. Sent, 30 L. J., P. & M. 189 ; Patterson v. Patterson, L. E., 2 P. 189 ; 40 L. J., P. & M. 5; Oyte v. Gyte, 10 P. D. 185). The Court, it was formerly held, had no jurisdiction to order that the damages be paid into Court (Forster v. Forster and Serridge, 32 L. J., P. & M. 133 ; but see Gyte v. Gyte, supra}. When the damages have been paid into Court or to the petitioner, as the case may be, the Court will make an order as to the manner in which such damages shall be applied, and thereafter a regular deed of settlement, to be approved by the Court, will have to be drawn up. Apportionment of damages. It must be remembered that Damages not "the right of the husband is not, as the law now is, to have for husband's damages for his own pocket " (Keats v. Keats and Montezuma, 28 L. J., P. & M. at p. 61). The interests of the child or children of the marriage are to be first considered, nor are those even of the guilty wife to be ignored. And when the Court has made an order that the damages shall be applied in a certain manner for the benefit of the children and of the respondent, it 196 THE INDIAN DIVORCE ACT. 34. Costs of peti- tioner to be first paid out of damages. not countenance any private agreement between the petitioner and the co-respondent whereby the interests of the children are injuriously affected (Forster v. Forster and Berridge, 34 L. J., P. & M. 88). But ordinarily the costs of the petitioner, over and above the amount he may have recovered from the co-respondent, will, when taxed, be paid out of the damages before any other payments are made (Forster v. Forster and Berridge, supra; Billingay v. Billingay and Thomas, 35 L. J., P. & M. 84 ; Taylor V. Taylor and Walters, 39 L. J., P. & M. 23). After the petitioner's taxed costs have been duly satisfied, the Court has an absolute discretion to make any order it thinks tit as to the application of the damages, and the Court may make an order for the settlement of such damages either a part of the decree nisi (Evans v. Evans and Bird, L. B., 1 P. 36), or after the decree nisi has been made absolute (B&lingay v. Billingay and Thomas, L. E., 1 P. 168). No general rules can, under the circumstances, be laid down, but the following may be taken as illustrations : (i) Damages ordered to be applied for benefit of the Children of the Carriage. (a) Damages assessed at 250?. ; the Court directed all the husband's interests in the damages to be assigned by him to a trustee for the use of the only child of the marriage, and in the event of the child's death under the age of twenty-one, and unmarried, for the use of the husband ; the assignment to be settled by one of the conveyancing counsel of the Court of Chancery, and the decree absolute to be suspended until the assignment had been executed (Clark v. Clark and Bonck, 2 S. & T. 520; 31 L. J., P. & M. 61). (b) Damages 1,0001.; the Court ordered the damages to be paid to the husband in trust to pay thereout his own surplus costs, and as to the residue for the children of the marriage in equal shares, to be paid to them on attaining the age of twenty- one (Speddirtg v. Spedding, 32 L. J., P. & M. 31). (c) The jury having recommended that the damages, which they assessed at 300?., against the co-respondent should be settled entirely on the children of the marriage, the Court ordered that the petitioner's surplus costs having been taxed should be first paid out of the fund, and that the residue should be invested in the name of a trustee, the income to be expended DAMAGES AND COSTS. 197 for the maintenance and education of the children until they 34. were of age, when the principal would be divided among them ~ (BUlingay v. Billingay and Thomas, 35 L. J., P. & M. 84). (d) The whole of the damages, after payment of petitioner's costs, were ordered to be paid to a trustee for the benefit of a child which had been born after the separation between husband and wife, and which was suspected of being the child of the co-respondent (Callwell v. Callwell, 3 S. & T. 259). (ii) Damages ordered to be applied for the benefit of the Damages 777- /> applied for Wl / e - benefit of (a) Damages, assessed at 1501. , ordered to be expended in ' w ^ e - purchasing a government annuity for the wife ; the Court, at the same time, refused to make a settlement out of the earnings of the husband, who was a civil engineer in India with a yearly salary of 850?. ; there were three children, the issue of the marriage (Latham v. Latham and Gethin, 30 L. J., P. & M. 43). (b) Damages assessed at 2,500?. ; "the undoubted conduct of the petitioner towards his wife, as disclosed at the trial, could hardly have commended itself to any who heard it " ; the Court ordered that the damages, after payment of the surplus costs of the petitioner, should be settled on the respondent for life, dum casta vixerit ; after her death or breach of the said condition, the fund to devolve on the two children of the marriage (Narracott v. Narracott and Hesketh, 33 L. J., P. & M. 132). The Court subsequently refused to vary this order by making the wife's interest continue only dum casta et inupta vixerit (Narracott v. Narracott and Hesketh, 34 L. J., P. & M. 54). (iii) Damages ordered to be applied for benefit of Husband. Damages applied for In a case where it was proved on the hearing of a petition benefit of that there had been no issue of the marriage, and that at the husband, time of the hearing the respondent and the co-respondent were living together, the Court ordered that the damages assessed against the co-respondent should be paid to the petitioner and made its order part of the decree nisi, instead of postponing it till the decree absolute (Evans v. Evans and Bird, L. E., 1 P. 36). (iv) Damages apportioned between Husband, Children and Damages Wif e apportioned between hus- (a) Damages, assessed at 5,000?., ordered to be paid to the band, wife, petitioner's solicitor and to be applied by him as follows : 1 ,000?. 198 THE INDIAN DIVORCE ACT. 34. to be paid by him to the petitioner, and out of the residue an ~ annuity of 120L to be purchased for the respondent's life to be paid to her dum casta vixerit, with remainder to two of her daughters ; and the balance to be invested in an annuity for these two daughters (Forster v. Forster and Ser ridge, 3 S. & T. 158; 32 L. J., P. & M. 206). It was further ordered that a deed should be prepared and settled by one of the conveyancing counsel of the Court of Chancery whereby the order should be effectually carried out through the intervention of trustees and that anticipation of the annuities should be restrained. (b) Damages, assessed at 5,OOOZ. , were apportioned as follows : 1,500?., in addition to his surplus taxed costs, to be paid to the husband; 1,500Z. to be settled on the youngest child of the marriage, aged five, the only one remaining with the petitioner, the three other children, all of whom were of full age, having left their father and cast in their lot with their mother ; the balance to be invested in an annuity for the respondent's life, to be paid to her as long as she lived chastely and did not become the wife of the co-respondent, and in the event of her breaking any of these conditions, to be paid to the petitioner. In making this apportionment the learned judge said : "It appears that the co-respondent is a married man, and it is said that since her separation from the petitioner the respondent has been sup- ported and visited by the co-respondent. Indeed, I am asked to come to the conclusion that their guilty intercourse has been carried on since the pronouncing of the decree in the suit. My object, then, in making the annuity payable to the respondent, so long as she lives a chaste life, is that she shall have the strongest possible motive to abstain from troubling the married life of the co-respondent and his wife. I do not impose as a condition that the respondent shall not marry again ; that, per- haps, would be the best thing that could happen. But, in the event of the co-respondent's wife dying, and his marrying the respondent, then, as she would have to be supported by him, there would be no reason for her continuing to receive the annuity, and in that event it ought to go to the petitioner. I pass over the children, save the youngest, but not because I think they might not be entitled to some share in the damages by reason of their being of full age. I do not think that would be a sufficient reason for passing them over. There might be circumstances under which I should have allowed some portion of the damages to be paid to them, but two of these three chil- dren have cast in their lot with their mother, and in putting her DAMAGES AND COSTS. 199 in possession of this annuity I leave it to her to apply such 34. portion of it to their maintenance as she may think fit, and also ~ furnish another and additional motive for her observance of the conditions which I have named" (Meyern v. Meyern and Myers, 2 P. D. 254 ; 46 L. J., P. & M. 5). In this case the petitioner was a banker's clerk with a yearly salary of between 400?. and 500?. , and the respondent had no means of support or provision for her maintenance ; and of the three children of the marriage who were of full age two were sons and one a daughter. 35. Whenever in any petition presented by a hus- Power to band the alleged adulterer has been made a co-respondent, terer to pay and the adultery has been established, the Court may c< 8 s ' order the co-respondent to pay the whole or any part of the costs of the proceedings : Provided that the co-respondent shall not be ordered to pay the petitioner's costs (1) if the respondent was at the time of the adultery living apart from her husband and leading the life of a prostitute, or (2) if the co-respondent had not at the time of the adultery reason to believe the respondent to be a married woman. Whenever any application is made under section Power to seventeen, the Court, if it thinks that the applicant had i^te/venaTto 8 no grounds or no sufficient grounds for intervening, pay costs< may order him to pay the whole or any part of the costs occasioned by the application. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), sects. 34 and 51, respectively provide as follows : ' ' Whenever in any petition presented by a husband the alleged adulterer shall have been made a co-respondent and the adultery shall have been established, it shall be lawful for the Court to order the adulterer to pay the whole or any part of the costs of the proceedings " (sect. 34). ' ' The Court on the hearing of any suit, proceeding, or petition under this Act, and the House of Lords on the hearing of any appeal under this Act, may make such order as to costs as to such Court or House respectively may seem 200 THE INDIAN DIVORCE ACT. 35. just : Provided always, that there shall be no appeal on the subject of costs only" (sect. 51 ; contrast with this pro- vision sect. 55 of the Indian Divorce Act, post], As regards the English Divorce Court's power to regulate fees payable upon all proceedings before it, see sect. 54 of the Matrimonial Causes Act, 1857. On the subject of costs, generally, see Rules 27, 50, 103, 110, 111, 116, 137, 151159, 177179, 193, 198, 200203,216218, of the English Divorce Court Eules. " The Court may order the co-respondent to pay the whole or any part of the costs of the proceedings " : The subject of costs will be found discussed generally in Appendix (F.), post. IX. Alimony. Alimony 36. In any suit under this Act, whether it be insti- tuted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit. Such petition shall be served on the husband ; and the Court, on being satisfied of the truth of the state- ments therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just : Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average nett income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be. The Matrimonial Causes Acts of England do not deal ex- pressly with the subject of alimony pending the suit; the English Court, therefore, follows the practice of the Ecclesiastical Courts in this matter. See Nos. 8194, and 189192, of the Kules of the English Divorce Court. ALIMONY. 201 " In any suit under this Act " : 36. (a) Suit for nullity of marriage. In a suit for nullity of Alimony marriage, although it is apparent on the face of the petition and j^^f f 1 ' answer taken together that there was no valid marriage, the nullity of Court has jurisdiction to grant alimony pendente lite, on the marritge. principle that the factum of the marriage being admitted, costs and alimony pendente lite follow (Miles v. Chilian, 1 Robert. 684; Bird v. Bird, 1 Lee, 209, 418 ; Foden v. Foden, (1894) P. 307 ; 63 L. J., P. & M. 163 C. A.). In the case last cited the English Court of Appeal expressly dissented from the view of Lord Penzance (Blackmore v. Mills, 18 L. T., N. S. 586), to the effect that when the invalidity of the so-called marriage was apparent on the face of things, the Court had no power to grant alimony pending the suit. Accordingly, an application for alimony pending a suit for nullity need only state that a ceremony of marriage was per- formed between the parties which might be a valid marriage ; an affidavit to that effect is apparently unnecessary (Crump v. Crump and Abbott, 3 B. L. B., O. C. 101). In this case alimony pendente lite was granted to the applicant, although it was shown that she was the sister of the respondent's deceased wife. (b) Suit for dissolution of marriage. The Act expressly Suits for dis- declares that alimony pendente lite is, when granted, to continue s l u ti n f until the decree has been made absolute. But, if such alimony had not been granted before the making of the decree nisi, it for alimony was formerly held that the Court could not grant it in the pendente lite interval between the decree nisi and the decree absolute (Latham a ! t ? r decree v. Latham, 2 S.' & T. 299). This case has, however, been expressly overruled by the Court of Appeal on the ground that as the legal status of a married woman is not altered by the decree nisi, and as until the decree absolute the Court can make no permanent provision for the wife, it is only reasonable that it should have power to make some temporary provision for her during the interval between the two decrees (Ellis v. Ellis, 8 P. D. 188 ; 52 L. J., P. & M. 99). In Bennett v. Bennett (I. L. R., xi Calc. 354), Norris, J., fol- lowing Latham v. Latham, refused to grant alimony pendente lite after the decree nisi, on the ground that such decree puts an end to the Us between the parties. But it has now been definitely held that the Us is not put an end to by the decree nisi, and that the suit between the parties remains pending until the decree absolute (Norman v. Villars, 2 Ex. D. 359 ; 202 THE INDIAN DIVORCE ACT. 36. Suits for j udicial separation. Suits for restitution of conjugal rights. Service of petition. Payment to wife of ali- mony pending suit. Ellis v. Ellis, supra ; Foden v. Foden, (1894) P. 307; 63 L. J., P. & M. 1630. A.). And in the very recent case of Thomas v. Thomas (I. L. E., xxiii Calc. 913), Ameer All, J., held, on the] authority of the above cases, that the Court had jurisdiction to entertain an application, made by the wife after the decree nisi, for alimony pendente lite for the time previous to such decree. In this case the decree nisi had been made at the instance of the husband, and on the ground of the wife's adultery. (c) Suit for judicial separation. In a suit for judicial separa- tion, the Court may grant alimony pendente lite to the wife, whether she is the petitioner or the respondent. But as regards the grant of permanent alimony, it is doubtful whether the Court has power to make an order under sect. 37 in favour of a wife whose husband has obtained a decree for judicial separa- tion (see as to this, sect. 37, note " Obtained by the Wife"). (d) Suit for restitution of conjugal rights. Although the Court has, under this section, power to grant alimony pending a suit for restitution of conjugal rights, it cannot, after decree in such suit, grant the wife permanent alimony under sect. 37 (see sect. 37, post, note). " Petition shall be served on the husband " : Under sect. 50 of the Act, the Court may, if it thinks fit, dispense with personal service of any petition under the Act. Where substituted service of the petition for dissolution had previously been permitted upon the respondent's agents, the Court allowed substituted service of the petition for alimony by registered letter addressed to the respondent's agent (Odevaine v. Odevaine, 58 L. T. 564). " Statements therein contained" : See Form No. 12. " Payment to the wife of alimony pending the suit " : As a general rule, alimony pendente lite, when granted, is payable from the date of the service, not of the return, of the citation (Kelly v. Kelly and Saunders, 3 B. L. E., App. 4; Nicholson v. Nicholson and Ratcliffe, 31 L. J., P. & M. 165 ; Thomas y. Thomas, I. L. E., xxiii Calc. 913). But where the wife had for some time after the filing of the ALIMONY. 203 suit and service of the citation continued to cohabit with the 36. co-respondent, the Court, in allotting alimony pendente lite, directed that it should be payable from the date at which she ceased to so cohabit, arid not from the date of service of the citation (Holt v. Holt and Davies, L. E., 1 P. 610; 38 L. J., P. & M. 33). Alimony pendente lite, when granted, continues to be payable Payable till to the wife until the final decree in the suit on the original " na * decree, hearing, that is to say, in suits for dissolution or nullity of marriage, when the decree is made absolute or confirmed, as the case may be, and in suits for restitution of conjugal rights or for judicial separation, when the Court in which such suit was instituted has passed its decree thereon. In a suit for dissolution of marriage, a wife to whom alimony pending the suit is granted is entitled to have such alimony continued until the decree nisi is made absolute or confirmed, although such decree nisi has been made on the ground that she has been proved guilty of adultery. In England the law is different. Although there the Court has jurisdiction to grant alimony pendente lite even after the decree nisi and to make such alimony payable until the decree absolute (Ellis v. Ellis, 8 P. D. 188), yet a wife who has been found guilty of adultery forfeits her right to alimony pendente lite immediately the adultery is established, that is to say, when the case has been tried by a jury as soon as the verdict is given, and when the case is tried by the Court itself as soon as the decree nisi is pronounced (Dunn v. Dunn, 13 P. D. 91 ; Wells v. Wells and Hudson, 3 S. & T. 542). But in cases tried by a jury the Court has power to con- tinue the alimony pendente lite even after an adverse verdict if it thinks " it not improbable that the wife will obtain a new trial and succeed ultimately in establishing her innocence" (Cotton, L. J., Dunn v. Dunn}. Alimony pending an appeal. Alimony pendente lite only con- Alimony tinues until the final decree on the original hearing, but if an pending appeal be preferred, it is competent to the Appellate Court, if a PP eal< so moved, to grant alimony pending the appeal to the wife. Such alimony will usually be granted as a matter of course, but the Court will refuse to grant it if satisfied that the appeal is vexatious or frivolous or that the wife has been guilty of laches (Jones v. Jones, L. E., 2 P. 333; 41 L. J., P. & M. 53). Alimony pendente lite : application for review of judgment. It Alimony has been held in England that the Court has power to continue pending 204 THE INDIAN DIVORCE ACT. 36. application for review. Wife to be considered innocent. alimony pendente lite even after a final decree passed against the wife if she has applied for a new trial and the Court thinks it not improbable that she will succeed in such new trial (Nicholson v. Nicholson, 3 S. & T. 214 ; cf. Dunn v. Dunn, 13 P. D. 91). In India there is no provision made for new trials, but the wife may apply, under sect. 623 of the Civil Procedure Code, for a review of judgment a proceeding which is, in many respects, similar to an application for a new trial. If such application is made by the wife and she further prays that alimony pendente lite may be continued pending the petition for review, the Court (it is submitted) has jurisdiction to continue the alimony, and will, probably, do so if satisfied that it is not unlikely that the petition for review will succeed (Hirabaiv. Dhunjibhoy, I. L. E., xvii Bomb. 148, per Jardine, J.). Alimony pendente lite : general principles. As a general rule, every wife is entitled to receive alimony pending the suit, and she will be considered, for the purpose of allotting such alimony, innocent of any charge or counter-charge preferred against her by her husband, even though by not answering to such charge or counter-charge she may have impliedly admitted her guilt (Smith v. Smith and Tremeaux, 4 S. & T. 228 ; 32 L. J., P. & M. 91). Nor is her adultery, admitted or proved,* any ground for allotting her less than the usual amount ; therefore, an aver- ment in the answer to a petition for alimony that the wife has been guilty of adultery is irrelevant ( Grampian v. Crampton and Armstrong, 32 L. J., P. & M. 142 ; D'Oyley v. D'Oyley, 4 S. & T. 226; 29 L. J., P. & M. 165). So, where a wife, against whom a decree nisi for dissolution of marriage on the ground of her adultery had been passed, applied thereafter for alimony pendente lite, Ameer Ali, J., held that she was entitled to alimony pendente lite from the date of service of the citation, but referred it to the registrar to inquire into the facts alleged by the parties, and to report what, if any, alimony under the circumstances that might be established should, in his opinion, be given to the wife prior to the decree nisi* (Thomas v. Thomas. I. L. E., xxiii Calc. 913). * In England, however, the rule is different, for when once the wife's adultery is proved, though she is still a wife, she loses her right to alimony pendente lite immediately the order of the Court is passed adversely to her (Dunn v. Dunn, 13 P. D. 91). ALIMONY. 205 If, however, it is shown that the wife is at the time when she 36. applies for alimony pendente lite continuing to cohabit with the wife gup . co-respondent and is being provided for by him, the Court will ported by co- refuse to grant her alimony so long as such cohabitation and respondent, maintenance continues. But the ground for this refusal is not the adultery on the part of the wife, but the fact that she has means of support independent of her husband. If, therefore, she leaves the co-respondent, or if the latter refuses to maintain her any longer, she is entitled to receive alimony pending the suit from the date when she leaves him or is no longer sup- ported by him (Holt v. Holt and Davies, L. E., 1 P. 610; 38 L. J., P. & M. 33; Madan v. Madan and Thoren, 37 L. J., P. & M. 10). It has also been held that a wife who is living apart from her husband under such circumstances that she cannot, in law, pledge his credit, is disentitled to alimony pendente lite (Gordon v. Gordon, 3 B. L. E. Ap. 13). But the fact that the wife is at the time undergoing a sentence Wife under- of imprisonment for felony is no ground for refusing to grant j? 011 ^ "I 6 ?" her alimony pending the suit (Kelly v. Kelly, 4 S. & T. 227 ; 32 prisonment. L. J., P. & M. 181). In a suit for dissolution of marriage by the wife the husband Plea by appeared under protest and pleaded that the Court had no juris- husband to diction in the suit on the ground that he had never been domi- Q ^ Court ciled in England. The wife having thereafter filed a petition for alimony pendente lite, the husband moved for an order to stay all proceedings as to alimony until the question of jurisdic- tion should be determined, but the Court, though holding that it was a matter of discretion whether alimony should be granted pending the determination of such question, granted the wife's petition on the ground that the question of jurisdiction could not be determined for several months (Ronalds v. fionalds, L. E., 3 P. 259). The object of granting alimony pendente lite is to enable a wife Considera- during such time as there is litigation between her and her tions for Court husband to live in the comfort appropriate to a woman of her Jriimony'peH- rank and position. Accordingly, in allotting her such main ten- dente lite, ance, the Court should take into consideration a comparison of the respective incomes of the husband and the wife, for " the wife of a man with 4,000?. a year is entitled to spend more on her maintenance than the wife of a poorer man" (Alleny. Allen, (1894) P. 134 ; 63 L. J., P. & M. 78 C. A. ; cf. R. v. R., I. L. E., xiv Mad., at p. 95). 206 THE INDIAN DIVOECE ACT. 36. "Wife having means of support inde- pendent of her husband. Means derived from co- respondent. Both parties almost penniless. Vexatious suits brought by wife against husband. Wife remov- ing furniture from hus- band's house. Wife con- tracting extravagant debts. Postpone- ment of suit at instance of wife. Ordinarily, a wife who is in no need of support from her hus- band, either because she has separate property of her own or else because previously to the institution of the suit she has been supporting herself by her own earnings, will not be granted alimony pendente lite (George v. George, L. E., 1 P. 554 ; 37 L. J., P. & M. 17 ; Thompson v. Thompson and Johnson, L. B,., 1 P. 553 ; Goodheim v. Goodheim and Frankinson, 2 S. & T. 250 ; 30 L. J., P. & M. 162). If she has, independently of her husband, ample means of support, even if such means are derived from the co-respondent, she will be disentitled to alimony pending the suit (Holt v. Holt and Davies, L. B,., 1 P. 610; Madan v. Madan and De, Thoren, 37 L. J., P. & M. 10). And in cases where both parties are almost penniless the power of the wife to maintain herself should especially be con- sidered (Nicholls v. Nicholls, 30 L. J., P. & M. 163, note). The institution of a number of vexatious suits, all ending unsuccessfully, by the wife against her husband is a ground for allotting her alimony at less than the ordinary rate (Hakewell v. Hakewell, 30 L. J., P. & M. 254). And where it was shown that the wife had removed furniture of very considerable value from her husband's house the Court refused to grant her alimony pendente lite so long as she retained possession of such furniture (Bremner v. Bremner and Brett, 3 S. & T. 249; 32 L. J., P. & H. 119). But the mere fact that the wife has previously to the order for alimony contracted debts to an extravagant amount will not entitle the husband to claim a diminution of the usual amount allowed as alimony pendente lite; "because the husband is, legally, liable only for a reasonable amount, with reference to the position of the wife ; and if she should have contracted debts to an unreasonable amount, I cannot assume that he will have to pay more. It may be that, by his own conduct in paying debts of a similar description before, he has encouraged persons to give credit to a larger amount than they would otherwise have done. If so, he must suffer ; but I cannot take into con- sideration the large amount of the debts contracted in estimating the amount of alimony. I must assume that he is liable only for a reasonable sum for her support " (Hay ward v. Hay ward, 28 L. J., P. & M. 9 ; 1 S. & T. 85). If the trial of a suit by the wife is postponed at her instance, the Court may, under the circumstances, direct that the alimony pendente lite which has been allotted shall be suspended from the ALIMONY. 207 date of postponement until the cause is tried (Rogers v. Rogers, 36. 34 L. J., P. &M. 87). An allowance made to the wife under a deed of separation is Wife receiv- not necessarily a bar to a petition by her for alimony pendente m ^, a ovvanc J * i under separa- te; but, in order to succeed, she must show reasonable grounds tion deed. for an increase of allowance, e.g., that she has been residing abroad or living cheaply in the country and requires more money in order to maintain or defend the suit (Powell y. Powell and Jones, L. E., 3 P. 186 ; 43 L. J., P. & M. 9). Where a husband, who had agreed in a deed of separation to make his wife an allowance determinable on her molesting him, subsequently discontinued such allowance on the ground that she had broken her covenant, the wife in a suit for judicial separation instituted by her applied for, and obtained, alimony pendente lite (Wood y. Wood, 57 L. J., P. & M. 31). In such a case the Court would probably allot alimony at the same rate as the husband had covenanted to pay the wife in the deed of separation (Weber y. Weber, 1 S. & T. 219). The mere fact that since the execution of the deed the husband's income has in- creased is no ground for granting the wife alimony at a higher rate than that stipulated in such deed (Poivell y. Powell and Jones, L. E., 3 P. 186 ; 43 L. J., P. & M. 9). All payments made by the husband to the wife after the Payments service of the citation will be deducted from alimony pendente ade to wife lite (Crampton y. Crampton and Armstrong, 32 L. J., P. & M. 142). O f citation. " Husband's average nett income " : Husband's average nett The husband in his answer to a petition for alimony pendente income. lite must state the amount of his gross income for the three years next preceding the date of the petition, and then specify what, if any, deductions he claims ; it is not sufficient for him to merely state the amount of his nett income for that period (Nokes y. Nokes, 3 S. & T. 529 ; 33 L. J., P. & M. 24). But, though the husband is bound to state his gross average What bus- income for the last three years, "he will still be at liberty to band's answer state what his income has been during the whole of the last nine" or any other number of "years, and also any other circumstances which may tend to account for his income being larger than ordinary in any particular year. He may state any facts from which the Court can properly draw a conclusion as to what his faculties now are ; and for the purpose of deter- mining that, the more facts before the Court the better. But to 208 THE INDIAN DIVORCE ACT. 36. All valuable property to be taken into consideration. If property is mortgaged. Income derived from land. Allowable deductions. state the average of his income for the last nine years is not suffi- cient" (Williams v. Williams, L. E., 1 P. 370; 36 L. J., P. & M. 39). " It is an entire mistake to suppose that the phrase ' nett income ' in the Act has any other meaning than that which it ordinarily bears Ordinarily, with an official drawing a fixed salary and having no other means, that expression would be taken to mean the amount of his salary minus deductions on account of income tax, charges for a pension fund and the like ; and, in our judgment, that is the sense in which nett income is to be understood in dealing with a case under the Divorce Act" (It. v. R., I. L. E., xiv Mad. 88). In the allotment of alimony, the whole of the husband's valu- able property will be taken into account, whether or not he derives any income from it. Accordingly, the value of shares in a company, although no dividend is payable thereon, and the annual value of houses occupied by himself or belonging to him but occupied by others rent free, must be stated in his answer (Crampton v. Crampton and Armstrong, 32 L. J., P. & M. 142). If the husband's property is mortgaged, the answer must state the date of the mortgage, the name of the mortgagee and the amount of the mortgage debt (ibid.}, and in stating his income derived from land, the husband in his answer must state the gross rental and specify all outgoings (Nokes v. Nokes, 3 S. & T. 529; 33 L. J., P. & M. 24). Deductions claimable by husband. After stating his average gross income for the last three years, the husband is at liberty to specify any deductions which he claims. As regards income derived from real property, the husband is entitled to deduct the expenses of ordinary current repairs, but not of extraordinary and permanent improvements which ought to be charged on the corpus of the property (Hayward v. Hay ward, 1 S. & T. 85 ; 28 L. J., P. & M. 9). Deductions are allowable on account of income tax and charges made for a pension fund to which the husband sub- scribes on behalf of his family (R. v. R., I. L. E., xiv Mad. 88). But deductions are not, as a rule, allowable on account of sums paid by way of premia to maintain a policy of insurance on the husband's life (Wilcocks v. Wif cocks, 32 L. J., P. & M. 205; Patterson v. Patterson and Curtis, 33 L. J., P. & M. 36). But in a case where the policy was under settlement for the ALIMONY. 209 benefit of the wife and family, and the premium was deducted 36. and paid over to the insurance office by the husband's employers, the Court allowed the amount of such premium to be deducted in the calculation of the income (Forster v. Forster, 2 S. & T. 553; 31 L. J., P. & M. 84). The Court will take into consideration any arrangement which the husband has made for liquidating his debts, and if he has contracted to pay off a debt by annual instalments, he will be entitled to deduct the amount of each instalment from his income (Patterson v. Patterson and Curtis, 33 L. J., P. & M. 36; R. v. R., I. L. E., xiv Mad. 88). As a general rule, the expense of maintaining and educating Expenses his children by a former marriage does not form a legitimate coim ected ,,,.,, , , ,, . . ,, ,, , . with mam- deduction irom a husband s income in the allotment of alimony, tenance of nor, apparently, is the fact that there are several such children children, any ground for allotting less than one-fifth of his income as alimony pendente lite (Graf ton v. Orafton, 27 L. T. 768 ; Hill v. Hill, 33 L. J., P. & M. 104). The Court will, however, take into consideration expenses incurred by the husband in maintaining and educating children the issue of the marriage between him and the petitioner for alimony (Harris v. Harris, 1 Hagg. Eccl. 351; R. v. R., I. L. E., xiv Mad. 88). Joint income of husband and wife. Although the wife may Joint income have brought a large sum to the husband, and although the f husband cohabitation contemplated at the time of marriage may have an W1 e ' become impossible owing to the husband's misconduct, the Court is not competent to grant as alimony pendente lite more than one-fifth of the joint income, or, in England, more than one moiety of such joint income (Haigh v. Haigh, L. E., 1 P. 709; 38 L. J., P. & M. 37). Power to increase or reduce alimony pending the suit. The High Increase or Court of Madras in a recent case (R. v. R., I. L. E., xiv Mad. 88) reduction doubted whether the Court has power to increase or diminish pcnc i c)ltc ^. an allotment once made of alimony pendente lite on account of a change in the husband's position and means. The Court in England has the power to do so under Eule 92, and possibly sect. 7 of the Act may be held to authorize the Courts of this country to adopt the practice of the English Court. If the husband applies to the Court to reduce the amount payable by him on the ground that since the date of the order his income has been materially diminished, he must explain K. P 210 THE INDIAN DIVORCE ACT. 36. the cause of such reduction and satisfy the Court that it was ~~ not due to extravagance on his own part (Shirley v. Shirley and Wardropp, 1 S. & T. 317). Husband Husband excused from paying Alimony pendente lite. excused from paying j n fae f o u ow i n cases the Court refused to order the husband alimony , . pendente lite. to P a 7 alimony pendente lite : (a) The husband in his answer stated that he was an officer of the Bengal Army on sick leave in England, and that he had no means of his own ; the wife, however, was granted her costs for moving for an allotment (Gay nor v. Gaynor, 31 L. J., P. & M. 144). (b) The husband was a master pilot of the Bengal pilotage service on six months' leave of absence without pay, and was in receipt of no income and possessed of no property whatever, being dependent upon his friends for his living (Fletcher v. Fletcher, 2 S. & T. 434 ; 31 L. J., P. & M. 82). But the mere fact that the husband is temporarily out of employment at the moment when his answer to the petition for alimony is sworn will not relieve him from the liability to pay alimony pendente lite. For ' ' the Court looks to the average earnings of the husband for the last few years, and it assumes that in the current year his earnings will be about the same rate. It may happen that a man's income may not be derived from identically the same sources in the current year or in future years as in past years; but in ordinary life an income of about the same amount is generally derived from similar sources. In the case, for instance, of a professional income, a medical man may be presumed to derive as large an income in future years as in past, although not from, the same patients. In a case like the present, a master mariner may be able to swear that he was not at the date of his answer in command of any vessel, but the Court may reasonably presume that in the ordinary course of events he will soon obtain a command" (Thompson v. Thompson and Johnson, L. R., 1 P. 553; 37 L. J., P. & M. 33). (c) The husband was a minor, and his only source of income was that on the death or second marriage of his mother he would be entitled to a share in the residuary estate of his father, provided that he attained the age of twenty- ALIMONY. 211 one (Beavan v. Beavan, 2 S. & T. 652; 31 L. J., P. & M. 36. 166). (d) The husband had no income, and his only property was a legacy of 500?., which was not payable till nearly a year after the date of the petition for alimony (Brown v. Brown and Simpson, 3 S. & T. 217; 32 L. J., P. & M. 144). (e) The husband was in insolvent circumstances, and his only means were weekly wages of meat, drink, lodging and washing, and four shillings (Capstick v. Capstick, Furness, and Winder, 33 L. J., P. & M. 105). (f) The husband had an income of only 60?. per annum, and on separating from his wife had returned her the 707. which was the amount of her fortune (Coombs v. Coombs, L. E., 1 P. 218). (g) As a general rule, a wife cannot include in her husband's income any purely voluntary allowance made to him by his father or other person ; but there may possibly be circumstances under which the wife may be entitled to alimony out of income to which the husband has no strictly legal right (Haviland v. Haviland, 3 S. & T. 114; 32 L. J., P. & M. 67 ; cf. Moss v. Moss and Bushe, 15 "W. E. (Eng.) 532 ; cf. Bonsor v. Bonsor, (1897) P. 77 ; xiii Times L. E., p. 184). Ali motif/ pendente lite : practice of the Courts. Practice of the Court. See Eules of the English Divorce Court, Nos. 8194, and 189192. If the husband wishes to controvert the allegations in the wife's petition for alimony, he is bound, under Eule 84, to file an answer thereto on oath ; unless he does this, he cannot cross- examine or contradict the witnesses produced in support of the petition either on the application for alimony pendente lite, or on the hearing of the cause as to an allotment of permanent alimony (Constable v. Constable, L. E., 2 P. 17; 39 L. J., P. & M. 17 ; Hicks v. Hicks, 9 Ir. E. Eq. 175). And if the husband fails or refuses to make such answer, the Court may by peremptory order direct him to file an answer within a week (Snowdon v. Snowdon, L. E., 2 P. 200; 40 L. J., P. & M. 29). In order to save expense, the Court has allowed the wife to Affidavit by prove by affidavits the income of the respondent, who had filed wife. 212 THE INDIAN DIVORCE ACT. 36. Injunction to restrain husband from dissipating property. no answer to her petition for alimony, but it directed that notice should be given to the respondent of the filing of the said affi- davits and of the wife's intention to apply for alimony upon the income proved therein (Mumby v. Mumby, L. R., 1 P. 701; 38 L. J., P. & M. 72). A wife who has presented a petition for alimony has a right to subpoena her husband in order to examine him as a witness in support of her petition (Jennings v. Jennings, L. R., 1 P. 35 ; 35 L. J., P. & M. 12 ; Anderson v. Anderson, L. B., 1 P. 512; 37 L. J., P. & M. 64). In such a case the husband is adopted by the wife as her witness and she cannot cross-examine him. It is only when the husband has filed an answer which is evasive or which does not satisfy the wife that the latter is entitled to apply to the Court for an order directing the husband to attend on the hearing of the petition, when he may be cross-examined by her (Anderson v. Anderson, ubi supra ; Parker v. Parker, 26 L. T. 108 ; Clarkv. Clark, 31 L. J., P. & M. 32; Rule No. 86). "In an application for alimony pending suit, the wife is entitled to have the clear oath of the husband as to the net profits of his business, but it must be a very strong case to justify the Court in calling for documents which would disclose partnership accounts" (Jeune, J., Tonge v. Tonge, (1892) P. 51). When on the application of the wife the Court allows a com- mission to issue to examine witnesses abroad as to the husband's means, it will not order the husband to give security for the wife's costs of the commission ( Wilson v. Wilson and Haswell, 26 L. T. 107). The Court will not, in order to protect a wife's right to alimony, grant an injunction to restrain the husband from removing his property out of the jurisdiction of the Court before an order for alimony has been made* (Newton v. Newton, 11 P. D. 11; 55 L. J., P. & M. 13). Nor in a case of judicial separation has the Court power, even after an order for alimony pendente lite has been passed, to restrain the husband by in- junction from dealing with his property as he pleases (Carter * In suits for dissolution of marriage, if there is a subsisting order for payment of alimony pendcnte lite, the Court may possibly grant an injunction to restrain the husband from dissipating or getting rid of his property (Newton v. Newton, ubi supra ; Sidney v. Sidney, 17 L. T., N. S. 9 ; Newton v. Newton, (1896) P. 36 ; 65 L. J., P. & M. 15). ALIMONY. 213 v. Carter, (1896) P. 35; 65 L. J., P. & M. 48 ; Hyde v. Hyde, 36. 34 L. J., P. & M. 63). Arrears of alimony payable under an order of the Divorce Arrears of Cotirt, which have accrued due after the date of the receiving aumo . n y : . order and before proof, are not provable in bankruptcy ; bankruptcy, possibly they are not so provable even when they have accrued due before the receiving order (In re Hawlfins, (1894) 2 B. 25). A promise to release arrears and future instalments of alimony Promise to for a sum less than the arrears is invalid for want of considera- re ^ase arrears tion ; but if the husband has also promised to take no steps in instalments the future to vacate the order for alimony, there would be of alimony, sufficient consideration to support the promise to release such arrears and future instalments (Underwood v. Under ivood, (1894) P. 204 C. A.). A co-respondent who has been condemned in costs is liable Costs of for the costs of proceedings to obtain alimony (Gill v. Gill and P e . tltlon for Hogg, 33 L. J., P. & M. 43). 37, The High Court may, if it think fit, on any Power to decree absolute declaring a marriage to be dissolved, or nenT alimony. on any decree of judicial separation obtained by the wife, and the district judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable ; and for that purpose may cause a proper instrument to be executed by all neces- sary parties. In every such case the Court may make an order on Power to the husband for payment to the wife of such monthly weekly 7 or weekly sums for her maintenance and support as the payments. Court may think reasonable : 214 THE INDIAN DIVORCE ACT. 37. Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit. By sect. 17 of the Matrimonial Causes Act, 1857 (20 & 21 Yict. c. 85), the Court may upon an application for restitution of conjugal rights or for judicial separation decree such restitution of conjugal rights or judicial separation, " and where the applica- tion is l>y the wife, may make any order for alimony luhich shall l)e deemed just ." And sect. 32 of the said Act provides that : " The Court may, if it shall think fit, on any such * decree, order that the husband shall to the satisfaction of the Court secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable, and for that purpose may refer it to any one of the conveyancing counsel of the Court of Chancery to settle and approve of a proper deed or instru- ment to be executed by all necessary parties ; and the said Court may in such case, if it shall see fit, suspend the pro- nouncing of its decree until such deed shall have been duly executed ; and upon any petition for dissolution of mar- riage the Court shall have the same power to make interim orders for payment of money, by way of alimony or otherwise, to the wife, as it would have in a suit instituted for judicial separation." And the Matrimonial Causes Act, 1866 (29 & 30 Viet. c. 32), preamble and sect. 1, provides as follows : ' ' And whereas it sometimes happens that a decree for a dissolution of marriage is obtained against a husband who has no property on which the payment of any such gross or annual sum can be secured, but nevertheless he would be able to make a monthly or weekly payment to the wife during their joint lives : " Be it therefore enacted, &c. " 1. In every such case it shall be lawful for the Court to make an order on the husband for payment to the wife * "Such decree" means here a decree absolute for dissolution of marriage (sect. 31 of the Act ; Charles v. Charles, 36 L. J., P. & M. 17). ALIMONY. 215 duiing their joint lives of such monthly or weekly sums for 37. her maintenance and support as the Court may think ~ reasonable : Provided always, that if the husband shall afterwards from any cause become unable to make such payments it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order, wholly or in part, as to the Court may seem fit." As regards the power of the English Court to order a respon- dent-husband, who fails to comply with a decree for restitution of conjugal rights, to pay periodical sums of money to the wife, and its power to vary such orders, see the Matrimonial Causes Act, 1884 (47 & 48 Viet. c. 68), sects. 2, 4, and Eules 214218 of the English Divorce Court Eules. For the practice of the English Court, see Eules 84 88, 91103, 189192, 214218. " On any decree absolute " : Permanent alimony : According to the earlier decisions of the English Court, the order for, order for permanent alimony under sect. 32 of the Matrimonial a * te ^ decree Causes Act, 1857 (which applies only to suits for dissolution of marriage), must be embodied in the decree absolute, and any petition by the wife for permanent alimony in such suits must be made before the decree nisi has been registered, for if once such decree has been registered, the Court has no further juris- diction to entertain a petition for such alimony ( Vicars v. Vicars, 29 L. J., P. & M. 20; Charles v. Charles, 36 L. J., P. & M. 17; Winstone v. Winstone and Dyne, 2 S. & T. 246; 30 L. J., P. & M. 109). These were decisions upon the proper construction of sect. 32 of the Matrimonial Causes Act, 1857, which, as has been stated, applies only to suits for dissolution of marriage. Sect. 37 of the Indian Act applies also to decrees for judicial separation, and, according to the ratio decidendi of the above cases, the order for permanent alimony under this section must, in decrees for judicial separation, be incorporated in such decrees; if not, the Court has no jurisdiction to make a supplementary order for such alimony. Apparently, however, the previous leading case on this subject, Vicars v. Vicars, has been overruled (Bradley v. Bradley, 3 P. D. 47; 47 L. J., P. & M. 53). In the case last cited it was held, on the strength of the decision of the House of Lords in Sidney v. Sidney (36 L. J., P. & M. 73), that the Court has power, 216 THE INDIAN DIVORCE ACT. 37. under sect. 32 of the Matrimonial Causes Act, 1857, to make an order for the permanent maintenance of a wife after a decree absolute has been pronounced. Indeed, the learned judge who decided the case was of opinion that, though the order for per- manent alimony may be embodied in the judgment pronouncing the decree of dissolution, "there is nothing in the Act which requires it to be so, and that it is, in fact, more regular for the Court to pronounce a separate decree for maintenance, after it has made absolute the decree nisi for dissolution. If I had not the decision of the House of Lords to guide me, I should arrive at the same conclusion. The word ' on ' is an elastic expression, which, so far from excluding the idea of its meaning after, is more consistent with that signification than any other. In some cases the expression ' on ' may undoubtedly mean contempo- raneously or immediately after, and the question now before the Court is, whether there is anything from which it can be seen that the legislature used the word in the 32nd section in this restricted sense ? In some instances, as in questions of costs, it may be inferred that the legislature intended the Court to act at the time, that is, on the occasion of the facts being brought to its knowledge, and while these facts are fresh in its recollection; but no such reasons apply to the order for maintenance. That is to be the result of a separate investigation of facts, not neces- sarily before it when the decree of dissolution is pronounced. The investigation of the husband's means may be protracted, he may throw difficulties in the way of the Court obtaining the materials upon which to pronounce a just decision, or ordering a proper deed for the security of the wife being prepared. Where the husband is the petitioner, the decree which he asks may be suspended until he does what is right ; but where the wife is the petitioner, to suspend the decree until the husband does some- thing would delay the wife in obtaining redress as to the main object of the suit, because the respondent refuses to give her the means of obtaining a decision on a totally distinct and incidental question" (Hannen, J., Bradley v. Bradley, ul)i supra}. At the same time, " whatever meaning may be given to the word ' on ' in the Act of Parliament, it is very difficult to extend it to above a year ' On,' if not confined to the time of making the decree, must mean shortly after" (Jessel, M. E., Robertson v. Robertson, 8 P. D. at p. 96). It would appear, therefore, that the more regular course is for the Court to make an independent order for permanent alimony, after it has pronounced the final decree as to the main object of ALIMONY. 217 the suit. But, in suits for dissolution of marriage, the Court 37. has power, before the decree nisi has been made absolute, to order the husband to secure maintenance to the wife upon the decree being made absolute, and in the meantime to restrain him from dealing with his property so as not to leave sufficient security (Waterlwuse v. Waterhouse, (1893) P. 284; 62 L. J., P. & M. 115 C. A.). " On any decree absolute or on any decree of judicial separation obtained by the wife " : It is to be noticed that the Court has no power, under the Indian Divorce Act, to grant permanent maintenance to a wife who has obtained a decree for restitution of conjugal rights, with which the husband has refused to comply. The English Court has such power (see sect. 17 of the Matrimonial Causes Act, 1857, and the Matrimonial Causes Act, 18S4, ss. 2, 4). This section refers in terms only to a decree of judicial Decree of separation obtained by the ivife. Can the Court grant permanent maintenance to a wife when it is the husband who has obtained obtained by the decree of judicial separation ? According to sect. 17 of the the wife. Matrimonial Causes Act, 1857, any husband or wife may apply for judicial separation, and the Court may decree such judicial separation accordingly, "and, where the application is by the wife, may make any order for alimony which shall be deemed just." In a recent case before the English Court of Appeal it was argued that these words only enable the Court to grant the wife permanent maintenance when the decree of judicial separation has been obtained by her ; but it was held that they do not take away, or even negative, the jurisdiction which the English Divorce Court has inherited from the Ecclesiastical Courts of granting permanent alimony in a case where she is the respon- dent in a suit for judicial separation. For, as the English Divorce Court is, in all suits and proceedings other than pro- ceedings to dissolve any marriage, to act and give relief on principles and rules which, in the opinion of such Court, shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts acted and gave relief, subject to the express provisions of the Act, and as the Ecclesiastical Courts had jurisdiction to grant permanent maintenance to a wife whose husband had obtained a decree of divorce a mensd et thoro, the English Divorce Court has the like jurisdiction in the absence of any express provision in the Act to the contrary (Gooden T. Gooden, (1892) P. 1). In fact, the English Court 218 THE INDIAN DIVORCE ACT. 37. will refuse, as a general rule, to grant a decree of judicial separation to the husband, unless he makes a suitable provision for the wife (Prichard v. Prichard, 3 S. & T. 523; 33 L. J., P. & M. 158 ; Forth v. Forth, 36 L. J., P. & M. 122). "Although the Court, by a decree of judicial separation, gives a legal warranty to a husband and wife to live apart, still they remain husband and wife, and while they remain so the obligation also remains on the husband of contributing to the support of the wife " (Forth v. Forth, ubi supra"). Nor does the Court, as a rule, refuse to grant permanent alimony to a guilty wife whose husband has obtained a decree of dissolution of marriage (Kelly v. Kelly and Saunders, 3 B. L. K. 71). There is, therefore, no valid reason why a wife, whose husband has obtained a judicial separation, should not be granted permanent alimony, and possibly the Courts may, when the question arises, see their way to construing sect. 37 in the same way in which sect. 17 of the English statute of 1857 was con- strued by the Court of Appeal. They may hold that, in the absence of any words in the Act directly negativing such juris- diction, sect. 7 of the Act enables the Court to make the same provision for a wife, who is respondent in a suit for judicial separation, that the English Court would make under the like circumstances. Permanent alimony granted hy district judge. Permanent alimony, how secured. " And the district judge .... on the confirmation of any decree of his declaring a marriage to be dissolved " : In suits for dissolution of marriage an order for permanent alimony under this section cannot be made by a district judge until his decree in the suit has been confirmed by the High Court ; after such confirmation, the wife can apply to the district judge for an order for permanent alimony, but, before her petition is granted, due notice thereof should be given to the husband (Skinner v. Skinner, No. 13, Punjab Record, 1891). " Order that the husband shall, to the satisfaction of the Court, secure to the wife " : " The word ' secure' appears to be used in a particular way. It is contrasted with payment. . . . Therefore I think that the intention of the legislature was that the gross or annual sum should not be ordered at once to be paid over to the wife, but should be secured, and being secured should bo paid to her from time to time ; that would give a meaning to the word ALIMONY. 219 ' secure' as contrasted with '^cn/'" (Jessel, M. E., Medhy v. 37. Medley, 7 P. D. 122). The usual way in which such gross or annual sum. is secured is by the personal bond of the husband, with or without sureties, or by deed of settlement (Keats v. Keats and Montezuma, 28 L. J., P. & M. 57; Bent v. Bent and Footman, 30 L. J., P. & M. 175; Lister v. Lister, 15 P. D. 4). Charging order on husband's property. As a general rule, the Charging Court will not make an order charging the husband's property order on & * J husband's with the payment of permanent alimony or maintenance. property. The order passed by the Ecclesiastical Courts in such cases was " that the husband, regard being had to his circumstances at the time of making the order, should make his wife a certain allowance. Those Courts dealt with the question as if the husband and wife were living together, and they considered what proportion of the income would fall to the lot of the wife. If the husband's property was afterwards increased, the Court exercised the power of increasing the alimony, and if it was diminished, of diminishing the alimony, so that the fortunes of the wife followed those of the husband. If this Court directly or indirectly charged the fortune of the husband with the pay- ment of the alimony, it would tie his hands and prevent him from entering into trade or using it in any way for the improve- ment of his income, and such an order would have a totally different effect from any of the orders made by the Ecclesiastical Courts " (Hyde v. Hyde, 34 L. J., P. & M. 63 ; 4 S. & T. 80 ; followed in Fowle v. Fowle, I. L. E., iv Calc. 260; Carter v. Carter, (1896) P. 35; 65 L. J., P. & M. 48). But the Court has the power of charging the husband's pro- perty with the payment of permanent alimony, and has occa- sionally exercised such power. Thus, the Court directed a deed to be executed by the husband whereby the payment of the annuity ordered to be paid as permanent alimony was secured on such fixed property as he possessed, and by his personal covenant (Fisher v. Fisher, 31 L. J., P. & M. 1 ; 2 S. & T. 414). And in another case the husband was ordered to execute a deed charging the goodwill and stock-in-trade of his business with the payment of Es. 250 per mensem by way of permanent alimony (Ord v. Ord, 5 B. L. E., App. 34). "Where, under the terms of an instrument in the form of a settlement but proved as a will, real and personal estate was given to trustees upon trust for the sole use and benefit of the 220 THE INDIAN DIVORCE ACT. 37. Injunction to restrain husband from dealing with his property. respondent (son of the settlor), his heirs, executors and adminis- trators, to bo assigned and transferred to him as soon as con- veniently might be after the settlor's death, subject to a proviso that if the respondent should die unmarried and without issue his share should go over, and also that the property assigned in trust for the respondent was to be held by the trustees upon the express condition that he should not, during his life, have power to mortgage, sell, alien, charge or encumber any part of the pro- perty, and that in that event the trustees should stand possessed of such property in trust for other persons, it was held by the Court of Appeal that the respondent took an absolute interest in fee simple under the instrument, that the condition of forfeiture in case of charge or alienation was therefore void as repugnant, and that, accordingly, he could be ordered to secure to his divorced wife an annual sum for maintenance by a charge on his interest under the instrument (Corbett v. Corbett, 14 P. D. 7). Injunction to restrain husband from dealing with his property. Where the Court orders a husband to secure a gross or annual sum of money to his wife by way of permanent maintenance, it may also by injunction restrain him in the meantime from dealing with his property so as not to leave sufficient security (Sidney v. Sidney, 17 L. T., N. S. 9; Waterhouse v. Waterhouse, (1893) P. 284 ; 62 L. J., P. & M. 115 ; Newton v. Newton, (1896) P. 36; 65 L. J., P. & M. 15). But such injunction will not be made before an order for alimony has been passed, merely quia timet, to restrain a respondent from dealing with his property (Newton v. Newton, 11 P. D. 11). Nature of allowance. " Such gross sum or such annual sum " : "Under the procedure in the Divorce Court there are four distinct sums of money which may be ordered to be paid, and which are very different the one from the other in some of their qualities. First, there is the well-known alimony pendente lite. There is, secondly, alimony of a permanent character, which is directed to be paid upon a judicial separation being pro- nounced. Thirdly, there is the gross or annual sum which, upon the dissolution of the marriage, the Court is authorized by the Act of 1857, if it thinks fit, to direct to be paid by the hus- band to the wife ; and, lastly, there are the monthly or weekly payments, which, under the Act of 1866, the Court may order ALIMONY. 221 upon a dissolution of the marriage, in the event of its not finding 37. the husband to be capable of paying either the gross sum or the annual sum under the statute of 1857 " (Fry, L. J., Harrison v. Harrison, 13 P. D. 180). As regards these different provisions for the wife, it has been Permanent held that permanent alimony granted to a wife upon a judicial alimony is separation is inalienable by her. "The Court which ordered it -when granted never lost control over it, and she could not by assignment or after decree 4' ' "1 ' * 1 otherwise deprive herself of her right to it so long as she and J u 1 ,S ia her husband lived separate and apart from each other. This doctrine is based on the old ecclesiastical law, and was recog- nized and acted upon in In re Robinson, 27 Ch. D. 160 " (Lindley, L. J., Watkins v. Watkins, (1896) P. 222 ; 65 L. J., P. & M. 175). The same doctrine applies to the permanent allowance ordered . . to be paid to a divorced wife under sect. 1 of the Act of 1866, which is personal to herself and cannot be assigned or released by her without the sanction of the Court. "A divorced wife need not enforce an order for her own maintenance unless she pleases, and she may release and perhaps assign her right to arrears.* But it does not follow that she can bind herself not to enforce payment in future, nor that she can assign her right to future payments. I do not say that an order under sect. 1 of the Act of 1866 for permanent maintenance cannot be discharged by the Court with the consent of the divorced husband and wife, even if the man is able to pay it ; but until such an order is discharged the divorced wife cannot, in my opinion, prospec- tively deprive herself or be deprived of the benefit of the main- tenance which the Court has ordered to be paid to her" (Lindley, L. J., Watkins v. Watkins, uli supra}. On the other hand, a gross or annual sum of money secured Not so after to a wife upon the dissolution of her marriage becomes to all decree abso- intents and purposes her own permanent property subject to any 80 i u ti n O f restrictions which may be imposed upon it by the deed to be marriage executed under the order of the Court and approved by the un ^ ess so GX Drossl v Court. Such deed may contain a provision against alienation provided. or anticipation by the wife, but in the absence of any such pro- * But in the recent case of Underwood v. Underwood ((1894) P. at p. 213), A. L. Smith, L. J., suggests that a wife can for proper con- sideration bind herself not to insist upon the monthly or weekly payment ordered to be made to her. 222 THE INDIAN DIVOECE ACT. 37. vision she would be at liberty to alienate or assign, and the Court would have no further control over such property (Harri- son v. Harrison, 13 P. D. 186). The Indian Divorce Act makes no distinction between the kinds of permanent provision which may be made for a wife upon judicial separation and upon dissolution of marriage ; in either case the Court may order a gross or annual sum to be secured to her, or it may direct payment to her of monthly or Distinction weekly sums of money. But ' ' there is a substantial difference between permanent alimony which is ordered after a judicial allowance separation, and maintenance which is ordered after a divorce. after There is, too, a substantial difference between the position of a (i) judicial w y? e w ^ o - g i u _ children. may, if it think fit, order such settlement as it thinks reasonable to be made of such property or any part thereof, for the benefit of the husband, or of the children of the marriage, or of both. Any instrument executed pursuant to any order of the Court at the time of or after the pronouncing of a R. R 242 THE INDIAN DIVORCE ACT. 39. Settlement of damages. Decree of dissolution of marriage. decree of dissolution of marriage or judicial separation, shall be deemed valid notwithstanding the existence of the disability of coverture at the time of the execution thereof. The Court may direct that the whole or any part of the damages recovered under section thirty-four shall be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife. Sect. 45 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), provides that : ' ' In any case in which the Court shall pronounce a sentence of divorce or judicial separation for adultery of the wife, if it shall be made to appear to the Court that the wife is entitled to any property either in possession or reversion, it shall be lawful for the Court, if it shall think proper, to order such settlement as it shall think reasonable to be made of such property or any part thereof, for the benefit of the innocent party, and of the children of the marriage, or either or any of them." And sect. 6 of the Matrimonial Causes Act, 1860 (23 & 24 Viet. c. 144), provides that : " Any instrument executed pursuant to any order of the Court made under the said enactment " [that is, under sect. 45 o/20 & 21 Viet. c. 85], "before or after the passing of this Act, at the time of, or after the pronouncing of a final decree of divorce or judicial separation, shall be deemed valid and effectual in the law, notwithstanding the existence of the disability of coverture at the time of the execution thereof." See Rules of the English Divorce Court, Nos. 95 103, and 204. " A decree of dissolution of marriage " : This includes a decree nisi, for (a) whenever a decree absolute alone is meant, it is expressly provided that the power given to the Court is to be exercised only when the decree has been made absolute, or, in the case of a decree of a District Court, the decree has been confirmed by the High Court (see sects. 37, 40, 43, 44) ; (b) the power given to the Court is one that can be exercised as well upon a decree of judicial separation as upon a decree of dissolution; and (c) an instrument executed " after the pro- nouncing of a decree of dissolution of marriage shall be deemed to be valid notwithstanding the existence of the disability of cover- ture at the time of the execution thereof." But where property is settled on a wife, by instrument other SETTLEMENTS. 243 than the marriage settlement, to her separate use ivithout power 39. of anticipation, the Court has no power to make any order for ~ settlement of such property until the wife becomes discovert, i.e., till the decree nisi has been made absolute (see infra}. " Decree of judicial separation " : Decree of judicial It is to be noted that it is only when the decree of judicial separation. separation is made on the ground of the wife's adultery that the Court can make an order under this section. " The Court may order such settlement " : Power of Court to order Under this section the Court has no power to deal with ante- settlement. nuptial or post-nuptial settlements; if, therefore, the wife is entitled to property under such settlements, the Court can inquire into the existence of, and deal with, such property only under sect. 40, that is to say, only after a decree absolute for dissolution of marriage or a decree of nullity of marriage, or, in the case of a District Court, after its decree for dissolution or nullity of marriage has been confirmed by the High Court. The Court cannot, therefore, upon a decree of judicial separa- tion, make any order as to property to which the wife is entitled under a marriage settlement (see Norrisy. Norris, 1 S. & T. 174; 27 L. J., P. & M. 172 ; Seatte v. Seatle, 30 L. J., P. & M. 216). " Wife is entitled to any property" : As has been already observed, in no case can the Court, under this section, deal with property to which the wife is entitled under an ante-nuptial or post-nuptial settlement. Such property can only be dealt with under sect. 40. If the property to which the Wife entitled, wife is entitled is settled on her, by instrument other than a under instru- ment other marriage settlement, to her separate use without power of antici- than marriage pation, the Court cannot, upon a decree of judicial separation, settlement, make any order for the settlement of such property or any part ^^ r ^ thereof for the benefit of the husband, or of the children of the power of marriage, or of both ; nor, in a suit for dissolution of marriage, anticipation, can it make any such order until the wife becomes discovert, that is to say, until after the decree nisi has been made absolute (Michell v. Michell, (1891) P. 208 ; 60 L. J., P. & M. 46; Norris v. Norris, 1 S. & T. 174; 27 L. J., P. & M. 172 ; Midwinter v. Midwinter, (1892) P. 208). But in such a case, although the Court cannot make any order for the settlement of such property until after the decree R2 244 THE INDIAN DIVORCE ACT. 39. Property to which wife is entitled absolutely. Spes succes- sioms. absolute, it can, before the decree nisi is made absolute, in any case where it is fairly and reasonably apparent that there is a necessity for so doing, direct an inquiry as to what property such wife is entitled to, in order that the Court may be in a position to order a settlement to be made of the wife's property as soon as the final order is pronounced. Before doing so, how- ever, the Court will direct the husband to give security for the costs of the inquiry, in case no final decree should be made. And the settlement should not be ordered by the decree absolute itself, but by a subsequent order, though the latter may be made immediately after the decree absolute has been pronounced (Midwinter v. Midwinter, iibi supra], If, however, the wife, in addition to property which she is restrained from anticipating, is entitled to property which she can do what she likes with, the Court, while refraining from dealing with the property subject to the restraint, will compel her to re-settle property which is at her absolute disposal (Michell v. Michell, ubi supra, explaining Swift v. Swift, 15 P. D. 118; (1891) P. 129). If the wife is possessed of property which is at her absolute disposal, the Court, on pronouncing a decree of dissolution of marriage or of judicial separation on the ground of her adul- tery, has an absolute discretion to make any order with reference to the settlement of such property for the benefit of the husband, or of the children, or of both. So, where a wife was entitled to the interest of 4,000?. vested in trustees for her life, with a power of appointment amongst her children, and her husband obtained a decree of judicial separation on the ground of her adultery, the Court ordered that the trustees of the wife should pay over a moiety of her income to trustees named by the husband to be applied by them to the maintenance and education of the children of the mar- riage, but declared that it had no jurisdiction to deal with her power of appointment (Seatle v. Seatle, 30 L. J., P. & M. 216). But a mere spes successions, or a possibility of income, is not " property " within the meaning of this section. Where, therefore, the wife, under the marriage settlement of her father, was entitled to a sum of money after his death in the event of his not otherwise disposing of it, the Court held that this possibility of succeeding to her father was not property which could be dealt with under this section (Stone v. Stone and Brownrigg, 33 L. J., P. & M. 95; cf. Parsons, In re, Stocldey V. Parsons, 45 Ch. D. 51 ; 59 L. J., Ch. 666). SETTLEMENTS. 245 So, where, under the will of her father, the respondent had a 39. life interest to her separate use in certain property, unless she, being discovert, should do or suffer any act or thing, or any event should happen, whereby the same income or any part thereof should, either voluntarily or involuntarily, be aliened or encumbered, or be receivable otherwise than by herself per- sonally, in which case the trust for her benefit was to be void, and such annual income was to be applied for the benefit of the respondent or her children at the discretion of the trustees, the Court, while ordering a settlement to be made out of the respon- dent's life income, derived under her father's will, in favour of the husband and his children, refused to extend the order to any moneys the trustees in their discretion might think proper to pay to her in case the substituted trust came into operation by reason of such .'order, a mere possibility of income not being property in reversion within the meaning of sect. 45 of 20 & 21 Viet. c. 85 (Milne v. Milne and Fowler, L. E., 2 P. 295). After a decree nisi for dissolution of the marriage on the Property ground of the wife's adultery, the respondent became entitled co . 1 ? m ? * to a sum of 500?., which was the only property she possessed, decree nisi. The Court refused to order, under the 45th section of 20 & 21 Viet. c. 85, that a part of this sum should be applied to the re- payment of costs incurred by the husband in the suit, although she had been guilty of gross misconduct and had increased the costs of the suit by an unfounded counter-charge against the husband, but stated that, if the respondent had been possessed of a considerable sum, it would have compelled her to repay to her husband the costs which he had incurred (Car stairs v. Carstairs, Billson and Dickenson, 3 S. & T. 538 ; 33 L. J., P. & M. 170). " For the benefit of the husband or of the children of the For the marriage, or of both": Under this section the Court can order a settlement to be children, or made for the benefit of the husband or of the children of the marriage, or of both, but it cannot order any part of the pro- perty of a guilty wife to be settled on her. It may, however, refuse to make any order as to such property, and so leave it in her possession (Bacon v. Bacon and Bacon, 29 L. J., P. & M. 125; 2 S. & T. 86). So, where, on a dissolution of marriage on the ground of the wife's adultery, the husband petitioned that certain jewellery belonging to her should be sold and a settlement made of the proceeds, giving her a life interest in the income arising from 2-16 THE INDIAN DIVORCE ACT. 39. Court will not make allowance to husband variable, or limit it dum solus. Court will not enter into debtor and creditor ac- count between husband and wife. the investment of these proceeds, with remainder to himself, and it appeared that his income was substantial and his wife's only 111. a year, the Court refused to order any settlement (Schofield v. Schofield, 64 L. T. 838). The Court, in ordering a settlement under sect. 45 of 20 & 21 Viet. c. 85, refused to make the allowance to the husband variable according to the possible fluctuation in the value of the wife's property, or to limit it till such time as he should remain unmarried (Midwinter v. Midwinter, (1893) P. 93). In ascertaining the amount of an allowance to be settled by the wife upon the husband, the Court declined to go into a minute debtor and creditor account of the sums spent by the husband or wife on household expenses and the like, but directed that a deduction should be made from the amount of the annual payment to the husband until a loan of 300?. , which he had ob- tained from his wife, was repaid ; and also took into considera- tion the contingency of the husband being able to acquire an income by his own earnings (Swift v. Swift, (1891) P. 129 ; 60 L. J., P. & M. 14; see also Michell v. Michell, (1891) P. 208, in which Swift v. Swift is explained). In ordering a settlement under this section, the Court will take into consideration the costs with which the wife will be burdened in defending the suit, for which her husband is not strictly liable (Bacon v. Bacon and Bacon, 29 L. J., P. & M. 125). " Damages recovered under section 34 shall be settled " : See note to sect. 34, ante, pp. 195 199. Inquiry into existence of ante-nuptial or post- nuptial settlements. 40. The High. Court, after a decree absolute for dissolution of marriage, or a decree of nullity of marriage, and the District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed, may inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for SETTLEMENTS. 247 the benefit of the husband or the wife, or of the children _ 40. (if any) of the marriage, or of both children and parents, as to the Court seems fit : Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children. The Matrimonial Causes Act, 1859 (22 & 23 Viet. c. 61), s. 5, provides that ' ' The Court after a final decree of nullity of marriage or dissolution of marriage may inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or a portion of the property settled either for the benefit of the children of the marriage or of their respective parents as to the Court shall seem fit." The Matrimonial Causes Act, 1878 (41 Viet. c. 19), s. 3, extends the power given by sect. 5 of 22 & 23 Viet. c. 61, and provides that the Court may act under that section notwith- standing that there are no children of the marriage. See Eules of the English Divorce Court, Nos. 95103 and 204. "Inquiry into existence of ante-nuptial or post-nuptial settlements" : A dissolution of marriage does not per se create a forfeiture Dissolution of of the interests even of the guilty party under a marriage settle- marriage does ment of the other's property (Fitzgerald v. Chapman, 1 Ch. D. create*" * 563; 45 L. J., Ch. 23; Burton v. Sturgeon, 2 Ch. D. 318; forfeiture. 45 L. J., Ch. 633). " May inquire " : Inquiry by In order to set the Court in motion, it is necessary to file a on i y on separate petition praying for a variation of the marriage settle- petition, ment (see rule 95 of the English Divorce Court Eules). Such petition must bear a Court fee stamp of Es. 20 (Indian Court fee Court Fees Act, 1870, 2nd Sch., Art. 20), and must be duly stam P- signed and verified by the petitioner or some other competent person (sect. 47, posi}. Ordinarily, such petition should be signed by the petitioner himself or herself ; but if it is shown that the petitioner does desire the Court to act under this section, 248 THE INDIAN DIVORCE ACT. 40. Contents of petition. When to be filed. Service of petition. but that his or her signature cannot be obtained without con- siderable delay, the Court may allow the petitioner's solicitors to sign the petition (Boss v. fioss, 1 P. D. 20; 51 L. J., P. & M. 22). For a form of petition, see the Schedule of Forms, No. 20 (and also Boynton v. Boynton, 30 L. J., P. & M., at p. 157). The petition should give full information as to the means of the applicant (Webster v. Webster and Mitford, 32 L. J., P. & M. 29), and the settlement should be brought before the Court upon affidavit (Home v. Home, 30 L. J., P. & M. 200). When petition should be filed. When it is desired to obtain an order varying a settlement, a petition for dissolution of marriage should contain a prayer respecting such settlement, and before the decree nisi is pronounced a separate petition for an order as to the application of the settled property should be filed. In order to allow this to be done, the Court will suspend the decree nisi (Porter v. Porter, 30 L. J., P. & M. 112, note). The petition may, however, be filed at any time before the decree nisi is made absolute. And even if the petition is filed after the decree absolute the Court will not refuse to entertain it if the delay is not unreasonable. So, where the petition was filed shortly after the respondent and co-respondent had inter- married, and about four months after the decree had been made absolute, the Court held that, under the circumstances of the case, the delay was not a bar to the petition, especially in view of the fact that the subsequent marriage of the respondent was not with a person ignorant of the facts of the case, but with the co-respondent, "who was cognizant of all the facts, and who knew he was contracting marriage with a person liable to be affected by the order of this Court varying her settlement" (Benyon v. Benyon and O'CaUaghan, 1 P. D. 447; 45 L. J.. P. & M. 96 ; cf. Marsh v. Marsh, 47 L. J., P. & M. 34 ; in app. 47 L. J., P. &M. 78). But, though the petition for variation of marriage settlements should ordinarily be filed before the decree nisi is pronounced, the Court has no jurisdiction to make any inquiry or order until after the decree has been made absolute (Home v. Home, 30 L. J., P. &M. 111). Service of petition. Every petition under this section should be served personally on the husband or wife, as the case may be, and on the person or persons who may have any legal or SETTLEMENTS. 249 beneficial interest in the property in respect of which the appli- 40. cation is made, unless the Court shall direct any other mode of service, or dispense with service of the same on them or either of them (Eule 97 of the English Divorce Court Eules ; and see sect. 50, post). If, however, the petition for dissolution of marriage contains a prayer for an order under this section and has been served upon the respondent, who has not appeared, notice of the application need not be given. But, if the petition for dissolution contains no such prayer, a copy of the petition for an order under sect. 40, as well as notice of the intended application for an order, should be served upon the respondent who has not appeared in the suit (Home v. Home, 30 L. J., P. & M. 200; Lawrence v. Lawrence, 32 L. J., P. & M. 124). Who may apply for an order. Ordinarily it is the petitioner in Who can the suit who alone can apply, after the final decree, for an order a PP^y f r . order v&rvin ^ under this section. If, however, the petitioner dies after the settlements. final decree, and there are children of the marriage which has been dissolved or annulled, the guardian of the children can Guardian of apply, on their behalf, for an alteration of the terms of the children. settlement (Ling v. Ling and Croker, 4 S. & T. 99 ; 34 L. J., P. & M. 52). But if the petitioner has died before the decree nisi has been made absolute or confirmed, as the case may be, the suit abates, and the guardian of the children cannot apply to have the decree made absolute or confirmed, so as to enable him to subsequently apply for an order under this section (Grant v. Grant, 31 L. J., P. & M. 174; cf. Stanhope v. Stanhope, 11 P. D. 103). If the guardian of the children happens to be also the execu- tor or administrator of the petitioner, who has died after the final decree, he must apply in his capacity of guardian of the children, and not as executor or administrator of the petitioner (Smithev. Smithe, L. E., 1 P. 587). For sect. 40 was intended for the benefit of living persons, and not for the benefit of the estate of a deceased petitioner. If, therefore, the petitioner has died before any order has been made under the section, and there are no children of the marriage, the Court will refuse to entertain an application by the petitioner's executor for an order to vary a settlement for the benefit of the petitioner's estate. And if, in a marriage settlement, there is an interest in remainder in default of issue, after the death of the parties to the marriage, the persons representing that interest cannot, upon the death of the petitioner, seek to benefit at the 250 THE INDIAN DIVORCE ACT. 40. Settlor. Guilty wife. Trustees of settlement. After decree of nullity of marriage. expense of the guilty party by applying for an order under sect. 40 (Thomson v. Thomson, (1896) P. 263; 65 L. J., P. & M. 65, and, in app., 80). Nor is the settlor entitled to apply, after the death of the petitioner and in the absence or after the death of any issue of the marriage, to be relieved from the covenants of the settle- ment : the Court has power to alter the settlement only for the benefit of the husband or wife or of the children, or of both of them, and if the petitioner and the children of the marriage die, the power of the Court is at an end, and the settlor must fulfil such covenants as he has entered into for the benefit of the respondent (Sykes v. Sykes and Smith, L. E., 2 P. 163; 39 L. J., P. & M. 52). Sect. 40 should be read in connection with sect. 39, and " it would be a gross perversion of the meaning of the legislature if, at the prayer of an adulterous wife, the Court should deprive an innocent husband of any interest he takes under a settle- ment, even though it be for the benefit of the children of the marriage " (Thompson v. Thompson, 32 L. J., P. & M. 39). On the same principle, the Court will refuse, at the prayer of a guilty husband, to deprive an innocent wife of her interest under the settlement. The trustees of a marriage settlement can only be heard in support of the settlement ; they are not entitled to apply for an order to vary it, nor can they be heard in support of an applica- tion to vary it (Corrance v. Corrance, L. E., 1 P. 495 ; 45 L. J., P. & M. 44). Application for permanent maintenance and for variation of settlement. Upon a dissolution of marriage at her instance, the wife is, apparently, entitled to apply both for permanent main- tenance under sect. 37 and for an alteration of the marriage settlement under sect. 40 (Soivden v. Sowden, 15 W. E. (Eng.) 90). " Dissolution of marriage or nullity of marriage " : It will be noticed that the Court has no power to deal with settlements after a decree of judicial separation (Gandy v. Gandy, 7 P. D. 168 ; 51 L. J., P. & M. 41). When a marriage is annulled, and there are no children of the union, the Court will order the property of the parties to be reconveyed to each of them respectively freed from the trusts of the settlement upon the alleged marriage (A. f. c. M.'y. M., 10 P. D. 178 ; 54 L. J., P. & M. 31 ; Leeds v. Leeds, 57 L. T. 373). SETTLEMENTS. 251 But if there are any children of the union between the parties 40. due provision must be made for them (Langivorthy v. Langworthy, 11 P. D. 85; 55 L. J., P. & M. 33). " The High Court and the District Court " : The power to act under this section can be exercised only by that High Court or District Court which has pronounced the decree of dissolution or of nullity of marriage. Except so far that orders under sect. 40 are appealable, no Court, other than the Court which pronounced the decree in the suit, can inquire into the existence of settlements or make orders with reference to the application of the settled property. Where, therefore, a marriage had been declared null and void by a decree of the Court of New Zealand, the Court of Divorce in England refused to entertain a petition for variation of the marriage settlement, although both parties desired that the settlement should be varied by the English Court (Moore /. c. Bull v. Bull, (1891) P. 279; 60 L. J., P. & M. 76). "After a decree . . . may inquire " : While an inquiry is pending under this section the Court will Injunction by injunction, if necessary, restrain the husband or wife, as the * restrain case may be, from disposing of the settled property ( Watts v. property Watts, 24: W. E. (Eng.) 623). pending And it will do so even before the order for variation of the ""H^T- settlement has been made (Noakes v. Noakes and Hill,* 4 P. D. 60; 47 L. J., P. & M. 20). " Ante-nuptial or post-nuptial settlements " : What are settlements ? All deeds, whereby property is settled upon a woman in her character as wife, and to be paid to her while she continues a wife, come within the scope of this section, and the Court has power to deal with them. An ordinary deed of separation, Deed of whereby the husband covenants to pay the wife an allowance, se P aratl o n - is a post-nuptial settlement within the meaning of this section (Worsley v. Worsley and Wignall, L. E., 1 P. 648; 38 L. J., P. & M. 43). * In Newton v. Newton (11 P. D. 11) the learned judge, who decided Noakes v. Noakes and Hill, stated that in that case an order for vari- ation of the settlement had been previously obtained. This appears to be a mistake, for the report (4 P. D. 60) states that the time for obtaining an order for variation of the settlement had not arrived when the application was made for the injunction. 252 THE INDIAN DIVORCE ACT. 40. A deed of separation which does not limit the liability of the ~ husband to pay an allowance to the wife only so long as she remains chaste is not rendered void by the subsequent adultery of the wife or by a decree of dissolution of marriage on account of such adultery. In such an event, the husband, if he wishes to be relieved of his liability, must apply, after the decree absolute, for an order under sect. 40. The Court may, then, either deprive the guilty wife of the whole of the income under the deed, or reduce the amount of the allowance, or refuse to interfere at all, according to the circumstances of the case (Clifford v. Clifford, 9 P. D. 76 ; 53 L. J., P. & M. 68; Saunders v. Saunders, 69 L. T. 498).* On the other hand, where the mar- riage has been dissolved on account of the husband's misconduct, but the wife has covenanted in the deed of separation not to sue for an allowance other than that agreed upon, the Court will not so vary the deed as to give her an increased allowance, unless the misconduct of the husband has been so gross as to altogether disentitle him to rely upon the deed (Morrall v. Morrall, 6 P. D. 98; Bishop v. Bishop, (1897) P. 138; cf. Gandy V. Gandy, 7 P. D. 168 C. A.). But the mere fact that the petitioner has accepted an allow- ance from the respondent under a deed of separation will not preclude him or her, after a decree absolute for dissolution of marriage, from applying for an increased provision out of the income of the respondent (Benyon v. Benyon and CaUaghan, 1 P. D. 447). And, if the husband has covenanted to pay his wife an annuity, the Court has power under this section to reduce the amount thereof after a decree absolute has been pronounced in his favour (Jump v. Jump, 8 P. D. 159). An absolute assignment by a wife to her husband, during the marriage, of freehold property is not a "settlement" within the meaning of this section (Chalmers v. Chalmers, 68 L. T. 28). " Make such, orders .... as to the Court seems fit " : Discretion of As expressly provided by this section, the Court is bound not Court. ^o make any order for the benefit of the husband or wife, or both of them, at the expense of any child or children of the marriage. At the same time, the Court will not, at the instance of the guilty party, deprive the innocent party of his or her interest under the settlement, althoiigh to do so might be for the benefit * See also pp. 235237, ante. SETTLEMENTS. 253 of the children (Thompson v. Thompson and Barras, 32 L. J., 8 40. P. & M. 39 ; 2 S. & T. 649). For the general principle on which the Court acts in varying settlements is to put the innocent party, so far as it is practic- able, in the same pecuniary position as he or she was before the marriage was dissolved (Benyon v. Benyon and O'Callaghan, 1 P. D. 447 ; Maudslay v. Maudslay, 2 P. D. 256). If, therefore, the marriage is dissolved at the instance of the husband, and it is the wife who is possessed of the property, the Court will put the innocent husband in possession of a considerable proportion of the joint income. But if, previously to the institution of the suit for dissolution of marriage, the parties had been living apart under a deed of separation whereby the wife allowed the husband a certain sum per annum, and the husband was not in enjoyment of her income beyond such allowance, the Court will merely allot him a sufficient main- tenance, having regard to his income and the position of the parties generally. Primd facie, the amount which he has agreed to accept under the deed is a sufficient allowance, but the husband is not thereby precluded from praying for an increased allowance. For ' ' he may have been content with a small portion of the wife's income while she retains the character and position of his wife, and at the same time may reasonably object to an adulterer enjoying her property and the income thereof in her society. It would be of evil example, and morally dangerous, if the wife's pecuniary position could not be altered by reason of her adultery subsequent to her husband's acceptance of an allowance " (Benyon v. Benyon and Callaghan, ubi supra}. Provided that the interests of the children are not adversely affected, the Court has full and absolute discretion to make such order under this section as to the Court seems fit, nor will the Court of Appeal interfere with the exercise of such discretion unless some distinct miscarriage is shown, although, in point of fact, the latter Court might not, if the matter had come before it originally, have made exactly the same order. This discretion must, however, be exercised judicially, and it is the duty of the Court to consider whose fault it is that the marriage has come to an end, not with a view of punishing the guilty party, but for the purpose of seeing what provisions it is reasonable to make (Wigney v. Wigney, 7 P. D. 177; 51 L. J., P. & M. 60 C. A.). ' ' In applying this section to the circumstances of any parti- Consideration cular case, the first consideration will be this : What is the or Court, pecuniary change operated by the wife's criminality ? The Court 254 THE INDIAN DIVORCE ACT. 40. Conduct of both parties to be con- sidered. Court will not exercise power for will look at the probable pecuniary position which the parties and their children would have occupied if the marriage which the settlement contemplated had continued a binding union, and the parties had lived in harmony together upon their joint in- comes. If this union has been broken, and the common home abandoned by the criminality of one without fault in the other, it seems just that the innocent party should not, in addition to the grievous wrong done by the breach of the marriage vow, be wholly deprived of means to the scale of which he may have learnt to accommodate his mode of life. Nor, in viewing the matter on the other side, does it seem either just or equitable that funds, which were intended, at the time of the marriage, for the use of both, should be borne off by the guilty party, and perhaps transferred to the hands of the adulterer as the dowry of a second marriage. The interests of society point in the same direction. . . . The relative amounts contributed by each party, the conduct of each, the total amount of their joint income, the relation it bears to the requirements of the parties, and * their respective prospects of increased income, are all elements to be considered" (March v. March and Palumbo, 36 L. J., P. & M. 28; approved by the full Court at p. 65). Nor is it only the conduct of the respondent that must be con- sidered : regard must also be had to that of the petitioner. For it may happen that, though " the break-up of the married life was caused immediately by the misconduct of the respondent, its stability " may have been "undermined by the withdrawal of the petitioner's affections. It was a subject of fair comment that, but for the extravagance of the petitioner, and the conduct which made her the object of her husband's not unreasonable suspicions, the common fund would have been more than ample." And the Court will further take into consideration the fact that the petitioner has, during the marriage, received a large sum of money, and also the future of the respondent and the available means which would be left to him or her (Chetwynd v. Chetwynd, 35 L. J., P. & M. 21). The power conferred upon the Court by this section will not be exercised by it for any collateral purpose. Where, therefore, * But where the husband (who was the petitioner in the suit) held office in Her Majesty's household, and there was great probability of his promotion, the Court, in acting under this section, refused to take into account such probable promotion and consequent increase of salary (Tuppcr v. Tuppcr, 62 L. T. 665). SETTLEMENTS. 255 after a decree nisi had been made on the prayer of the husband 40. for a dissolution of his marriage, the respondent, under cover of ,, , 7 an order of the Court for access to her child, took possession of purpose, it, and removed it beyond the jurisdiction of the Court, the Court refused to alter the settlement made on the marriage of the parties, so far as related to the property settled on behalf of the respondent, in such a manner and for the express purpose to compel the respondent to submit to the authority of the Court, and to restore the child to the custody of the petitioner (Symonds v. Symonds and Harrison, L. B,., 2 P. 447). Interests of third parties in settled property . Until a decree has Interests of been made for dissolution of marriage, there is no Us pendens tlurcl parties, with reference to the property included in the marriage settle- ments. Third parties can, therefore, acquire an interest in such property before the decree of dissolution is pronounced, and the Court has power, under this section, to make an order in favour of the interests of such parties, provided they were created before the filing of the petition for variation of the marriage settlement. And, as a rule, the Court is bound to respect the rights of third parties created before the petition for variation of settlements is presented. Where, therefore, a respondent had, before the decree nisi for dissolution of his marriage, charged his interest in the settlement with payment of his solicitor's costs of suits, the Court, under the circumstances of the case and with special reference to the facts that the petitioner was in possession of a considerable income altogether independent of her husband, that the husband had no means of his own with which to pay such costs, and that the solicitors had not been guilty of any miscon- duct, held that the charge was valid, and that the respondent's interests in the settlements could not be extinguished without providing for this charge (Wigney v. Wigney, 7 P. D. 228; 51 L. J., P. & M. 84). In the same case, when before the Court of Appeal, it was held that, as the husband was in receipt of about 9001. a year from the settled funds, he might reasonably and naturally expect to be able to pay out of that, and out of his wife's independent income of 1,1001. a year from the same funds, debts incurred on account of the joint establishment to an amount not exceeding 2,000?., and that, consequently, before his interests under the settlement were extinguished, there must be an inquiry as to the amount of such debts, and that the wife should under- take to pay whatever sum should be found due on the result 256 THE INDIAN DIVORCE ACT. 40. Exceptions. Finality of order. of such inquiry (Wigney v. Wigney, 7 P. D. 177; 51 L. J., P. & M. 60). On the other hand, there are exceptional cases where the Court has refused to respect the interests acquired by a third party before the filing of a petition for variation of settlements. For instance, before a petition for this purpose had been filed by the petitioner, who had obtained a decree absolute for dissolution of his marriage, the respondent and co-respondent intermarried. It was held that, if the marriage had been with a stranger ignorant of the facts of the case, the Court might, under such circumstances, have been induced to hold its hand when asked to vary the respondent's interests under the settlement, but inasmuch as the marriage was with the co-respondent, who was cognizant of the facts and knew that he was contracting mar- riage with a person liable to be affected by an order of the Court varying her settlement, the mere fact that by such marriage the co-respondent had acquired an interest in the respondent's set- tlement before the petition was filed was no reason for refusing to vary such settlement at the prayer of the petitioner (Benyon V. Benyon and O'Callaghan, 1 P. D. 447). Finality of order. The Court may make its original order in such a form that the allowance granted shall vary according to circumstances, but once an order has been made it is final, and should not be varied on the ground of a change of circumstances since the date of the order (Benyon v. Benyon, 15 P. D. 54; 59 L. J., P. & M. 39 C. A. ; Gladstone v. Gladstone, 1 P. D. 442 ; 45 L. J., P. & M. 82). At the same time, under special circumstances, the Court will review its order, e.g., if the order as drawn up does not express what the Court intended ; but it will not do so in any case with- out a re-hearing (Cavendish v. Cavendish, 38 L. J., P. & M. 13). Whole or portion of the settled property. Dividends due and payable before order. " The whole or a portion of the property settled " : Where a settled fund is permanently secured by a deed, the legal destination of such fund continues the same until altered by the Court. Accordingly, up to the date of an order, whereby the destination of settled property is effected, it follows the destination mentioned in the deed, and the person who, by the deed, is entitled to the benefit, must obtain it up to that time. The Court cannot, therefore, alter the destination of dividends due and payable before the date of its order (Paul v. Paul and Farquhar, L. E., 2 P. 93 ; 39 L. J., P. & M. 50). SETTLEMENTS. 257 The word "property" here used extends not only to income, 40. but to capital, and the Court has jurisdiction to deal with capital rj aT) jf a i f un( j in the same way as the income for the benefit of the husband, wife, and children, and in any case of emergency will not hesi- tate to do so (Ponsonby v. Ponsoriby, 9 P. D. 122; 53 L. J., P. & M. 1120. A.). An annuity covenanted to be paid in a deed of separation is Annuity. " property settled" within the meaning of this section (Jump v. Jump, 8 P. D. 159). But the Court cannot, under this section, deal with property to which the wife is entitled, under an instrument other than an ante-nuptial or post-nuptial settlement, to her separate use without power of anticipation, or absolutely. Such an instru- ment is not a settlement within the meaning of this section, and such property can only be dealt with under sect. 39 (see notes thereto). Wife's power of appointment among the children. By the Wife's power marriage settlements, the wife, on account of whose adultery ^ a PP int - the marriage had been dissolved, had certain interests in her children husband's property, and had also a joint power of appointment over the settled property of her husband and herself among the children of the marriage, and a further power of appointment in favour of any husband she might marry after the death of her late husband, and for the children of that marriage. There were two children of the marriage, both of whom were given over to the custody of the husband. The Court ordered that her interest in her husband's property and her power of appoint- ment among the children of the marriage must be extinguished, and that her power of appointment in favour of a future hus- band and children in respect of her own settled property in possession and reversion, of which half the income was given to the petitioner for himself and the said two children, must not take effect until after the death of her late husband (Noel v. Noel, 10 P. D. 179; 54 L. J., P. & M. 73). In a later case it was argued that an order revoking a wife's power of appointment over a settled fund was not an order ' ' with reference to the application of the whole or any portion of the property settled," within the meaning of this section, and that, therefore, the Court had no power to make such an order. But the Court overruled the objection, and revoked the power (Bosvile v. Bosvile, 13 P. D. 76; 57 L. J., P. & M. 62; cf. Evered v. Evered, 43 L. J., P. & M. 86). R. S 258 THE INDIAN DIVORCE ACT. 40. Husband's power of ap- pointment. Wife's power of appointing trustees. On the other hand, where the marriage has been dissolved on the ground of the husband's misconduct, and the marriage settlement gave the wife, upon the death of the husband, a power of appointment in favour of a second husband and of the children of a second marriage, the Court, upon the dissolution of the marriage, refused to vary the settlement so as to enable the wife to exercise such power of appointment before the death of her late husband (Pollard v. Pollard, (1894) P. 172 ; 63 L. J., P. & M. 174). Nor will the Court, in such a case, necessarily deprive the guilty husband of his power of appointment among the children of the marriage so as to take away from him his power of exercising parental judgment and discrimination with regard to his children (Maudslay v. Maudslay, 2 P. D. 256 ; 47 L. J., P. & M. 26). Joint power of appointing trustees. "Whether, when a marriage is dissolved, the Court has power under this section to vary a settlement by depriving a guilty wife of her right to join in the power of appointing fresh trustees, is doubtful. On the one hand, Lord Penzance was of opinion, though he did not find it necessary to decide the point, that it would be a straining of the language of the statute to say that the power of making orders with reference to the application of the whole or portion of the property settled included the depriving the wife of her right in reference to the appointment of trustees (Hope v. Hope and Erdody, L. E., 3 P. 226; 44 L. J., P. & M. 31; cf. Davies v. Davies, 37 L. J., P. & M. 17). On the other hand, Butt, J., has expressed a contrary opinion, and has stated that the words of the statute are sufficient to give jurisdiction to make such orders (Oppenneim v. Oppenheim and Eicotti, 9 P. D. 60; 53 L. J., P. & M. 62; cf. Maudslay v. Maudslay, 2 P. D. 250). But in both the cases last cited there was no opposition on the part of the respondent, and in a later case, Butt, J., though stating that it was by no means clear that the words of the statute did not give the Court power to deprive the wife of her right to join in the appointment of new trustees, refused, under the circumstances, to exercise it (Bosvile y. Bosvile, 13 P. D. 76 ; 57 L. J., P. &M. 62). But, whether or not the Court has such power, it will not exercise it in any case in which the wife is to retain a substan- tial interest in the settled fund (Hopev. Hope; Bosvile y. Bosvile, tibi supra ; Tupperv, Tupper, 62 L. T. 665). SETTLEMENTS. 259 Covenant to appoint in favour of the guilty party. After a final 40. decree in a suit for dissolution of marriage, the Court has authority under this section to relieve an innocent party from a covenant to appoint in favour of the other party who has been guilty of a matrimonial offence (Benyon v. Benyon and O'Calla- ghan, 1 P. D. 447 ; 45 L. J., P. & M. 96). Variation of settlements: guilty husband. The Court, in Guilty making an order under sect. 40, will act upon the general Jlusbancl ' principles which have been set forth above. As a general rule, when the marriage has been dissolved on account of the hus- band's misconduct, he will be deprived of all his interest under the settlement in such portion of the settled fund as came from the wife or the wife's family (Boynton v. Boyrdon, 30 L. J., P. & M. 156). So, where by ante-nuptial and post-nuptial settlements 724?. Consols, the property of the husband, and 700Z. and some lease- holds, the property of the wife's father, were settled upon the wife for life, and after her death upon the husband for life, and after the death of the survivor upon the children of the mar- riage, the Court, after a decree absolute for dissolution of the marriage at the suit of the wife, ordered that the trustees of the settlement should deal with the proceeds of the property which came from the wife as if the husband was dead at the date of the decree absolute, but refused to alter the settlement as to the 724?. settled by the husband. In this case the Judge Ordinary stated that he had seldom heard of ' ' more savage and unmanly conduct " than that of which the husband had been guilty (Johnson v. Johnson, 31 L. J., P. & M. 29). Where, by an ante-nuptial settlement, a share in the Times newspaper to which the wife was entitled was assigned to trustees upon trust to pay the income arising therefrom to her for her sole and separate use during her life, and after her death to her husband in case he should survive her, and after the death of the survivor to apply the property for the benefit of the children of the marriage, and it appeared that there were four of such children, that the conduct of the husband had been inexcusable, and that the conduct of the wife had been without reproach, the Court ordered that the settlement should be varied by post- poning the interest of the husband, in the event of his surviving the petitioner, till after the interests of all the children (Horne V. Horne, 30 L. J., P. & M. 182, note}. Nor, when the effect of the Court's order is merely to deprive s2 260 THE INDIAN DIVORCE ACT. 40. Husband not necessarily deprived of all interest in property settled by wife. Property settled by husband. the guilty husband of his interest in the wife's fortune, and to put the innocent wife into immediate possession of her own income, will the Court impose upon her the condition dum sola et casta vixerit, though such condition is perfectly reasonable when the husband is called upon to sacrifice a portion of his own means (Gladstone v. Gladstone, 1 P. D. 444; 45 L. J., P. & M. 82; Chetwyndv. Chetwynd, 2 S. & T. 410; 35 L. J., P. & M. 21). But even if the whole of the settled property came from the wife, the guilty husband will not necessarily be deprived of all interest therein under the settlement. For, ' ' suppose a guilty husband is incapacitated by physical infirmity from earning a livelihood, and has no means of his own, I do not say that no provision can in any case be made for him out of the wife's pro- perty " (Wigney v. Wigney, 1 P. D. 177 ; 51 L. J., P. & M. 60, per Jessel, M. E.). In this case, the whole of the settled fund had been brought in by the wife, and the marriage was dis- solved on the ground of the husband's misconduct. The Court ordered that the fund should be held upon the trusts which would be subsisting if the husband were then dead and freed from the ultimate trust in his favour, but certain mortgages which the husband had effected upon his life estate (which, as to part of the fund, was prior, and as to the rest was subsequent, to that of the wife) were permitted to remain a charge on the settled estate, and certain debts, contracted in discharge of household expenses before the separation, were also charged on the same estate. When the settled fund consists of property that came from the husband or the husband's family, and the marriage is dis- solved on the ground of the husband's misconduct, the Court has an absolute discretion as to the amount of income arising therefrom to be given to the wife. It may give her even the whole of such income, or it can, if it thinks fit, hand her over the capital (Pomonby v. Ponsonby, 9 P. D. 122; 53 L. J., P. & M. 112 C. A.). "Where the settled property came from the husband's father, and the settlement provided that, in the event of the husband's bankruptcy (he taking a first life interest in the property), the trustees should, as they might think fit, apply the income of the trust funds, or any part thereof, " for the maintenance and per- sonal support of the husband and his then present or any future wife, and child or children and other issue by his then present or any future wife, or any one or more of such objects to the exclusion SETTLEMENTS. 261 of the others," and the husband became bankrupt in 1866, and 40. in 1872 the marriage was dissolved upon the wife's petition, the Court subsequently, upon the wife's petition, ordered that, during her life, and so long as she should remain unmarried and the children of the marriage remain under age, the trustee should pay to her the whole of the income of the settled fund, and that as each of the children attained the age of twenty-one, a sum of 201. a year should be paid to such child during the lifetime of the mother (Marsh v. Marsh, 47 L. J., P. & M. 34; in app., 47 L. J., P. & M. 78). Variation of Settlements : guilty Wife. (a) Property brought into settlement by wife. On the marriage Property of the parties, the father of the wife settled property, in the first place, for the benefit of his daughter for life, then for the benefit wife, of her husband, and, on the death of the survivor of them, for the benefit of their children. No property was settled on behalf of the husband. The marriage was subsequently dissolved on the ground of the wife's adultery, and the Court varied the settlement by ordering the whole income of the settled property about 150?. per annum to be applied during the joint lives of the petitioner and respondent for the benefit of their children, the husband, on the death of the respondent during his lifetime, to enjoy the benefits given him by the settlement (Paul v. Paul and Farquhar, L. E., 2 P. 93 ; 39 L. J., P. & M. 50). Although the property brought into settlement was the wife's absolute property before the marriage, it is only just and equitable that when the marriage is dissolved by reason of her misconduct, that the husband should not, ' ' in addition to the grievous wrong done by (the wife's) breach of the marriage vow, be wholly deprived of means to the scale of which he may have learnt to accommodate his mode of life. Nor, in viewing the matter on the other side, does it seem just or equitable that funds which were intended, at the time of the marriage, for the use of both, should be borne off by the guilty party, and perhaps transferred to the hands of the adulterer as the dowry of a "second marriage. The interests of society point in the same direction. It would be of evil example if this Court were to decide that the entire fortune of a wealthy married woman was to be reckoned as part of the prospects of an adulterer, or the resources of a second home for a guilty woman " (March v. March and Palumlo, L. E., 1 P. 440 ; 36 L. J., P. & M. 28). Where, therefore, by an ante-nuptial settlement, property of 262 THE INDIAN DIVORCE ACT. 40. the wife, producing an annual income of 9097., was settled during the joint lives of husband and wife, to the separate use of the wife, then to the survivor for life, and then for the benefit of the children of the marriage, and other property producing an annual income of 549?. was bequeathed to the wife upon the same trusts as those contained in the settlement, the husband on the marriage receiving 3,000?., the property of the wife, and having an income of 266?. , the Court, after a dissolution of the marriage on the ground of the wife's adultery, ordered that, during the joint lives of husband and wife, the trustees of the settlement should pay, first, 200?. per annum to the husband for maintenance of the child of the marriage during minority, and after he attained full age to the child ; and, secondly, 4-40?. per annum to the hus- band for his own use (Ib. ; affirmed on app. 36 L. J.,P. & M. 65). Nor will the Court, at the instance of an adulterous wife, deprive the innocent husband of his interest under the settle- ment, though to do so might be for the benefit of the children of the marriage (Thompson v. Thompson and Surras, 2 S. & T. 649; 32 L. J., P. & M. 39). Nor where the husband has no sufficient means of his own for the support of himself and the child of the marriage, of whom he has the custody, will the offer of the wife to maintain the child disentitle the husband to an order directing the trustees of the settlement to pay him a certain sum per annum out of the life income of the wife for the maintenance of the child ( Webster v. Webster and Mitford, 32 L. J., P. & M. 29; 3 S. & T. 106). In this case the life income of the wife was 851. , and out of this 20?. per annum was ordered to be paid for the maintenance of the child. Where, by a settlement made on the marriage of the parties, certain property of the respondent was settled upon trust (inter alia) for the respondent for life, and after her death for the petitioner if he survived her, and, after the death of both, in the event of there being no children of the marriage, for the respondent's next of kin, and there were no children of the marriage, and it appeared that the wife's income under the settlement was 1,050?. a year, while the husband possessed an income of about 600?. a year, part of which arose from money received from the respondent, the Court varied the trusts of the settlement by ordering the trustees to pay the husband 300?. out of the income of the trust moneys during the joint lives of the petitioner and respondent (Farrington v. Farrinyton and Schoolea, 11 P. D. 84 ; 55 L. J., P. & M. 69). SETTLEMENTS. (b) Property brought into settlement by husband, By a post- 263 nuptial settlement the petitioner had settled his property on Guilty wife. himself for life, and after his death upon his wife for life, and Property then upon the children of the marriage. The Court, upon an ? tfc " ^y application to vary the settlement after the marriage had been dissolved by reason of the wife's adultery, ordered " that from and after the death of the petitioner the property comprised in the settlement should, in the event of the respondent surviving the petitioner, be applied by the trustee for the benefit of the children of the marriage as if the respondent were then dead " (Pearce v. Pearce and French, 30 L. J., P. & M. 182). But where the father of the petitioner (the husband) had covenanted to pay 100Z. per annum to the respondent after the death of the petitioner, and during the joint lives of the petitioner and respondent, or until the respondent should marry again, the Court, while ordering the money covenanted to be paid to be applied for the benefit of the child of the marriage, held that it had no power to deprive the respondent of her interest under the covenant on the death of the child (Sykes v. Sykes and Smith, L. E., 2 P. 163 ; 39 L. J., P. & M. 52). Where the property has been brought into settlement by the petitioner, and the effect of the dissolution of his marriage with the respondent has been to render the rights of the children of a future marriage of the petitioner the sole limitation upon his absolute enjoyment of the settled property, there being no living persons whose interests can be prejudiced, and the only persons who, if they come into existence, will be affected being children for whom the petitioner may naturally be expected to provide, the Court will order the settled property to be reconveyed to the petitioner for his own use (Meredyth v. Meredyth and Leigh, (1895) P. 92 ; 64 L. J., P. & M. 54 ; cf. Wood v. Wood, 14 B. L. E., App. 6). (c) Property brought into settlement by husband and by wife. Property The marriage of the parties had been dissolved by reason of the settled by wife's adultery, and there were two children of the marriage who were living with the petitioner. By the marriage settle- ments the husband's property, which consisted of 10,000?. in- vested on mortgage, and reversionary interests in land yielding about 200?. a year, was settled in trust for the husband for life, then for the respondent for life, and afterwards for the children of the marriage as the husband and wife, or the survivor, might appoint, and in default for the children equally, and in default 264 THE INDIAN DIVOECE ACT. 40. of children, for the petitioner and his representatives. The ~ property of the respondent, which consisted of an annuity of 400?. payable by her father, and reversionary interests in land yielding about 400?. a year, and several sums of money amount- ing to 26,000?., was settled, after a first life interest to her, upon similar trusts to those of the husband's property, except that the ultimate trusts were as she should apppoint, and in default for her next of kin ; and it was also provided that if she should survive her husband she should be at liberty, in certain events, to appoint a portion of the income in favour of any husband she might marry after the death of the petitioner, and a certain proportion of the capital for the benefit of the children of such marriage. The incomes of the parties at the time amounted to about 400?. a year each. The order of the Court was that (i) half of the respondent's present and reversionary income should be given to the petitioner for himself and the children of the marriage, and (ii) that the interest in her husband's property must be extinguished, and her powers of appointment in favour of a future husband and children must not take effect until after the death of the petitioner. The Court further held that, in varying settlements, the fact that the wife has to pay the costs of the suit should not be taken into consideration in her favour (Nod v. Noel, 10 P. D. 179 ; 54 L. J., P. & M. 73). * Separation (d) Separation deeds, variation of. When a marriage is dis- 66 solved on the ground of the wife's misconduct, the mere fact that the husband has accepted an allowance from her under a deed of separation, does not preclude him from applying for an increased provision from her income (Benyon v. Benyon and O'Callaghan, 1 P. D. 447 ; 45 L. J., P. & M. 96). So, in the converse case, where a husband has covenanted in a deed of separation to pay his wife an annual allowance, with- out any dum casta clause, and the marriage is afterwards dis- solved on the ground of the wife's adultery, the Court may, upon the petitioner's application to vary such deed, reduce the amount of such allowance and make it payable to the respon- dent only dum casta et sola vixerit (Saunders v. Saunders, 69 L. T. 498 ; cf. Worsley v. Worsley and Wignall, L. E., 1 P. 648). And where by a post-nuptial settlement certain property belonging to the respondent was assigned to trustees in trust, inter alia, to pay the interest and annual proceeds thereof to her * See also pp. 235237, 251, 252, ante. SETTLEMENTS. 265 for her separate use, and subsequently a deed of separation was 40. entered into between the parties with the same trustees as those of the settlement, whereby the petitioner covenanted to pay the respondent an annuity for her life, the Court, upon the applica- tion of the petitioner after a dissolution of the marriage, ordered that whenever any money should be payable to the respondent under the deed of separation, the trustees should, out of the moneys in their hands payable to the respondent under the post-nuptial settlement, pay and apply a sum equal in amount upon such and the same trusts as would be applicable thereto in case the respondent were dead and had died in the lifetime of the petitioner (Bullock v. Bullock and Strong, L. E., 2 P. 389; 41 L. J., P. & M. 83). " The husband or the wife " : Husband or Sect. 5 of the Matrimonial Causes Act, 1859, authorized the "w^ 6 - Court to make orders " with reference to the application of the whole or a portion of the property settled either for the benefit of the children of the marriage or of their respective parents" The Courts having construed these words to mean that the power so given could be exercised only in cases where there were children of the marriage living at the time (Thomas v. Thomas, 2 S. & T. 89 ; Corrance v. Corrance and Lowe, L. E., 1 P. 495 ; 37 L. J., P. & M. 44 ; Ansdall v. Ansdall, 5 P. D. 138), a later statute (Matrimonial Causes Act, 1878, sect. 3) provided that the power given under the former statute might be exercised notwithstanding that there were no children of the marriage. " Provided that the Court shall not make any order at the NO variation expense of the children " : to be made . at expense of The Court in England has always acted upon this principle, the children. and has refused to interfere with the interests of the children under the settlement, even though to do so might possibly be to give the children a larger benefit (see Crisp v. Crisp, L. E., 2 P. 426 ; 42 L. J., P. & M. 13 ; Forsyth v. Forsyth, (1891) P. 363). Costs of application to vary settlements. When, in a suit for Costs, dissolution of marriage, the co-respondent has been condemned in costs, he is liable for the costs of the petitioner and respondent incurred in obtaining an alteration of the marriage settlement (Gill v. Gill and Hogg, 3 S. & T. 354; 33 L. J., P. & M. 43; Stone v. Stone and Brownrigg, 3 S. & T. 372 ; 33 L. J., P. & M. 95). In a recent case, on a motion for variation of settlements after 266 THE INDIAN DIVORCE ACT. 40. a dissolution of marriage on the ground of the wife's adultery, the Court, on the recommendation of the registrar, and with the consent of the guardian ad litem of the infant children of the marriage, allowed the costs of all parties to be paid out of the wife's settled funds (Hamilton v. Hamilton, 68 L. T. 467). Power to make orders as to custody of children iii suit for separation. Power to make such orders after decree. Power to make orders as to custody of children in suits for dissolution or nullity. XI. Custody of Children. 41, In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court. 42, The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending. 43, In any suit for obtaining a dissolution of mar- riage or a decree of nullity of marriage instituted in, or removed to, a High Court, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree, and in any such suit instituted in a District Court, the Court may from time to time, before its decree CUSTODY OF CHILDREN. 267 is confirmed, make such interim orders, and may 41-44. make such provision on such confirmation, as the High Court or District Court (as the case may be) deems proper with respect to the custody, main- tenance and education of the minor children, the marriage of whose parents is the subject of the suit; and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court. 44. The High Court after a decree absolute for dis- Power to ,,.. , P . ,, . make such solution oi marriage or a decree 01 nullity 01 marriage, orders after and the District Court after a decree for dissolution of marriage or of nullity of marriage has been con- firmed, may, upon application by petition for the purpose, make from time to time all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents was the subject of the decree, or for placing such chil- dren under the protection of the said Court, as might have been made by such decree absolute or decree (as the case may be), or by such interim orders as aforesaid. The Matrimonial Causes Act, 1857 (20 & 21 Yict. c. 85), sect. 35, provides that " In any suit or other proceeding for obtaining a judicial separation or a decree of nullity of marriage, and on any petition for dissolving a marriage, the Court may, from time to time, before making its final decree, make such interim orders, and may make such provision in the final decree, as it may deem just and proper with respect to the custody, maintenance, and education of the children, the marriage of whose parents is the subject of such suit or other proceeding, and may, if it shall think fit, direct proper proceedings to be taken for placing such children under the protection of the Court of Chancery." The Matrimonial Causes Act, 1859 (22 & 23 Viet. c. 61), sect. 4, enables the Court to make, from time to time, similar 268 THE INDIAN DIVORCE ACT. 41-44. orders and provision after a final decree of judicial separation, ~ nullity of marriage or dissolution of marriage, upon application (by petition) for such purpose. The Matrimonial Causes Act, 1884 (47 & 48 Viet. c. 68), sect. 6, provides that : " The Court may, at any time before final decree on any application for restitution of conjugal rights, or after final decree if the respondent shall fail to comply therewith, upon application for that purpose, make from time to time all such orders and provisions with respect to the custody, maintenance, and education of the children of the peti- tioner and respondent as might have been made by interim orders during the pendency of a trial for judicial separation between the same parties." The Guardianship of Infants Act, 1886 (49 & 50 Viet. c. 27), sect. 7, provides that : " In any case where a decree for judicial separation, or a decree either nisi or absolute for divorce, shall be pro- nounced, the Court pronouncing such decree may thereby declare the parent by reason of whose misconduct such decree is made to be a person unfit to have the custody of the children (if any) of the marriage ; and, in such case, the parent so declared to be unfit shall not, upon the death of the other parent, be entitled as of right to the custody or guardianship of such children." The Matrimonial Causes Act, 1878 (41 Viet. c. 19), sect. 4, provides that : " If a husband shall be convicted summarily or otherwise of an aggravated assault within the meaning of the statute 24th & 25th Victoria, chap. 100, sect. 43, upon his wife, the Court or magistrate before whom he shall be so con- victed may, if satisfied that the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with her husband ; and such order shall have the force in all respects of a decree of judicial separation on the ground of cruelty; and such order may further provide . . . (2) that the legal custody of any children of the marriage under the age of ten years shall, in the discretion of the Court or magistrate, be given to the wife. Provided always, that no order for . . . the custody of the children by the wife shall be made in favour of a wife who shall be proved to have committed adultery, unless such adultery has been condoned ; and that any order for . . . the custody of the children may be discharged by the Court or magistrate by whom such order was made upon proof that the wife has, since the making thereof, been guilty of adultery ; and pro- vided also, that all orders made under this section shall be subject to appeal to the Probate and Admiralty Division of the High Court of Justice." CUSTODY OF CHILDREN. 269 " Custody of children " : 41-44. For the practice of the English Divorce Court in these matters, C , u .^ ody of see Eules Nos. 97102, 104, 184, 195, and 212. A party desirous of obtaining an order of the Court as to the Petition, custody, maintenance, or education of the minor children should, in all cases, apply by separate petition for that purpose. And it is the more correct procedure not to include a prayer for custody in the original petition (Ledlie v. Ledlie, I. L. E., xviii Calc. 473). Such petition, except when made under sect. 44, must Court fee bear a Court fee stamp of Es. 20 (Court Fees Act, 1870, Second stam P- Schedule, Art. 20), and must be served personally on the re- Service of spondent, unless the Court dispenses with such personal service petition, (sect. 50, post}. ' ' Generally speaking, the Court will not act ex parte, but the petition must be served, or, in some sufficient form, notice must be given in order to show the respondent what the Court is to be asked to do. On the other hand, it has been held in England that if the notice has been given in an earlier stage of the case, then notice of the petition itself need not be given " ; accord- ingly, if in the original petition the respondent is warned that an application will be made for the custody of the minor chil- dren, notice of the subsequent application will be dispensed with (Ledlie v. Ledlie, I. L. E., xviii Calc. 473, following Home v. Home, 30 L. J., P. & M. 200 ; Wilkinson v. Wilkinson, 30 L. J., P. & M. 200 (n.}}. And if, after an order has been made for the custody of the Order for children, the other party desires to obtain an order for access access, to them, he or she must apply by petition and not by motion (Anthony v. Anthony, 30 L. J., P. & M. 208). " Suits for dissolution or nullity of marriage, or for judicial separation " : The power given to the English Divorce Court by the Matri- No power to monial Causes Act, 1884, sect. 6, to make orders, as to the make order custody, maintenance, and education of the minor children, in suits for restitution of conjugal rights, has not been conferred upon conjugal the Courts of this country (cf. Chambers v. Chambers, 39 L. J., rights. P. & M. 56). Nor have the Courts in India been given powers similar to those conferred on the English Court by sect. 7 of the Guardian- ship of Infants Act, 1886. 270 THE INDIAN DIVORCE ACT. 41-44. Minor children " : "Minor " Minor children means, in the case of sons of Native fathers, children." boys who have not completed the age of sixteen years, and in the case of daughters of Native fathers, girls who have not completed the age of thirteen years ; in other cases, it means unmarried children who have not completed the age of eighteen years" (sect. 3 (5), ante). T? U ^ ^ According to the common law of England, the age at which a custody Arc child is deemed to have a discretion is fourteen in the case of a of children. boy, and sixteen in the case of a girl (Reg. v. Clarke, 7 E. & B. 186). After a child has attained the age of discretion, a court of common law will set it free if illegally detained ; nor will it force a child against his or her will to remain with his or her father or legal guardian. But the father's common law right to the custody of his child exists until the child attains twenty- one (In re Agar-Ellis, 24 Ch. D. 317). And the Court of Chan- cery, in addition to the co-ordinate jurisdiction over infants which it possesses equally with the courts of common law and enforces by writs of habeas carpus, exercises the power of the Crown as parens patrice over infants, and, in the exercise of this jurisdiction, the power of that Court has been much more exten- sive than that possessed by courts of common law, under a writ of habeas corpus, and has frequently been exercised by it in aid of fathers and legal guardians over children who have attained the age of discretion. But the jurisdiction of the Divorce Court, under sect'. 35 of the Matrimonial Causes Act, 1857, and sect. 4 of the Matrimonial Causes Act, 1859, is far greater than that exercised by any Court previously existing. ' ' Nothing can be wider than the discretion and power conferred upon the Divorce Court by these two sections. It can order parents to maintain and educate their children at their own expense, which no Court could do before ; and if it were not for the decisions * to which I am about to refer, I should have thought that the power to order payment of a proper sum for the maintenance and educa- tion of the children under twenty-one of persons who had been divorced or judicially separated too clear for reasonable doubt " * The decisions referred to are to the effect that the Divorce Court had no jurisdiction to make orders for the custody, maintenance or education of children who had completed the age of sixteen (Ryder v. Ryder, 2 S. & T. 225 ; Webster v. Webster, 31 L. J., P. & M. 184 ; Mallinson v. Malllnson, L. E,., 1 P. 221 ; 35 L. J., P. & M. 84 ; Bland- ford v. Slandford, (1892) P. 148). CUSTODY OF CHILDREN. 271 (Lmdley, L.J., Thomasset v. Thomasset, (1894) P. 295 ; 63 L. J., 41-44. P. & M. 140). In this case the Court of Appeal, overruling the decisions referred to by the Lord Justice, held that the Divorce Court in England has power to make orders respecting the custody, maintenance, and education of children during the whole period of their infancy that is, till they attain the age of twenty-one. The Lords Justices, however, expressly stated that, except under very special circumstances, a child who has attained years of discretion cannot properly be ordered into the custody of either parent against such child's own wishes. But, " subject to such unwillingness on the part of the child, I can entertain no doubt that the parent is entitled to the custody of his child as against anybody detaining the child against its will up to the age of twenty-one" (Lopes, L.J., ibid.], The power of the Courts of this country to make orders for the custody, maintenance, and education of " minor children " is expressly limited by the definition of the term " minor chil- dren " in sect. 3 (5) of the Indian Divorce Act. But, though the Court has jurisdiction to give a parent the custody of every such child as comes within that definition, there is no power in the Court to compel a child who has, according to the personal law to which such child is subject, attained the years of dis- cretion, to remain in such custody contrary to his or her own wishes. Intervention of third parties. Upon any question regarding Intervention the custody, maintenance, or education of the children, the third marriage of whose parents is the subject of the suit, persons who are not parties to the suit have been permitted to inter- vene and plead on behalf of such children, when they have been able to show that they are entitled to do so. "It was the obvious intention of the legislature that the Court should have the power to make such orders as it might think necessary for the benefit of the children themselves ; and it could not properly exercise that most useful power if it were to decline altogether to hear what third persons had to say on the matter. It might be that a worthless father and mother having been divorced might marry again, and neither of them might be willing to have the care of the children. It would be a great misfortune if this Court were to abdicate the power given to it by these sections, by holding that no third persons could intervene for the benefit of the children" (Chetwynd v. Chetwynd, 34 L. J., P. & M. 130 ; L. E., 1 P. 39). 272 THE INDIAN DI70KCE ACT. 41-44. Thus, even after a final decree of judicial separation, the grandfather of the children was allowed to intervene on their behalf to question the propriety of the continuance of the order, which had been made in favour of the petitioner, for the custody of the children (Goodrich v. Goodrich, L. E., 3 P. 134). But in a later case, Butt, J., held that sect. 4 of the Matri- monial Causes Act, 1859, refers only to an application to be made by one of the parents, and that, upon the death of the parent who was entitled under a decree of judicial separation to the custody of the child, it was not competent to a third party to apply for the custody of such child (Davis v. Davis, 14 P. D. 162). And, in any case, if a third party is allowed to intervene for such purpose, he does so at the peril of being condemned in costs if the intervention proves unsuccessful (March v. March, L. E., 1 P. 437). Interim orders under sects. 41, 43. Priind facie right of father to custody of child. Interim Orders under Sections 41 and 43. Until the final decree in the suit, the Court can only make an interim order as to the custody, maintenance or education of the minor children (cf. Cubley v. CuNey, 30 L. J., P. & M. 161). Nor can the District Court make a final order, under sect. 43, till after the confirmation of its decree. Where, therefore, the decree of the District Court for dissolution of marriage con- tained a passage to the effect that "the Court further awards the petitioner the custody of the children," the Chief Court of the Punjab held that such an order should not have been con- tained in the decree for dissolution. After such decree has been confirmed, but not till then, the Court may make such pro- vision as it thinks proper for this purpose under sect. 43 (Bur- roughs v. Burroughs, No. 62, Punjab Record, 1887). At common law a father has a legal right to the custody of his child, whether male or female, from its birth until it attains the age of twenty-one (In re Agar Ellis, 24 Ch. D. 317; Thomasset V. Thomasset, (1894) P. 295 ; 63 L. J., P. & M. 140). Accordingly, in making interim orders as to the custody, maintenance and education of a minor child, the Court, though it has under the Act a very wide discretion to adhere to or depart from the common law rule, will not deprive the father of his right even in the case of an infant of very tender age, unless good cause is shown (Cartledge v. Cartledge, 2 S. & T. 567 ; 31 L. J., P. & M. 85 ; Spratt v. Spratt, 1 S. & T. 215). The fact that the mother's health is seriously affected by the CUSTODY OF CHILDKEN. 273 separation from, her child is such good cause, and in such an 41-44. event the Court will give her the custody of the child pendente Interim orders. lite, even though she is accused of adultery (Barnes v. Barnes, L. B., 1 P. 463). In this case the Court made the order the more readily because the child was at the time living with a stranger and not with its father. In making an interim order for the custody of the child the Court will also take into consideration the conduct of the applicant. Pending a suit by the husband for dissolution of his marriage on the ground of his wife's adultery, the wife improperly obtained possession of the infant child of the marriage, who was then living with its father. The father took it away again from the mother, whereupon the latter, after she had failed to recover it by violence, applied to the Court for an interim order for its custody, but the Court refused to grant the application on account of her improper proceedings (Allen v. Allen and D'Arcy, 29 L. J., P. & M. 166). Both parties must be before the Court before an interim order Both parties can be made (Stacey v. Stacey, 29 L. J., P. & M. 63). to be before Applications for interim orders for the custody of a child should be kept distinct from the main question in the suit. But the Court, at the hearing of a cause, will not entertain an distinct from application for custody of children if it is founded on evidence main question which would not be admissible in the cause. If, however, at lr the hearing, the facts proved would warrant such an order, e.g., if the respondent's adultery is proved, the Court may direct that the petitioner have the custody of the children until further orders (Wallace v. Wallace, 32 L. J., P. & M. 34). Access to child pending suit. The Court has power to order Access to that the party who has not the custody of the child shall have c ^ d pending access to it pendente lite (Thompson v. Thompson, 2 S. & T. 402; 8m ' 31 L. J., P. & M. 213). The Court has, however, a discretion in the matter of granting such parent access to the child pending suit, and in the exercise of that discretion the paramount consideration for the Court is the interests of the child itself. Where, therefore, it appeared that the visits of the mother to the child, who was in a very weak state of health, might retard its recovery, the Court refused to make an order for access pending suit in her favour, although there was reason to apprehend that the separation from her child would affect the mother's health (Phillip v. Phillip, 41 L. J., P. & M. 89). R. T 274 THE INDIAN DIVORCE ACT. 41-44. When, the mother is the respondent in the suit and the child is in the custody of the father, the Court will act on the pre- sumption that the respondent is innocent, and will ordinarily allow her access pending suit, provided that the Court is satisfied that her motive is natural love and affection for the child, and that she has no indirect object in view (Codrington v. Codrington and Anderson, 3 S. & T. 496 ; 10 L. T. 387). But when once the adultery of the mother has been sufficiently established the Court will refuse to treat an application by her for custody of the child on the same principles as an interim order, although the final decree has not been pronounced (Shewell v. Shewell and Fox, 20 L. T. 404 ; but cf. Goodrich v. Goodrich, 19 L. T. 611). The costs of a wife's unsuccessful motion for access to the children pending suit will not be allowed her (Hepworth v. Hepworth, 30 L. J., P. & M. 253). Costs of wife unsuccessful application. Orders on or after final decree. Discretion of Court. "Orders as to custody, &c., of minor children on or after final decree " : The Court has no power, upon the dismissal of a petition for judicial separation or for dissolution or nullity of marriage, to make orders with reference to the custody, maintenance or education of the minor children (Seddon v. Seddon, 2 S. & T. 640 ; 31 L. J., P. & M. 101). Sect. 42 contemplates that, after a decree has been made, the intervention of the Court shall be sought by petition, and it is the more correct procedure not to include a prayer for the custody in the original petition (Ledlie v. Ledlie, I. L. E., xviii Calc. 473). But, if the petition is granted, the Court has the very widest discretion, under the provisions of the Divorce Act, to weigh the comparative advantages or disadvantages of giving the custody of all, or any, of the children to the one parent or the other, and no general rule for the guidance of the Court can be laid down (Symington v. Symington, L. E., 2 H. L. (Sc.) 415 ; Suggate v. Suggate, 29 L. J., P. & M. 167). The jurisdiction as to the custody, maintenance and education of minor children conferred upon the Divorce Court is far greater than that exercised by any Court previously existing, and nothing can be wider than the discretion so conferred. It overrides both the common law rules and the Chancery rules as to the custody of children, and the judge is not bound to follow any of those rules, though he will have regard to them in exercising his discretion ; but he will be mainly guided by the CUSTODY OF CHILDREN. 275 particular circumstances of the case before him (Thomasset v. 41-44. Thomasset, (1894) P. 295; 63 L. J., P. & M. 140; Handley v. " Handley, (1891) P. 124, per Liudley, L. J. C. A.; cf. Goadv. Goad, No. 69 Punjab Record, 1870). Nor will the Court of Appeal overrule the discretion of the lower Court except under very special circumstances (Ilandley V. Handley, ubi supra}. But, although no general rule can be laid down for the General guidance of the Court, and the discretion given to the Court must P r i nc ipl es - be exercised according to the circumstances of each case, there are certain general principles upon which the Court ordinarily acts. These are as follows : (a) " The first duty of the Court is to consider what is for the 1st. Interests benefit of the children, that should be the paramount con- of minor cllllCLI*GIl sideration with the Court " (Sir E. Phillimore, If Alton v. D" Alton, 4 P. D. at p. 91). Accordingly, if such a course appears to be more conducive to the future welfare of the children, the Court may refuse to give the custody of them to the innocent parent, and may hand them over into the charge of some third person or even of the guilty parent. Thus, where the wife, after a decree of judicial separation had been made in her favour, applied for the custody of the children for the avowed purpose of bringing them up in a religion different from that of their father and from that in which they had been brought up during the cohabitation of their parents, the Court held that it was not in the interest of the children that they should have their course of education interrupted and their religion altered, and that it was desirable in the same interest that the children should not be troubled with their parents' dissensions, nor be made the depositary of their parents' grievances, the one against the other. Their custody was, therefore, given to a third person, in whose establishment they were at the time being educated, but with full access on the part of both parents (D* Alton v. D' Alton, 4 P. D. 87 ; aff. on app. at p. 90). Nor will the Court necessarily deprive a guilty father of the Distinction custody of his minor sons when it appears to be for their benefit between , , , , , , , , . . , . , minor sons that they should remain in his charge. an( j m j nor But it is a different matter with regard to the minor daughters, daughters, to the custody of whom the mother, against whom nothing has been proved, is the person naturally entitled under ordinary T2 276 THE INDIAN DIVORCE ACT. 41-44. circumstances (Symington y. Symington, L. E., 2 H. L. (Sc.) ~ 415). But, even in the case of minor sons, a father who continues to live in adultery is presumably not a person who should be entrusted with their custody, and, if the continuance of the adultery be proved, their custody, as well as that of the minor daughters, may be given to the mother, provision being made for access on the part of the father to the sons (Hyde v. Hyde, 29 L. J., P. & M. 150). 2nd. Primd facie right of innocent parent. Innocent wife not to be de- prived of her right simply because she (b) Provided that the interests of the minor children are not likely to be thereby affected, the innocent parent has a prima facie right to their custody (Martin v. Martin, 29 L. J., P. & M. 106). "With regard to the rights of the petitioner, the principle which guides the Court is, that the innocent party shall suffer as little as possible from the dissolution of the marriage, and be preserved, as far as the Court can do so, in the same position in which she was while the marriage continued first, by giving her a sufficient pecuniary allowance for her support, and, secondly, by providing that she should not be deprived of the society of her children unnecessarily. As it has been put by one of my predecessors, ' the wife ought not to be obliged to buy the relief to which she is entitled owing to her husband's mis- conduct, at the price of being deprived of the society of her children'" (Hannen, J., D' Alton v. D' Alton, 4 P. D. at p. 88). Accordingly, a wife, who succeeds in her suit against her husband, will, in general, be given the custody of the minor children (Boynton v. Soynton, 30 L. J., P. & M. 156; 2 S. & T. 275; Suygate v. Suggate, 29 L. J., P. & M. 167; Marsh v. Marsh, 28 L. J., P. & M. 13; 1 S. & T. 312; Macleod v. Macleod, 6 B. L. E. 318; Goad v. Goad, 69 Punjab Record, 1870). Where, however, there are both minor sons and minor daughters, the father will not necessarily be deprived of the custody of the former, if it appears that he is no longer living in adultery and has always treated his children kindly (Martin v. Martin, 29 L. J., P. & M. 106; Symington v. Symington, L. E., 2 H. L. (Sc.) 415). When the custody of the children has been given to the wife, whose conduct has been wholly blameless and who has done nothing to forfeit her natural right to have possession of the children, she will not be deprived of their society and custody .CUSTODY OF CHILDREN. 277 merely because she is subsequently compelled to pray the Court 41-44. to order the respondent to pay her a sum or sums of money for j g comDe n e( j ~ the past and future maintenance of the children. In such a to ask for case the Court will order the respondent to contribute in a allowance, moderate extent to their maintenance, even if his father or sister is quite prepared at his or her own cost to provide for them, if placed in his or her custody (Milford \. Milford, L. E., '- 1 P. 715). The right of an innocent wife to the custody of her child is based on the principle that she should not unnecessarily be deprived of the solace which she derives from the society of the child. If, therefore, the society of the child can afford her no solace, if, for instance, it is an idiot, the Court will not give her the custody of it, no matter how blameless her conduct has been (Cooke v. Cooke, 3 S. & T. 248; 32 L. J., P. & M. 180). When the custody of the children is given to the mother, the But guilty Court will not interfere with the relations of the children with father will not their father to any greater extent than is inevitable from their a ^ C0 nt ro i remaining in the custody of their mother. It will not, therefore, deprive him of the power of exercising parental judgment and discrimination with regard to his children by extinguishing his power of appointment amongst them (Maudslay v. Maudslay, L. E., 2 P. 256). (c) Ordinarily, the Court will refuse to give the custody of the 3 r d. Court minor children to the guilty party, whether husband or "will not give wife (Hyde v. Hyde, 29 L. J., P. & M. 150; Marsh v. Marsh, 1 S. & T. 312 ; 28 L. J., P. & M. 13; Suggate v. Suggate, 1 S. & T. 489; 29 L. J., P. & M. 167; Milford v. Milford, L. E., 1 P. 715 ; 38 L. J., P. & M. 63 ; Bent v. Bent and Footman, 2 S. & T. 292 ; 30 L. J., P. & M. 175 ; Clout v. Clout and Helbone, 2 S. & T. 391 ; 30 L. J., P. & M. 176 ; Kelly v. Kelly and Saunders, 5 B. L. E. 71 ; Goad v. Goad, No. 69 Punjab Record, 1870). Exceptional cases. "Where the guilty party is the father and Exceptions, it is shown that he has discontinued his adultery and is living a respectable life, and that he has always treated his children with kindness, the Court, while placing the minor daughters in the custody of their mother, may allow the minor sons to remain with their father (Symington v. Symington, L. E., 2 H. L. (Sc.) 415; Martin v. Martin, 29 L. J., P. & M. 106). But, in the case of a guilty wife, the circumstances will have to be very exceptional before the Court will give her the custody 278 THE INDIAN DIVORCE ACT. 41-44. of the minor children. Possibly it may do so when the child is of a very tender age, is at the time living with someone other than its father, and the health of the mother or the child is being seriously affected by the separation (Barnes v. Barnes and Beaumont, L. E., 1 P. 463). 4th. If neither parent fit to have custody. 5th. Subse- quent varia- tion of order. Enforcement of order. (d) If neither the father nor the mother is a Jit and proper person to have the custody of thejminor children, the Court will, in the interests of the children, place them in the custody of some fit and proper third person (Chetivynd v. Chftwynd, 35 L. J., P. & M. 21 ; D' Alton v. D' Alton, 4 P. D. 87). Where a decree for dissolution of marriage had been made in favour of the husband, who was away in India, the Court decreed the custody of the minor children to the petitioner or his agent^ with a view that, in the absence of their father, their grandfather should have charge of them (Ling v. Ling and Prior, 13 L. T. 683). Where, after a decree of judicial separation, the children have been placed in the custody of one of the parents, and such parent subsequently dies, the Court has no jurisdiction to grant an application by a third party for their custody, sect. 4 of the Matrimonial Causes Act, 1859 (corresponding to sects. 42 and 44 of the Indian Divorce Act), referring only to applications to be made by one or other of the parents, and not to applications by strangers (Davis v. Davis, 14 P. D. 162 ; 58 L. J., P. & M. 88). (e) If the parent, in whose custody the minor children have been placed, is subsequently proved to be leading a life which renders it unfit that the custody of the children should continue with him or her, the Court will rescind its order and give the custody of them to the other parent if proved to be leading a respectable life, or to some other proper person (Marsh v. Marsh and Palumbo, L. E., 1 P. 437 ; Witt v. Witt, (1891) P. 163; 60 L. J., P. & M. 63). But the Court looks with disfavour on an attempt to get up a charge of adultery against the person, to whose charge the chil- dren have been entrusted, by tracking him or her about from place to place with the view to obtain a rescission or variation of the order as to the custody of the children (Marsh v. Marsh and Palumlo, ubi supra}. Enforcement of order. Sect. 55 provides that ' ' all orders and decrees made by the Court in any suit or proceeding under this Act shall be ... enforced in the like manner as the decrees CUSTODY OF CHILDREN. 279 and orders of the Court made in the exercise of its original civil 88 41-44. jurisdiction are enforced." An order of the Court as to the custody, maintenance, or education of, or for access to, the minor children, will, therefore, be enforced in the manner pro- vided by the Civil Procedure Code for execution of decrees (Chapter XIX of the Code). A person who refuses or fails to comply with an order direct- ing him or her to hand over the children to the custody of another person, or to allow such other person access to them, is guilty of contempt of Court. And, independently of the Civil Procedure Code, a High Court has a jurisdiction to punish for contempt of Court which it has inherited from the old Supreme Court, and in virtue of which it may, if it think fit, keep a person guilty of contempt imprisoned for a longer period than the six months referred to in sect. 342 of the Code. For " sect. 342 applies only to those cases where parties have been imprisoned under process of execution in satisfaction of a decree, and does not apply at all to cases of imprisonment " (under an order of a High Court) "for contempt of Court" (Martin v. Lawrence, I. L. E., iv Gale. 655). As a general rule, there must be personal service of the order upon the respondent before proceedings can be taken for non- compliance therewith. But " there are exceptions to that rule. If it were proved, for instance, that the person was actually in Court when the order was made, service would be unnecessary in order to obtain process for contempt, and personal service is also dispensed with if it is shown that the reason why there has been no personal service is that the person to be served has evaded service " (Cotton, L. J., Hyde v. Hyde, 13 P. D. at pp. 171, 172 ; cf. Allen v. Allen, 10 P. D. 187). Order after final decree that guilty parent shall have access to Access to children. As a general rule, the Court, when it gives the cus- children after tody of the children to the parent in whose favour a decree of judicial separation or dissolution of marriage has been made, will not order that the other party shall have access to them. The Court has, however, a very wide discretion in such matters, and has occasionally exercised it in favour of the guilty party. Thus, an order for access to the children was made in favour of the father, although he was proved to be continuing his adul- terous connexion (Hyde v. Hyde, 29 L. J., P. & M. 150). But the Court will not exercise such discretion in favour of an adulteress except under very exceptional circumstances (Handley 280 THE INDIAN DIVORCE ACT. 41-44. Maintenance of children. Decree of nullity : provision for children. v. Hundley, (1891) P. 124; Bent v. Bent and Footman, 2 S. & T. 392 ; 30 L. J., P. & M. 175 ; Clout v. Clout and Helbone, 30 L. J., P. & M. 176 ; Kelly v. Kttty and Saunders, 5 B. L. E. 71). But, in the case of a judicial separation on the ground of cruelty or desertion, which affected merely the other party to the suit and not the children, the party guilty of such offence would probably not be denied access to the children if the latter were handed over to the custody of the petitioner. " Order for maintenance of children " : Under sect. 39, " whenever the Court pronounces a decree of dissolution of marriage or judicial separation for adultery of the wife, if it is made to appear to the Court that the wife is entitled to any property, the Court may, if it think fit, order such settle- ment as it thinks reasonable to be made of such property, or any part thereof, for the benefit of the husband, or of the children of the marriage, or of both." And under sect. 40, after a final decree of dissolution or nullity of marriage, the Court "may inquire into the existence of ante-nuptial or post-nuptial settle- ments made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the appli- cation of the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seeins fit : provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children." Under Chapter XI. of the Act, the Court has no jurisdiction, when ordering a provision to be made for the children, to order also that the party who is to make such provision shall secure payment thereof (Hunt v. Hunt, 8 P. D. 161). Decree of nullity : provision for children of the union. Under sects. 43 and 44, the Court has jurisdiction to order provision to be made for the children of a marriage which it has annulled. "The section" (sect. 35 of the Matrimonial Causes Act, 1859) "refers to the children ' not of the marriage,' but ' the marriage of whose parents is the subject of such suit or other proceedings.' The section includes sentences of nullity of marriage, and must, therefore, in my judgment, be considered as enacting that, in cases where there is no valid marriage, the children of the union may be provided for" (Cotton, L. J., Langworthy v. Langworthy, 11 P. D. at p. 89). PROCEDURE. 281 XII. Procedure, 45. Subject to the provisions herein contained, all Code of Civil proceedings under this Act between party and party apply, shall be regulated by the Code of Civil Procedure. Except as is otherwise expressly provided in the Act, all matters of procedure in suits or proceedings under the Indian Divorce Act are to be regulated by the Code of Civil Procedure. Thus, any question as to the time within which a respondent may file an answer to a petition is to be decided not by the Eules of the English Divorce Court, but by the provisions of the Code dealing with written statements. Where, therefore, in a suit for dissolution of marriage on account of the wife's adultery, the co-respondent did not file his written statement until four days before the hearing, and did not give notice of it until the day before the hearing, the Court held that the written statement, having been filed before the first hearing, was in time (Abbott v. Abbott and Crump, 4 B. L. R., O. C. 51). But by sect. 7 of the Indian Divorce Act the Court is enabled to follow the rules and practice of the English Divorce Court in all matters which are not expressly dealt with either in the Act itself or in the Code. Thus, the Court has adopted Rule 158 of the English Rules, and ordered a husband to give security for his wife's costs (Mayhew v. Mayhew, I. L. R., xix Bomb. 293). 46. The forms set forth in the schedule to this Act, Forms of ....... ,, , petitions and with such variation as the circumstances or each case statements. require, may be used for the respective purposes men- tioned in such schedule. " Forms": Forms in But " these forms were not intended to be literally followed, but merely to serve as general examples" (Sir C. Cress well, Evans v. Evans, 1 S. & T. 78). 47. Every petition under this Act for a decree of Petition to . f state absence dissolution of marriage, or of nullity of marnage, or 01 O f collusion, judicial separation, . . . shall . . . state that there is 282 THE INDIAN DIVORCE ACT. 47. Statements to be verified. Stamp, Collusion or connivance. Verification not any collusion or connivance between the petitioner and the other party to the marriage. The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in manner required by law for the verification of plaints, and may at the hearing be referred to as evidence. The Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), s. 41, provides that ' ' Every person seeking a decree of nullity of marriage, or a decree of judicial separation, or a dissolution of marriage, or decree in a suit of jactitation of marriage, shall, together with the petition or other application for the same, file an affidavit verifying the same so i'ar as he or she is able to do so, and stating that there is not any collusion or connivance between the deponent and the other party to the marriage." See Eules 2, 3, 175, of the English Divorce Court Eules. Stamp. Under this section as originally enacted, every petition for a decree of dissolution or nullity of marriage, or of judicial separation, or of reversal of judicial separation, or for restitution of conjugal rights, or for damages, had to bear a stamp of five rupees. But by the Court Fees Act, 1870, 2nd Sched., Art. 20, every petition under the Indian Divorce Act, except a petition under sect. 44 thereof, which is specially exempted, must bear a Court fee stamp of Es. 20. " Collusion or connivance " : As to "collusion," see note to sect. 13, ante, and as to " connivance," see note to sect. 12, ante. "Shall be verified": In England the petitioner has to file an affidavit in support of his or her petition (see Eule 2). The law for the verification of plaints is contained in sects. 51 and 52 of the Civil Procedure Code of 1882. And by sect. 115 of the Code written statements filed by the respondent must be verified in the manner provided for the verification of plaints. In all cases the person verifying a petition or a written state- PEOCEDURE. 283 ment should state shortly what paragraphs he verifies of his 47. own knowledge, and what paragraphs he believes to be true ~ from the observation of others (In re Upendro Lall JBose, I. L. B., ix Calc. 675). If the petitioner or respondent is unable from * absence or other good cause to sign the petition or written statement, it may be signed by any person duly authorized by him in this behalf (sect. 51, Civil Procedure Code). If the verification is signed by a person other than the petitioner or respondent, the Court must be satisfied that the person verifying is acquainted with the facts (Kastolino v. Rastomji, I. L. R., iv Bomb. 468). " May at the hearing be referred to as evidence " : Petition may . . be referred to In England the affidavit filed in support of a petition cannot as evidence. be taken as evidence at the hearing, and the petitioner must prove his or her case aliunde (Deane v. Deane, 1 S. & T. 90). 48. When the husband or wife is a lunatic or idiot, Suits on any suit under this Act (other than a suit for restitution lunatics. of conjugal rights) may be brought on his or her behalf by the committee or other person entitled to his or her custody. See Eule 196 of the English Divorce Court Eules. " Husband or wife is a lunatic or idiot " : Petitioner It is to be noticed that this section only provides for the case of a lunatic or idiot petitioner. But by sect. 463 of the Civil Pro- cedure Code, 1882, provision is made for the due representation of either party, provided that he or she has been formally adjudged to be of unsound mind. It is doubtful whether when one of the parties is obviously of unsound mind, but has not been formally adjudged to be so, the Court can allow a self- constituted next friend to sue, or appoint a guardian ad litem to defend, on his or her behalf (see Venkatramana v. Timappa, I. L. B., xvi Bomb. 132, where it was held that the Court could * But it must be remembered that, by sect. 2 of the Indian Divorce Act, the petitioner in any suit under the Act must be resident in British. India at the time of presenting the petition. 284 THE INDIAN DIVORCE ACT. 48. do so, and, for the contrary view, Tulcaram v. Vitlial, I. L. E., xiii Bomb. 656; Jonnagadlu v. Thatiparthi, I. L. E., vi Mad. 380 ; Muhammad Kalu v. Saigulla, No. 90 Punjab Record, 1887 ; Kanwal Ram v. Bhawani Earn, No. 13 Punjab Record, 1896). By Eule 196 of the English Divorce Court Eules, " a committee duly appointed of a person found by inquisition to be of unsound mind may take out a citation or prosecute a suit on behalf of such person as a petitioner, or enter an appearance, intervene or proceed with the defence on behalf of such person as a respondent ; but if no committee should have been appointed, application is to be made to one of the registrars, who will assign a guardian to the person of unsound mind for the purpose of prosecuting, intervening in, or defending the suit on his or her behalf ; provided that, if the opposite party is already before the Court when the application for the assignment of a guardian is made, he or she shall be served with notice by summons of such application." The Court of Appeal has held that an order ought not to be made under this rule assigning a guardian ad litem to a person as regards whose alleged unsoundness of mind there is a sub- stantial and bond fide dispute, and, further, expressed a doubt whether the rule applied where the person had not been found lunatic by inquisition (Fry v. Fry, 15 P. D. 50; s. c., Routh y. Fry, 59 L. J., P. & M. 43). In England it was formerly held that, though the committee of a lunatic might sue on his or her behalf for a judicial separa- tion (Woodgate v. Taylor, 2 S. & T. 512), a committee could not sue on behalf of such person for dissolution of marriage (Mordaunt v. Mordaunt, L. E., 2 P. 109; 39 L. J., P. & M. 6). But it is now settled that a committee can sue either for a dis- solution of marriage (Baker v. Baker, 6 P. D. 12; 49 L. J., P. & M. 83), or for nullity of marriage (Hancock v. Peatty, L. E., 1 P. 335). It was also held formerly that a suit for dissolution of mar- riage could not proceed against a respondent who was of un- sound mind, and that in such a case proceedings must be stayed (Bawden v. Bawden, 31 L. J., P. & M. 34 ; 2 S. & T. 417). This case has, however, been overruled by the decision of the House of Lords in Mordaunt v. Moncrieffe (L. E., 2 H. L. (Sc.) 374 ; 43 L. J., P. & M. 49), in which it was held that the lunacy of the respondent is no ground for staying proceedings in a suit for dissolution of marriage. As to how far the insanity of the respondent is a ground of PROCEDURE. 285 defence in a suit for dissolution of marriage on the ground of 48. his or her adultery, see note to sect. 10, ante. 49. Where the petitioner is a minor, he or she shall Suits by minors. sue by his or her next friend to be approved by the Court ; and no petition presented by a minor under this Act shall be filed until the next friend has undertaken in writing to be answerable for costs. Such undertaking shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit. See Rules 105 108 of the English Divorce Court Eules. " Where petitioner is a minor " : Minors. As nothing in the Indian Majority Act (IX of 1875) affects the capacity of any person to act in the matters of marriage or divorce (sect. 2 (a)), the age of minority will depend upon the personal law of the class to which the party belongs. It has been held that the minority of English subjects not domiciled in British India continues till the attainment of twenty-one years (Bohilkand and Kumaon Sank v. Roiv, I. L. E., vii All. 490). Minor Petitioner. (a) Petitioner. Chapter XXXI of the Civil Procedure Code, 1882, deals with the subject of suits by, and against, minors. ' ' Every suit by a minor shall be instituted in his name by an adult person, who in such suit shall be called the next friend of the minor, and may be ordered to pay any costs in the suit as if he were the plaintiff. " If a minor has a guardian appointed or declared by an authority competent in this behalf, a suit shall not be instituted on behalf of the minor by any person other than such guardian, except with the leave of the Court granted after notice to such guardian, and after hearing any objections which he may desire to make with respect to the institution of the suit, and the Court shall not grant such leave unless it is of opinion that it is for the welfare of the minor that the person proposing to institute 286 THE INDIAN DIVORCE ACT. 49. the suit in the name of the minor should be permitted to do so " (sect. 440, Civil Procedure Code). A father is entitled (at least in England) to institute a suit for the nullity of his minor child's marriage in his own right ; if, therefore, such suit is brought by the father, the petition must show on the face of it whether the suit is instituted in the father's own right or by him as next friend ( ]Vells v. Cottam, 3 S. & T. 364 ; 33 L. J., P. & M. 41). Undertaking Undertaking as to costs. This must bear a Court fee stamp of by next friend g , c t p A t 187Q 2nd gch NQ _ ? , n.a rn . Z)., when and in such manner as the Court shall order, all such costs of such suit as the Court shall direct him [or her] to pay to the said D. D., I will forthwith pay the same to the proper officer of this Court. Dated this day of , 186 . (Signed) A. B. 323 APPENDIX (A). MAKKIAGE. * " Marriage, Validity of " : Marriage, As has been already stated (see notes to sect. 19, ante], the validity of . essentiuh'a of a marriage depend for their validity upon the law of the parties' domicil. The validity of a marriage as regards its formalities depends, on the other hand, upon the law of the country in which the mar- riage was solemnized. Therefore, " although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicil, the marriage may be good everywhere " (Lord Campbell, Brook v. Brook, 9 H. L. Ca. 193). Conversely, if as regards its formalities, a marriage is invalid by the lex loci celebrationis, it is invalid (subject to the exception to be mentioned) by the law of every other country, even though it was solemnized in accordance with the forms required by the lex domicil ii of the parties. Thus, a marriage solemnized at Antwerp between two English persons in the British church by a Protestant clergyman, appointed by the English Government, but without performance of the ceremonies required by Belgian law, was held to be invalid as contrary to the lex loci (Kent v. Burgess, 11 Sim. 361; 5 Jur. 166). But it is, of course, competent to the legislature of any country to enact that, for the purposes of its oivn municipal latv, marriages between its subjects shall be valid though not celebrated in due accordance with formalities prescribed by the law of the country where solemnized, e.g., the statute 4 Geo. IV. c. 91, which renders valid, for the purposes of municipal law, mar- riages between British subjects celebrated abroad, otherwise than in accordance with the forms prescribed by the lex loci, in the chapel or house of a British ambassador, or in a British factory. * By the term "marriage" is meant "a marriage in Christendom," i.e., the voluntary union for life of one man with one woman to the exclusion of all others, and a union which is not repugnant to the principles of Christianity. In no case will the Courts of a country recognize as a valid marriage a union which the law of that country regards as incest (Fenton v. Livingstone, 3 Macq., H. L. Ca. 497 ; 5 Jur., N. S. 1183). 324 APPENDIX (A). App. (A). Marriage, celebration of" Celebration of (a) Marriages in India between persons one or both of whom marriage is or are a Christian or Christians, are governed by the provi- (a) of Chris- sions of the Indian Christian Marriage Act (XV of 1872). By tians ; sect. 4 of that Act, any such marriage solemnized otherwise than in accordance with the provisions of sect. 5 shall be void. Sect. 5 of the Act enacts that : ' ' Marriages may be solemnized in India " (i) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies, and customs of the church of which he is a minister ; " (ii) by any clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies, and customs of the Church of Scot- land ; " (iii) by any minister of religion licensed under this Act to solemnize marriages ; " (iv) by, or in the presence of, a marriage registrar appointed under this Act ; ' ' ( v ) ^7 any person licensed under this Act to grant certifi- cates of marriage between native Christians." It is further provided by sect. 77 of the Act that "whenever a marriage has been solemnized in accordance with the provisions of sects. 4 and 5, it shall not be void merely on account of any irregularity in respect of any of the following matters, namely : ' ' (i) Any statement made in regard to the dwelling of the persons married, or to the consent of any person whose consent is required by law ; " (ii) The notice of the marriage ; ' ' nil) The certificate or translation thereof ; ' ' (ivj The time and place at which the marriage has been solemnized ; " (v) The registration of the marriage." It may be a question whether sect. 77 was intended to be exhaustive, that is to say, whether irregularities other than those therein specified would have the effect of rendering a marriage invalid. "Would, e.g., a marriage celebrated by a mar- riage registrar otherwise than in the presence of the two witnesses required by sect. 51 of the Act be invalid ? In England, no doubt, it has been held that the statute 4 Geo. IV. c. 76 (sect. 28), which requires that two witnesses should be present at a mar- riage and sign the marriage register, is merely directory, and that non-compliance with such directions is no ground for annulling a marriage (Wing v. Taylor, 30 L. J., P. & M. 258). But the English statute under which the case cited was decided makes no mention of irregularities which shall not render a marriage invalid. However this may be, it is clear that the Courts of this country cannot entertain a suit of a matrimonial nature otherwise than as provided by the Indian Divorce Act, and have, therefore, no jurisdiction to grant a decree of nullity on the ground that the marriage is invalid for reasons other than MARRIAGE. 325 those specified in sect. 19 of the Act (Gasper v. Gonsalves, 13 App. (A). B. L. E. 109). Although a marriage which has been duly solemnized in accordance with the provisions of sects. 4 and 5 is not void merely because of any irregularity in respect of the notice of the marriage, it may well be that a notice in a wholly false name, given fraudulently and with intent to deceive the other party to the marriage, cannot amount to a notice at all, and may possibly entitle the party so deceived to pray for a decree of nullity on the ground that his or her consent to such alleged marriage was obtained by fraud (see sect. 19 of the Indian Divorce Act, and cf. Holmes v. Simmons, L. E., 1 P. 523 ; 37 L. J., P. & M. 58). (b) The provisions of the Indian Divorce Act apply to mar- (b) under Act riages contracted under Act III of 1872, which was enacted for HI f 1872. the purpose of providing a form of marriage for persons, neither of whom professes the Christian, Jewish, Hindu, Muhammadan, Parsi, Buddhist, Sikh, or Jaina religion. By sect. 2 of that Act, marriages may be celebrated between such persons upon the following conditions : (i) Neither party must, at the time of the marriage, have a husband or wife living ; (ii) The man must have completed his age of eighteen years, and the woman her age of fourteen years, according to the Gregorian calendar ; (iii) Each party must, if he or she has not completed the age of twenty-one years, have obtained the consent of his or her father or guardian to the marriage ; (iv) The parties must not be related to each other in any degree of consanguinity or affinity which would, according to any law to which either of them is subject, render a marriage between them illegal. " 1st Proviso.- No such law or custom, other than one relating to consanguinity or affinity, shall prevent them from marrying. " 2nd Proviso. No law or custom as to consanguinity shall prevent them from marrying unless a relationship can be traced between the parties through some common ancestor who stands to each of them in a nearer relation- ship than that of great-great-grandfather, or great-great- grandmother. or unless one of the parties is the lineal ancestor, or the brother or sister of some lineal ancestor of the other." By sect. 17 any marriage contracted under the Act may be declared null and void or dissolved in the manner provided, and for the causes mentioned in the Indian Divorce Act, or on the ground that it contravenes some one or more of the conditions prescribed in clauses (1), (2), (3), or (4) of sect. 2 of the Act. Accordingly, a marriage contracted between parties of whom one is under the age of twenty-one years, may be declared null and void on the ground that the consent of the father or guardian of such party was not previously obtained to the marriage. The absence of such consent in the case of marriages contracted 326 App. (A). Marriage Acts Prohibitory words, how construed. " Omnia pr petitioner's wishes" (Dent v. Deid, 4 S. & T. 105 ; 34 L. J., P. & M. 118 ; Mycock v. Myrock, L. R., 2 P. 98 ; 39 L. J., P. & M. 56; Duplany v. Dnplariy, (1892) P. 53). And it is competent for the Court to grant the petitioner a decree for judicial separation, although the petition prays only for a decree of dissolution of marriage, if the facts proved will entitle the petitioner to the former, but not to the latter decree (Smith v. Smith, 1 S. & T. 359; 28 L. J., P. & M. 27). 352 APPENDIX (E). App. (E). Changing suit for judicial separation into one for dissolution. Adding claim for damages against co- respondent. The Court has also granted an application by a wife that a petition for judicial separation, filed by her, might be dismissed, and that she might substitute for it a petition for dissolution of marriage upon the terms of her paying the costs (Lewis v. Lewis, 29 L. J., P. & M. 123). The Court has also allowed a petitioner, in a case in which both parties were before the Court, to amend her petition by adding a charge of adultery, of which she had no previous knowledge, and to pray for a dissolution of marriage instead of for judicial separation, without issuing a fresh citation, but ordered the amended petition to be re-served on the respondent (Cartlidge v. Cartlidge, 4 S. & T. 249; 31 L. J., P. & M. 135). A petitioner has also been allowed, upon payment of costs, to amend his petition for dissolution of marriage by adding a prayer for damages against the co-respondent (Bartlett v. Barthtt and Balmanno, 34 L. J., P. & M. 64). Appearance of parties. If neither party appears. If respondent fails to appear. Appearance of parties at hearing : Chapter VII of the Civil Procedure Code, 1882, deals with the appearance of the parties and the consequence of non- appearance. As to the effect of appearance upon the question of jurisdiction, see note to sect. 4, ante. Speaking generally, nothing can give a Court jurisdiction which it does not inherently possess ; but if the want of jurisdiction does not arise from incapacity on the part of the Court to entertain the suit or pro- ceeding if it is merely that the Court has no jurisdiction over the person of one of the parties the appearance of such party, except under protest, will be taken as an admission of, and submission to, the jurisdiction of the Court. " If on the day fixed for the defendant to appear and answer, or on any subsequent day to which the hearing of the suit is adjourned, neither party appears, the suit shall be dismissed, unless the judge, for reasons to be recorded under his hand, otherwise directs" (Civil Procedure Code, s. 98). But in such a case the petitioner may, subject to the law of limitation, bring a fresh suit, or, if within thirty days from the order dismissing the suit, he satisfies the Court that there was sufficient excuse for his non-appearance, the Court shall pass an order to set aside the dismissal and appoint a day for pro- ceeding with the suit (Ib., s. 99). If on the day appointed the plaintiff (petitioner) appears, and the defendant (respondent or co-respondent) does not appear, and it is proved that the summons has been duly served upon such defendant and in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court may proceed ex parte against such defendant (Ib., 8. 100). If an ex parte decree is passed against a defendant, the latter can apply under sect. 108 of the Code to have such decree set aside for any of the reasons therein specified. But a decree nisi is not a "decree" within the definition of a decree given in sect. 1 of the Code, and, consequently, an ex parte decree nisi cannot be set aside under sect. 108. The defendant must, if he NOTES ON PLEADINGS AND PRACTICE. 353 wishes to have such decree nisi reversed, apply, within the App. (E). time prescribed by the Limitation Act, 1877, for a review of ~ i'udgment under sect. 623, Civil Procedure Code (King v. King, . L. E., vi Bomb. 416). Nor can a respondent, against whom a decree nisi has been passed ex parte, intervene, under sect. 16 of the Indian Divorce Act, to show cause against the decree being made absolute. But where a respondent attempted to intervene in this manner, and based his application on affidavits which alleged, inter alia, collusion on the part of the petitioner, the Court refused the application, but ordered the affidavits to be filed and notice to be given to the petitioner to the effect that the decree would not be made absolute until the matters set forth in the affidavits had been cleared up (Stephen v. Stephen, I. L. E., xvii Calc. 570). " If the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit, as if he had appeared on the day fixed for his appearance " (Civil Procedure Code, s. 101). " If the defendant appears and the plaintiff does not appear, If petitioner the Court shall dismiss the suit, unless the defendant admits fails to the claim, or part thereof, in which case the Court shall pass a appear. decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder" (Ibid., s. 102). It is hardly necessary, however, to remark that the Court would certainly not grant a decree for dissolution or nullity of marriage, or for judicial separation, in the absence of the peti- tioner, simply upon the admissions of the respondent. " When a suit is wholly or partially dismissed under sect. 102, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if it be proved that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. ' ' No order shall be made under this section unless the plaintiff has served the defendant with notice in writing of his intention" (Ibid., s. 103). In England, the rule is, that if the petitioner does not appear on the day appointed for the hearing, the respondent is entitled to have the petition dismissed (Desmarest v. Desmarest, 31 L. J., P. & M. 34). But, before the Court will order the petition to be dismissed, it must be satisfied that the petitioner has no intention of going on with the proceedings ; otherwise it will issue a rule for the petitioner to show cause why the petition should not be dis- missed (Curtis v. Curtis, 38 L. J., P. & M. 9; Sound v. Hound, 20 L. T. 87). K. A A 354 APPENDIX (E). App. (E). Written statement in answer to petition : Answer. Under the provisions of the Civil Procedure Code, 1?82 (Chap. VIII), a defendant in an ordinary civil suit is not bound to file a written answer to the plaint, unless specially required to do so by the Court (see sects. 1 10, 112). There can, however, be no doubt that in suits under the Indian Divorce Act the Court will invariably require a written statement from a respondent or a co-respondent who appears in such suit. The time within which a written statement, which the respon- dent or co-respondent desires to tender, must be filed is that prescribed by the provisions of the Civil Procedure Code, and not that fixed by the English rules (Abbott v. Abbott and Crump, 4B. L. R., 0. C. 51). " If any party from whom a written statement is so required" i.e., under sect. 112 "fails to present the same within the time fixed by the Court, the Court may pass a decree against him, or make such order in relation to the suit as it thinks fit " (Civil Procedure Code, s. 113). In suits for dissolution or nullity of marriage, the Court is not likely to grant a decree against the respondent, simply because he or she has not so presented the reqiiired written statement. Possibly the order it would pass in such an event would be one founded on the practice of the English Court in such cases. Rule 50 of the English Rules provides that ' ' either of the respondents in the cause, after entering an appearance, without filing an answer to the petition in the principal cause, may be heard in respect of any question as to costs, and a respondent, who is husband or wife of the petitioner, may be heard also in respect to any question as to custody of children, but a respondent who may be so heard is not at liberty to bring in affidavits touching matters in issue in the principal cause, and no such affidavits can be read or made use of as evidence in the cause." The only objection to a rule of this kind is that it might shut out valuable evidence. If, for instance, the respon- dent in default is not at liberty to give evidence in the principal cause, there is considerable likelihood of the Court giving a decree to a petitioner who, upon the excluded evidence, might have been proved guilty of collusion or connivance or misconduct disentitling him or her to relief. Frame of " Written statements shall be as brief as the nature of the written case admits, and shall not be argumentative, but shall be con- statements, fined as much as possible to a simple nai'rative of the facts which the party by whom, or on whose behalf, the written statement is made, believes to be material to the case, and which he either admits or believes he will be able to prove. Every such state- ment shall be divided into paragraphs numbered consecutively, and each paragraph containing as nearly as may be a separate allegation" (Civil Procedure Code, s. 114). In ordinary civil suits the rule is that a written statement is not in the nature of a pleading, and should not be written after inspecting that of the other party, nor by way of rejoinder to it (see Jadub Mam v. Earn Luchun, 5 W. R. 56). This rule, how- NOTES ON PLEADINGS AND PEACTICE. 355 ever, cannot apply to a respondent or co-respondent's written App. (E). statement by way of answer to a petition (see sect. 46, Indian Divorce Act, and the Forms given in the Schedule to the Act). An answer is intended to be a substantial statement of the respondent or co-respondent's case ; it should bo as brief as the circumstances admit, and should not contain anything in the shape of evidence (Oaston v. Oaston, 13 L. T. 412). Every written statement must be signed and verified in the Verification, manner provided for signing and verifying plaints, and cannot bo received until it is so signed and verified (Civil Procedure Code, s. 115). "If it appears to the Court that any written statement, Amendment, whether called for by the Court or spontaneously tendered, is &c. of written argumentative or prolix, or contains matter irrelevant to the statement, suit, the Court may amend it then and there, or may, by an order to be endorsed thereon, reject the same, or return it to the party by whom it was made for amendment within a time to be fixed by the Court, imposing such terms as to costs or other- wise as the Court thinks fit. When any amendment is made under this section, the judge shall attest it by his signature. "When a statement has been rejected under this section, the party making it shall not present another unless it be ex- pressly called for or allowed by the Court " (Civil Procedure Code, s. 116). Under the Civil Procedure Code interrogatories should not be framed for the purpose of supplying defects of pleading. If a written statement in answer to a petition is vague or prolix, or contains irrelevant matter, it should either be amended under sect. 116 of the Code, or rejected and another written statement called for under sect. 112. Or, if the Court prefers, the Court may, under sect. 146, examine the parties upon their pleadings, ascertain what facts they are at variance upon, and thereupon frame and record such issues as the Court thinks fit (cf. AU Kadir v. Oobind Das, I. L. E., xvii Calc. 840). The English practice is for the petitioner to apply by summons in chambers for particulars of charges set up in an answer, if such charges are not set out with sufficient particularity (Hiygs v. Hiqqs and Hopkins, 11 W. E. (Eng.) 154 ; see English Eules, Nos. 38, 181184). As a general rule, the respondent or co-respondent in a suit What may under the Divorce Act is entitled to plead every matter which be pleaded in is material for the consideration of the Court in adjudicating answer, upon the petition before it (Allen v. Allen and D 1 Arcy, 28 L. J., P. & M. 81). And ' ' in any suit instituted for dissolution of marriage, if the respondent opposes the relief sought, on the ground, in case of such a suit instituted by a husband, of his adultery, cruelty, or desertion without reasonable excuse, or in case of such a suit instituted by a wife, on the ground of her adultery * and cruelty, * Qita;rc, whether "and" here should be "or." Possibly, what is intended is, that a husband is not at liberty to oppose his wife's suit for dissolution of marriage merely on the ground of her cruelty. But, A A3 356 APPENDIX (E). App. (E). the Court may, in such suit, give to the respondent, on his or her application, the same relief to -which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such cruelty or desertion " (Indian Divorce Act, s. 15). Under this section the respondent may plead the cruelty of the petitioner as a ground for refusing him or her the relief sought, though cruelty on the part of the petitioner was held by the Ecclesiastical Courts to be no bar to a suit for dissolution on the ground of adultery (see TuthiU v. TutJuU, 31 L. J., P. & M. 214). Anything in the shape of evidence ought not to be pleaded (Oaston v. Gaston, 13 L. T. 412). Ante-nuptial incontinence on the part of the petitioner should not be pleaded, even though it and the adultery counter-charged against petitioner are alleged to have been committed with the same person (Mtnoford v. Mawford, 14 W. E. (Eng.) 516). In answer to his wife's suit for dissolution of marriage, the husband is not entitled to plead an impediment to marital inter- course supervening after marriage in conseqiience of the disease of the wife (M. v. M., 31 L. J., P. & M. 168), nor is a plea that she wilfully withdrew from his bed and refused him marital rights admissible (Rowe v. Rowe, 4 S. & T. 162; 34 L. J., P. &M. 111). As is clear from sect. 15 of the Indian Divorce Act, a wife may plead, in answer to her husband's suit for dissolution of marriage, desertion without reasonable excuse on his part. And such desertion, if proved, will be a bar to his suit ( Yeatman v. Yeatman and Rummell, L. E., 2 P. 187 ; 39 L. J., P. & M. 77). It may, possibly, act as a bar to his suit for judicial separation on the ground of her adultery (Lempriere v. Lempriere, L. E,., 1 P. 569). For if " chastity be the duty of the wife, protection is no less the duty of the husband." But desertion on the part of the wife is no bar to her suit for judicial separation (Duplany v. Duplany, (1892) P. 53 ; 66 L. T. 267). It is, however, a ground upon which the Court may refuse, under sect. 11 of the Indian Divorce Act, to grant her a decree for dissolution of marriage. Accordingly, the husband would seem entitled to plead such desertion on her part, and oppose the relief sought on that ground, though he might not be entitled to apply, under sect. 15, for such relief in respect thereof as he would have been entitled to in case he had pre- sented a petition praying for such relief. Deed of An ordinary deed of separation is no bar to a suit under the separation. Indian Divorce Act. But a covenant not to sue for dissolution of marriage or for nullity of marriage on the ground of impo- tence, or for judicial separation (*and, possibly, also a covenant Evidence should never be pleaded. Ante-nuptial incontinence. Impediment to marital intercourse. Refusal to render marital rights. Desertion. surely, he is entitled to plead her cruelty, or desertion without reason- able excuse, as a ground for a decree of judicial separation in his favour if her petition is dismissed. As a bar to her suit for dissolution her adultery would, per se, be sufficient. * As to suits for restitution of conjugal rights, see note to sect. 33. NOTES ON PLEADINGS AND PRACTICE. 357 not to sue for restitution of conjugal rights), is a bar to any App. (E). suit subsequently instituted for the purpose of obtaining the relief which the petitioner has covenanted not to sue for (Besant V. Wood, 12 Ch. D. 605; Sparing v. Sparing, 32 L. J., P. & M. 116 ; Tress v. Tress, 12 P. D 128 ; 56 L. J., P. & M. 93 ; Moore v. Moore, 12 P. D. 193 ; 56 L. J., P. & M. 104 ; Brown v. Brown and Shelton, L. E., 3 P. 202; 43 L. J., P. & M. 47 ; Parkinson V. Parkinson, L. E., 2 P. 35 ; 39 L. J., P. & M. 14 ; Marshall v. Marshall, 5 P. D. 19; Clark v. Clark, 10 P. D. 188; 54 L. J., P. & M. 57; Aldridge v. Aldridge, 13 P. D. 210; 58 L. J., P. & M. 8). Any misconduct on the part of a petitioner in a suit for Misconduct dissolution of marriage which may have conduced to the on part of respondent's adultery is a ground upon which the Court may petitioner not refuse to grant the petitioner a decree, and may, therefore, be amounting to pleaded by way of answer to such suit. Thus, in a suit by the matrimonial husband for dissolution of marriage, the wife was allowed to offence, plead acts of undue familiarity on the part of the petitioner with a certain lady, on the ground that, if the acts alleged were proved, it was not impossible that the Court might come to the conclusion that the petitioner had by his acts conduced to the adultery on the part of the wife((7oa; v. Cox, 70 L. T. 2000. A.). In answer to a charge of "desertion," the respondent may Answer to plead that the separation was by mutual consent, and, of course, charge of may set out facts showing that there was reasonable cause for desertion, the alleged desertion. But such facts should be stated succinctly (Hill v. Hill, 33 L. J., P. & M. 187). A plea that the husband has made the wife a reasonable allowance is irrelevant, and is no answer to her charge of desertion (Yeatman v. Yeatman, L. E., 1 P. 489; 37 L. J., P. & M. 37). But to such a charge the husband may plead a bond fide offer by him, before the elapse of the full statutory period of two years, to resume cohabitation (Lodge v. Lodge, 15 P. D. 159 ; 59 L. J., P. & M. 84; French- Brewster v. French- Brewster, 62 L. T. 609). In answer to a suit for restitution of conjugal rights, any- Answer to thing may be pleaded which would be a good ground for a suit suit for for judicial separation or for a decree of nullity of marriage restitution (Indian Divorce Act, s. 33). . f conjugal In a suit for restitution of conjugal rights, it is not admissible n g nts - to plead the petitioner's incontinence before marriage with a view of showing that her child, born after marriage, is not the child of the respondent (Mason v. Mason, 61 L. T. 304 ; and generally, as to what may or may not be pleaded in answer to a petition for restitution of conjugal rights, see note to sect. 33, ante). To a charge of cruelty an answer alleging that the use of Answer to force was necessary and justified by the conduct of the petitioner charge of is bad ; the nature of the petitioner's conduct should be stated, cruelty, but particulars of time and place need not be given (Shaw v. Shaw, 2 S. & T. 515; 31 L. J., P. & M. 35). But the Court in another case refused to strike out a plea by the respondent (the husband) that the petitioner had habitually 358 APPENDIX (E). Answer to suit for nullity of marriage. Counter- charges. Doubt as to legal effect of plea. Interroga- tories and discovery. App. (E). treated him with insolence and neglect, set his orders at defiance, ~ and for two years wilfully absented herself from his residence. The Court considered that the plea was properly introduced as explanatory of the violent conduct imputed to the respondent (Hughes v. Hughes, L. R, 1 P. 219 ; 35 L. J., P. & M. 94). In suits for nullity of marriage the only relevant issue is, marriage or no marriage; accordingly, it is not open to the respondent to plead, in answer to the suit, adultery, cruelty, desertion or the like on the part of the petitioner (see Humphrey a v. Williams f. c. Hump/treys, 29 L. J., P. & M. 62; Taverntr f. c. Ditchford v. Ditchford, 33 L. J., P. & M. 105). The rule that charges in the petition should be set out with particularity sufficient to enable the respondent to prepare to meet such charges, applies equally to counter-charges in an answer. No plea will be ordered to be struck out where a reasonable doubt exists as to the legal effect of the allegations therein con- tained, and where such legal effect can properly be discussed after all the facts have been elicited at the trial (Russdl v. Russell, 71 L. T. 268). Interrogatories and discovery of documents : These subjects are dealt with in Chapter X of the Civil Pro- cedure Code, and it is not necessary to refer to them in detail. The Calcutta High Court has held that interrogatories should not be framed to anticipate or supply defects of pleadings, or to ascertain the case of the other side. If the pleading of either party is vague, the Court may call for a further written state- ment under sect. 112 of the Civil Procedure Code, or may frame and record issues under sect. 146 of the Code until the case raised by the pleadings is recorded with sufficient clearness (Ali Kadir v. Golind Das, I. L. E., xvii Calc. 840). The respondent is entitled to have brought into Court letters written by her to the petitioner while the facts to which they speak were fresh in her memory. If the petitioner has none, he should make an affidavit to that effect. Should any letters be brought into Court, the Court will look into them, and decide which of them the respondent is entitled to inspect as being material to the case (Gordon v. Gordon, 3 B. L. R., O. C. 100; cf. Shaiv v. Shaw, 2 S. & T. 642; 31 L. J., P. & M. 95). So, at the instance of the co-respondent, the petitioner was ordered to bring into the registry letters written by the respon- dent to him, or to file an affidavit that he had no such letters, or that they contained no such matters as suggested by the affidavit in support of the summons (Pollard v. Pollard and Hemming. 3 S. & T. 613). When dis- But discovery ought not to be required from the parties in a covery should divorce suit for the purpose of proving adultery. ' ' If there n t be i s reason to believe that a party has documents relating to required. matters in question in the cause, other than his or her adultery, it would be quite right to require an affidavit as to such documents ; but if there is reason to believe that the affidavit is required only for the purpose of discovering documents NOTES ON PLEADINGS AND PRACTICE. 359 tending to prove adultery by the person required to make the App. (E). affidavit, no order for such affidavit ought to be made " (Lindley, L. J., Redfern v. Redfern, (1891) P. 139; 60 L. J., P. & M. 9 0. A.^. The reason for this is, that "it is one of the inveterate piinciples of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture or ecclesiastical censure " (Bowen, L. J., ibid.]. But this rule does not apply in this country, for no witness is excused from answering a relevant question upon the ground that it may tend to expose him to penalty or forfeiture of any kind (sect. 132, Indian Evidence Act, 1872). The hearing of the suit : Hearing of The procedure laid down in Chap. XV of the Civil Procedure Code, 1882, for the hearing of ordinary civil suits, is equally applicable to suits and proceedings under the Indian Divorce Act. In ordinary civil suits ' ' the plaintiff has the right to begin Right to unless where the defendant admits the facts alleged by the begin, plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin " (Civil Procedure Code, 1882, s. 179, explanation). The same rule applies in suits for dissolution of marriage. Thus, where the respondent in her answer has not traversed the adultery alleged in the petition, but has set up counter-charges of adultery, cruelty and misconduct, upon which counter- charges issue has been joined, it is for the respondent to begin (Bacon v. Bacon and Bacon, 2 S. & T. 53 ; 29 L. J., P. & M. 61). But if the adultery charged in the petition is traversed, the petitioner has the right to begin, although the respondent alleges nullity of marriage by reason of the petitioner's incurable im- potence (St-rrd v. Serrtl and Bamford, 2 S. & T. 4'22; 31 L. J., P. & M. 55). *In a suit for restitution of conjugal rights, it is incumbent on the petitioner to first prove the marriage, and this, too, though the respondent may have admitted it. Accordingly, the petitioner has the right to begin even -when the substantive issue is upon the respondent (Burroughs v. Burroughs, 2 S. & T. 544; 31 L. J., P. & M. 56). " Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on these issues or reserve it by way of answer to the evidence produced by the other party. In the latter case the party beginning may produce evidence on * If, however, the case is being tried hy a, jury, the respondent will have the right to begin if the substantive issue is upon him or her (Cherry v. Cherry, 1 S. & T. 319 ; 28 L. J., P. & M. 36). 360 APPENDIX (E\ App. (E). those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning ; but the party beginning will then be entitled to reply generally on the whole case " (Civil Procedure Code, 1882, s. 180). The practice in England is very similar. Thus, where, in answer to a petition by a husband for dissolution of marriage on the ground of his wife's adultery, the respondent counter- charged adultery on the part of the petitioner, it was held that the petitioner might, as part of the case opened by him, give his own evidence and call his witnesses in answer to the respondent's charge, or that he might, in the alternative, reserve his answer to the charge until the respondent's witnesses in support of it had been examined ; but that he was not entitled to divide his case by giving his own evidence in the opening, and afterwards calling his witnesses in reply to the respon- dent's charge (Jackman v. Jackman, 14 P. D. 62; 68 L. J., P. & M. 72). Evidence of Examination and cross-examination of the parties : the parties. Any party to a suit under the Indian Divorce Act may "offer" himself or herself as a witness, and shall be examined and may be cross-examined and re-examined like any other witness (sect. 51, Indian Divorce Act). In other words, any party to such a suit is a competent witness, but is only a compellable wit- ness under the circumstances specified in the note to sect. 51 of the Act. But once a party has voluntarily appeared as a witness, he or she is not excused from answering any question as to any matter relevant to the issue in any suit, or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend, directly or indirectly, to criminate him or her, or that it will expose, or tend, directly or indirectly, to expose him or her to penalty or forfeiture of any kind (sect. 132, Indian Evidence Act, 1872). A co-respondent's counsel is not entitled to cross-examine a witness upon such part of his evidence as is not evidence against the co-respondent. He cannot, therefore, cross-examine a wit- ness who speaks to a confession made by the respondent (Pearman V. Pearman and Burgess, 29 L. J., P. & M. 54). The evidence of one party cannot be received as evidence against another party in the same litigation unless the latter has had an opportunity of testing it by cross-examination. Consequently, in a divorce suit the evidence of the respondent is not admissible against the co-respondent if the Court refuses to allow the latter to cross-examine upon it. But, semble, a right of cross-examination exists between a respondent and a co-respondent, and if cross-examination is permitted, the evi- dence of either party is admissible against the other (Allen v. Allen and Bell, (1894) P. 248 ; 63 L. J., P. & M. 1200. A.). According to the English practice, a co-respondent fi'om whom damages are claimed cannot, if he has appeared and filed no answer, cross-examine the petitioner's witnesses at the hearing NOTES ON PLEADINGS AND PRACTICE. 361 or address the jury upon the question of damages. But where App. (E). the damages have been assessed and the decree has been pro- ~ nounced, he is entitled to recall any of the witnesses and cross- examine them upon the question of costs (Lyne v. Lyne and Blacl-ney, L. E., 1 P. 508; 37 L. J., P. & M. 9). "Where the Queen's Proctor intervenes and alleges collusion and adultery on the part of the petitioner, he is entitled to cross-examine all the witnesses called by the petitioner and the respondent, and also the petitioner and respondent themselves (provided that the latter have " offered " themselves as witnesses at the hearing of the suit) (Boardman v. Boardman, L. E., 1 P. 233). ( 362 ) APPENDIX (F). COSTS. Provisions in Indian Divorce Act as to coats. Discretion of Court in matter of costs. The only provisions of the Indian Divorce Act which deal with the subject of costs are those contained in (a) sect. 16 ' ' The High Court may order the costs of counsel and witnesses and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them, as it thinks fit, including a wife if she have separate property " ; (b) sect. 35 " Whenever in any petition presented by a husband the alleged adulterer has been made a co-respondent and the adultery has been established, the Court may order the co-respondent to pay the whole or any part of the costs of the proceedings : Provided that the co-respondent shall not be ordered to pay the peti- tioner's costs (1) if the respondent was at the time of the adul- tery living apart from her husband and leading the life of a prostitute, or (2) if the co-respondent had not at the time of the adultery reason to believe the respondent to be a married woman. Whenever any application is made under sect. 17, the Court, if it thinks that the applicant had no grounds or no sufficient grounds for intervening, may order him to pay the whole or any part of the costs occasioned by the application" ; (c) sect. 55 "Provided also, that there shall be no appeal on the subject of costs only"; and (d) sect. 49. There can, how- ever, be no doubt that the Court has, in addition to the powers given it by sects. 16 and 35, full power over the payment of costs, either under sect. 7 of the Act, which would confer upon it * the powers of the English Court, or under Chapter XVIII of the Civil Procedure Code, 1882 (see sect. 45 of the Indian Divorce Act). For the exercise of the wide discretion which the Court possesses in the matter of costs no general rules can be laid down, and in each case the Court, in making an order as to the payment of the costs of any proceeding under the Act, will regard the circumstances of the particular case. At the same time this discretion is a judicial discretion, to be exercised in * See Rules 151 158, 177 179, 199201, 216218 of the English Divorce Court Rules, and sect. 51 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85). COSTS. 363 accordance with judicial principles. Such general principles App. (F). may be summarized as follows : Costs incurred by wife pending suit : Wife's costs pendente lite. As a general rule a wife, whether she ~be the petitioner or the , , j * 1-j.i j * T. T. j * j -i * i General rule. respondent, is entitled to have her coats up to, and of and incidental, to, the hearing taxed de die in diem, and the husband may be ordered to pay into Court a sum sufficient to cover such costs or to give security for the same. If the sum be paid into Court, the costs of the wife are taxed and paid out of such sum de die in diem to her or to her attorney. AUTHOKITIES Weber v. Weber and Pyne, 1 S. & T. 219; 28 L. J., P. &M. 11. Natall v. Natall, I. L. E., ix Mad. 12. Muyhew v. Mayhew, I. L. E., xix Bomb. 293. KMy v. Kelly and Saunders, 3 B. L. E., App. 4. Broadhendv. Broadhead, 5 B. L. E., App. 9. Eule 158, English Divorce Court Eules. The rule applies to suits for nullity of marriage as well as to other matrimonial suits. AUTHORITY Bird v. Bird, 1 Lee, 209. The fact that the wife is, at the time when the husband presents his petition, living in adultery with the co-respondent, or is separated from her husband under sach circumstances that she does not pledge his credit, is not a ground for refusing her her costs pendente lite, though alimony ptndente lite might be refused under such circumstances. AUTHORITY Gordon v. Gordon, 3 B. L. E., App. 13. But she is entitled to such costs only up to the time when her guilt is proved ; and after her adultery has once been established she is not, as an ordinary rule, entitled to costs, though the case may, in a sense, be still said to be pending. AUTHORITY Whitmore v. W hit-more, 35 L. J., P. & M. 51. To the general rule, as above stated, there are certain excep- Exceptions tions : to rule : (a) A wife, who has sufficient separate property of her own, / a \ wife should be left to pay her own costs. possessed of AUTHORITIES Wells v. WelU and Cottam, 33 L. J., P. & separate M. 72. property. Milne v. Milne, L. E., 2 P, 202; 40 L. J., P. & M. 13. Natall v. Natall, I. L. E., ix Mad. 12. Thomson v. Thomson, I. L. E., xivCalc. 580. Mayhew v. Mayhew, I. L. E., xix Bomb. 293. Eule 158, English Divorce Court Eules. At the same time the mere fact that the wife has separate property sufficient to pay her own costs is not per se enough to 364 APPENDIX (F). App. i^F). Wife's costs pendente lite, (b) Wife in receipt of ample allow- ance from husband. (c) Husband and wife sub- ject to sect. 4 of Act X of 1865. take the case out of the general rule. Before the Court con- cludes not to order the husband to secure the wife's costs, it should take into consideration the relative incomes of the husband and wife, " for the means of the wife to defend the action must in some measure depend upon what is necessary for her main- tenance, and the wife of a man with 4,0007. a year is entitled to spend more on her maintenance than the wife of a poorer man." AUTHORITY Allen v. Allen, (1894) P. 134, Davey, L. J. C. A. (6) A wife, who is in receipt of an ample allowance from her husband or from his estate, is not, as a rule, entitled to have her costs pendente lite paid by him. ATJTHOEITY Woodgate y. Taylor, 30 L. J., P. & M. 197, note. (c) If the husband and wife are subject to the provisions of sect. 4 of the Indian Succession Act, 1865, the husband will not be ordered to secure the wife's costs (?). ATJTHOEITIES Proby v. Proby, I. L. B., v Calc. 357. Thomson y. Thomson, I. L. B., xiv Calc. 580. Thomas v. Thomas, I. L. E., 23 Calc. 913. Young y. Young, I. L. B., 23 Calc. 916, note. The reason for this exception is stated by the learned judges who decided Proby v. Proby (Pontifex and Wilson, JJ.) to be that " the principle upon which the Divorce Court in England acts in requiring the husband in a suit for judicial separation to provide for his wife's costs is based upon the absolute right which the law formerly gave the husband upon marriage to the whole of his wife's personal estate and to the income of her real estate, leaving her destitute of all means to conduct her case ; *but this state of the law has been completely altered in India by sect. 4 of the Indian Succession Act, which prevents any person from acquiring or losing rights in respect of property by marriage." But in Broadhead v. Broadhead (5 B. L. B., App. 9), although the husband raised the objection that he and his wife were subject to sect. 4 of the Indian Succession Act, Phear, J. made the usual order that the husband should deposit a sum sufficient to secure the wife's costs, she being the respondent in the suit and having no separate property of her own. And in Young v. Young, ubi supra, Pigot, J. , while holding that he was bound by Proby v. Proby, remarked that ' ' were the matter not concluded by authority, I should give effect to another con- sideration not referred to, that, 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 I should have * Cf. Cotton, L.J. (Otway v. Otivay, 13 P. D. at p. 156) : " If a case comes before us where a married woman has been married after the Act of 1882, it will be a very serious question for consideration how far we ought to follow the old rule, or what decision we ought to give." COSTS. 365 thought that consideration might fairly be used to influence the App. (F). Court in determining whether in cases such as these the wife Wife's costs might not be entitled to obtain the necessary costs from her pendente lite, husband apart from any question of right to her property." Nor has the decision in Proby v. Proby commended itself to the Madras High Court (Natall v. Natall, I. L. E., ix Mad. 12), or to the Bombay High Court (May hew v. May hew, I. L. E., xix Bomb. 293). In the last-mentioned case the husband and wife were subject to sect. 4 of the Indian Succession Act, but Farren, J., refused on that ground alone to depart from the general rule. " It does not appear to me," observed the learned judge, " that those provisions affect the rule as to costs which ought to be applied to the case. The rule has always been that an order as to costs pending the hearing ought not to be made against the husband if the wife is possessed of means (technically styled separate property) sufficient to enable her to pay her own costs in the first instance, the reason for the continuance of the rule, whatever may have been its origin, being that ' it is not considered just either that a wife should be left without the means of putting her case fairly before the Court,* or that a practitioner should run the risk of losing the proper remunera- tion for his labours if he take up a case which he honestly believes to be genuine, but which may, after all, turn out to be unfounded' (Browne and Powles on Divorce, oth ed., p. 342). It is a rule of public policy. . . . Too much stress seems to me to have been placed on the origin of the rule in Proby v. Proby, and too little upon the real reason for its continuance." In support of his views the learned judge referred to the recent case of Allen v. Allen, (1894) P. 134, where it was held by the Court of Appeal in England that " the relative incomes of hus- band and wife may, under Eule 1 58, be taken into account by the judge when exercising his discretion as to whether he will allow the wife her costs already incurred pendente lite, and he is not bound to refuse the application because the wife has separate property the amount of which is much more than sufficient for the payment of her costs." (d} The wife's costs when taxed de die in diem are generally (d) Sum de- payable to the wife or her attorney out of the fund in Court; posited will but if the Court has reason to suspect that the suit has been n t be paid to instituted mala fide, it will order the sum deposited to be wife if her suit retained in the registry to abide the event of the hearing. AUTHORITY Rogers v. Rogers, 4 S. & T. 82; 34 L. J., P. & M. 87. * As to this see Taylor v. Hailstone (52 L. J., Q. B. 101), where it was held that the costs of a solicitor employed by a married woman to institute proceedings on her behalf against her husband, to obtain a judicial separation, can only be recovered against the husband when the necessity for such proceedings has been made out in point of fact, and that the mere fact that such solicitor had reasonable grounds for believing, upon information obtained, that proceedings ought to be taken, is not sufficient to render the husband liable for costs incurred in obtaining such information, unless it appears to the Court that there was any necessity for such proceedings. 366 APPENDIX (F). App. (F). (e) In a suit for nullity of marriage instituted by the father of Wife's fonts a niinr husland, in such father's own interest, the minor pendeute lite. an d his de facto wife being made co-defendants, the wife's co*ts will not be taxed either against the petitioner or the (e) Suit for minor husband, unless the circumstances of the case appear nullity in- to the Court to warrant the usual order being made against stituted by tfi e husband, that is, unless her costs have been made neces- husband 8 sary fry n ,. r husband's conduct. parent. AUTHORITY Wells v. Cottam f. c. Wells, 3 S. & T. 593; 34 L. J., P. & M. 12. But under the Indian Divorce Act it is not (apparently) open to the parent of either party to a marriage to sue for a decree of nullity of such marriage otherwise than in the interests of the husband or wife (see note to sect. 18). Suitbyluna- Suit by lunatic husband's committee. "Where the husband is a tii- husband's lunatic, and a suit is brought on his behalf by his committee, or committee. other person entitled to his custody, such committee or other person must give the usual security for the wife's costs. AUTHORITY Smith v. Morris, 3 Ad. 67. Suit by next friend of mi- nor husband. Failure to comply with order to give security for wife's costs. (a) Husband petitioner. Suit by next friend of minor husband. When a minor husband sues by his next friend, the latter must file an undertaking in writing to be answerable for the costs of the proceeding (sect. 49, antf), and must also either deposit, or give security for, a sum sufficient to meet the wife's costs of the hearing. AUTHORITY Beavan v. Baivart, 2 S. & T. 652 ; 31 L. J., P. & M. 166. (a) The general rule is that where the husband is the peti- tioner, and has failed to comply with an order to deposit or give security for a sum sufficient to cover his wife's costs, all pro- ceedings in the suit will be stayed on the application of the wife until such sum is deposited or secured ; but the Court will not grant an attachment against the petitioner. AUTHORITIES Keats v. Keats and Montezuma, 28 L. J., P. & M. 138, note. Keane v. Keane, L. E., 3 P. 52 ; 42 L. J., P. & M. 12. Hepworth v. Hcpworth, 2 S. & T. 414; 31 L. J., P. & M. 18. Clarice v. Clarke, (1891) P. 278; 60 L. J., P. & M. 97. Nor does the subsequent bankruptcy of the husband cancel or vacate an order to secure such costs, and, the bankmptcy notwithstanding, the Court will refuse to allow the husband's petition to be heard until the wife has been put into a position to defend herself. AUTHORITY Morris v. Morris, 15 L. T. 545. But, if it be proved to the satisfaction of the Court that the petitioner is a man of next to no means, and is unable to pay into Court the sum certified by the registrar as the wife's COSTS. 367 probable costs of suit, the Court will refuse to stay the proceed- App. (F). ings upon the application of the respondent. Wife's costs AUTHORITIES Walker v. Walker, 1 Curt. 560. pendente lite. Thomson v. Thomson, I. L. E., xiv Calc. 580. Nor is the fact that the petitioner has failed to pay the costs of a previous unsuccessful suit by him for dissolution of marriage any ground for staying proceedings in a subsequent suit for dis- solution by reason of fresh adultery. AUTHORITY Yeatman v. Yeatman and Rummell, 39 L. J., P. & M. 37. (b) Where the husband is the respondent and has failed to (b) Husband comply with an order to deposit, or give security for, a sum respondent, sufficient to cover his wife's costs, the order can be enforced against him in the manner provided by the Code of Civil Pro- cedure for the execution of a money decree. AUTHORITY Civil Procedure Code, 1882, s. 220. A respondent who refuses or fails to comply with such an order is guilty of contempt of Court, and is liable to attachment for such disobedience, such default not being " default in pay- ment of a sum of money" within the meaning of sect. 4 of the Debtors Act, 1869 (32 & 33 Viet. c. 62). AUTHORITY Bates v. Bates, 14 P. D. 17 C. A. The inability of the respondent, through poverty, to pay or give security for his wife's costs is not per se a ground for refus- ing to make such an order against him, but the Court will, probably, decline to grant an attachment against him if he fails to comply with the order. AUTHORITIES Ward v. Ward, 1 S. & T. 484; 29 L. J., P. & M. 17. Contra Hepworth v. Hepworth, 2 S. & T. 414; 31 L. J., P. & M. 18. Dismissal or withdrawal of suit before hearing. A petition by Dismissal or a wife, who resumes cohabitation with the respondent before withdrawal of the hearing, will be dismissed on the latter's application, but suit before only on condition that he pays all taxed costs ; and, in such a hearing, case, the respondent's application will be ordered to stand over until the wife's attorney has had an opportunity of taxing his costs and enforcing them against the respondent. AUTHORITIES Cooper v. (-ooper, 3 S. & T. 392 ; 33 L. J., P. &M. 71. Dixon v. Dixon, L. E., 2 P. 253; 40 L. J., P. & M. 38. P. \. P.,9 B. L. E., App. 6. Nor will a husband be allowed to withdraw his petition before the hearing except upon payment of his wife's taxed costs. AUTHORITY Pearce v. Pearce, 30 L. J., P. & M. 182. Where notice was given by the husband's solicitor to the solicitors of the wife and co-respondent that the petitioner had abandoned the petition, the Court, on motion by the respondent 368 APPENDIX (F). App. (F). Wife' s costs pendente lite. Interlocutory motions, ap- plications, &c. Costs incurred previous to institution of suit. and co-respondent, supported by an affidavit of service of motion on the petitioner's solicitor, dismissed the petition, and con- demned the petitioner in costs. AUTHOKITY Symons v. Symons and Pike, 2 S. & T. 435 ; 31 L. J., P. & M. 84. If the Court grants an application by the husband alone, or by the husband and wife jointly, for the issue of a commission to examine witnesses, the husband will be ordered to advance the wife a sum to enable her to defray the expenses of the com- mission. AUTHORITIES Hood v. Hood, 2 S. & T. 112, note. Baity y. Baity and De la Eocca, 2 S. & T. 112 ; 30 L. J., P. & M. 47. 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 for further particulars of the charges in her petition for dissolution of marriage ; (iv) of appearing on a motion if such appearance is unnecessary, though she may have received notice to appear from the other side. AUTHORITIES Harding v. Harding and Lance, 2 S. & T. 549; 31 L. J., P. & M. 76. Hepivorth v. Hepworth, 30 L. J., P. & M. 253. Frebout v. Frebout and Penney, 30 L. J., P. & M. 214. An order having been made, during the progress of a suit by the wife for judicial separation, that her costs should be taxed against the husband, the registrar disallowed all charges incurred previously to the commencement of the suit, as also charges by her solicitor for attendance upon her father, which was alleged to have been rendered necessary by reason of her illness. The Court held that this taxation was right, inasmuch as charges incurred previous to the commencement of the proceedings and for the attendance of a proctor, except on his client personally, could not be allowed. AUTHORITY Dickens v. Dickens, 2 S. & T. 103; 28 L. J., P. & M. 94. Costs of wife after decree. Costs payable to wife after decree : " The judgment shall direct by whom the costs of each party are to be paid, whether by himself or by any other party to the suit, and whether in whole or in what part or proportion " (Civil Procedure Code, 1882, s. 219). ' ' The Court shall have full power to give and apportion costs of every application and suit in any manner it thinks fit, and the fact that the Court has no jurisdiction to try the case is no bar to the exercise of such power : Provided that if the Court COSTS. 369 directs that the costs of any application or suit shall not follow -App. (F). the event, the Court shall state its reasons in writing. Every Costs of wife order relating to costs made under this code and not forming after decree. part of a decree may be executed as if it were a decree for money " (Civil Procedure Code, 1882, s. 220). In every case the decree must direct by whom and in what proportion the costs should be paid ; an omission to do so is not a mere clerical error, and must be rectified by review. AUTHORITY Ram Sahoy v. Rookhoo, 15 W. E. 414. "Where the wife is the petitioner and is successful in her suit, Where wife her husband will, as a matter of course, be ordered to pay her succeeds in costs. her suit. AUTHORITIES Peacock v. Peacock, 27 L. J., P. & M. 71. Dixon v. Dixon, 28 L. J., P. & M. 96. Kaye v. Kaye, 4 S. & T. 239. Nor does the fact that she sued in forma pauperis disentitle her to her costs against her husband. AUTHORITY Afford v. Afford, 2 S. & T. 387 ; 30 L. J., P. & M. 174. Where the wife is the respondent, but has established a good "Wife estab- defence in law to her husband's petition, she will be entitled to lishing good have her costs taxed against him, even though she may have defence to omitted to take the precaution of having a sum of money husband's deposited in Court, or security given, to meet the costs of the Sl " tt hearing. AUTHORITIES Ellyatt v. Ellyatt and Hulse, 3 S. & T. 504 ; 33 L. J., P. & M. 137. Burroughs v. Burroughs, 31 L. J., P. & M. 124. A wife, who is respondent in a suit, will be entitled to all costs, though they may exceed the amount deposited in Court, if her husband's suit is dismissed on account of his own marital misconduct, even though her own adultery has been established. AUTHORITY Starkey v. Starkey and Irwin, 30 L. J., P. & M. 118. The costs of the wife, when payable by the husband, are not Costs not limited to the amount paid into Court, or secured by the husband limited to for that purpose. amount paid AUTHORITIES Chetivynd v. Chetwynd, 4 S. & T. 108 ; 34 into registry. L. J., P. & M. 65. Starkey v. Starkey and Irwin, 30 L. J., P. & M. 118. Robertson v. Robertson and Favagrossa, 6 P. D. 119; 51 L. J., P. & M. 5 C. A. Otway v. Otway, 13 P. D. 141 ; 57 L. J., P. & M. 81 C. A. The amount deposited in Court by the husband is primarily Amount in liable to the payment of his wife's taxed costs, although the co- deposit pri- respondent may have been condemned in all the costs, including marily liable. R. B B 370 APPENDIX (F). App. (F). those of the wife, and the husband may be unable to obtain them Coxts of wife from nim - after decree AUTHORITY Evans v. Evans and Robinson, 1 S. & T. 328 ; 28 L. J., P. & M. 136. Application Application for balance of the wife's costs, over and above the for balance of amount deposited in the registry, should be made on summons, wife's costs. an( j no t O n motion. AUTHORITY Cooke v. Cooke and Allen, 3 S. & T. 603 ; 34 L. J., P. & M. 15. Wife partly Where the wife is partly successful in her suit, but fails to successful in prove all the charges pleaded by her against her husband, the her suit, registrar in taxing her costs should satisfy himself whether her attorney had, or had not, reasonable grounds for bringing the several matters pleaded before the Court. If he had, he will ba allowed all proper costs of attempting to prove such matters, though the decision of the Court on some of them may be against the wife. AUTHORITY Allen v. Allen and D'Arci/, 2 S. & T. 107 ; 30 L. J., P. &M. 9. or in estab- If the wife succeeds in establishing her counter-charges against listing her the petitioner, she will be entitled to all her costs of proving counter- such counter -charges, charges. AUTHORITIES Chaldecott v. Ghaldecott and Cartwright, 29 L. T. 699. Otivayv. Otway, 13 P. D. 141; 57 L. J., P. & M. 81 C. A. Wife success- A wife who has obtained a decree nisi with costs is entitled to f ul in suit : enforce payment of those costs from the husband notwithstand- subsequent ing the intervention of the Queen's Proctor before the decree is intervention. made absolute. AUTHORITY Gladstone v. Gladstone, L. E., 3 P. 260 ; 44 L. J., P. & M. 46. Even if the wife is proved guilty of adultery on such inter- vention she will be entitled to the costs directed to be paid to her by the decree nisi. AUTHORITY Whitmore v. WMtmore, L. E., IP. 96; 35 L. J., P. & M. 52. In a recent case, however, Butt, J., held that where a decree nisi is rescinded, after intervention by the Queen's Proctor, on the ground that it was obtained by collusion to which the wife's solicitors were parties, that part of the decree which ordered the husband to pay the wife's costs was rescinded with it, and that, consequently, the wife was not entitled to an order that certain money paid into the registry by her husband should be paid out to her or her solicitors. AUTHORITY * Butler v. Butler, 15 P. D. 32 ; 59 L. J., P. & M. 30. * In an earlier stage of this case, Butt, J. . held that, when the Queen's Proctor had intervened and charged the wife with adultery and collusion, the wife was not entitled to have the money in the registry paid out until the decree nisi had been made absolute (Butler v. Butler, 14 P. D. 160 ; 58 L. J., P. & M. 71). COSTS. 371 A wife is not entitled to security from her husband for her App. (F). costs incidental to an intervention of the Queen's Proctor. Costs of wife AUTHORITIES Gladstone v. Gladstone, L. E., 3 P. 260 ; 44 after decree L. J., P. & M. 46. Butler v. Sutler, 15 P. D. 32 ; 59 L. J., P. & M. 30. A wife who is possessed of separate property may be ordered Wife unsuc- to pay the costs of an intervention under sect. 16 of the Indian cessful in her Divorce Act. suit or her Eule 159 of the English Divorce Court Rules provides that defence. "when on the hearing or trial of a cause the decision of the Judge Ordinary or the verdict of the jury is against the wife, no costs of the wife of and incidental to such hearing shall be allowed as against the husband, except such as shall be applied for, and ordered to be allowed by the Judge Ordinary, at the time of such hearing or trial." But this rule is not absolutely imperative, and the Court may dispense with it and entertain an application for the wife's costs subsequently to the hearing, provided that there are special cir- cumstances in the wife's favour. AUTHORITY (Jonradi v. Oonradi and Flashman, L. E., 1 P. 63; 35 L. J., P. & M. 49. Sects. 219 and 220 of the Civil Procedure Code, 1882, provide that (i) the judgment must direct by whom the costs of each part}' are to be paid, and whether in whole or in part, and (ii) if the Court directs that costs of an application or suit shall not follow the event, the Court shall state its reasons in writing. It has been held that the omission to state by whom the costs are to be paid, and whether in whole or in part, is not a mere clerical error, and can be rectified only upon a review of judg- ment. AUTHORITY Earn Sahoy v. Eookhoo, 15 "W. E. 414. As a general rule, the husband will be ordered to pay the wife's General rule. costs, even though she has either failed in a suit instituted by her against him, or has failed to prove her counter-charges, or has been proved guilty of the charges preferred against her by her husband. And the husband's liability extends not merely to the estimated costs for which he has already given security, but to all costs actually incurred by the wife. AUTHORITIES Floiver v. Flowtr, L. E., 3 P. 132; 42 L. J., P. & M. 45. Jones v. Jones, L. E., 2 P. 333; 41 L. J., P. & M. 21, 53. Robertson v. Robertson and Favagrossa, 6 P. D. 119; 51 L. J., P. &M. 5. Otivay v. Otway, 13 P. D. 141. Hall v. Hall, (1891) P. 302; 60 L. J., P. & M. 73. T. v. D.f. c. T., L. E., 1 P. 127. The reasons given for this rule are as follows : "If the ques- Reasons for tion of costs were a question solely between husband and rule. wife, it would be reasonable that a husband who had successfully B B 2 372 APPENDIX (F). App. (r ). rebated a charge brought against him. by his wife should not Costs of wife be obliged to pay her costs. But unfortunately in the vast after decree. majority of cases the wife has no means of her own. She has to find an attorney to take up her case for her, and if she could not obtain from her husband the means of employing him she would be powerless, and however good a cause she might have for taking proceedings, she would be unable to enforce her rights. Therefore it is necessary to take into consideration the position of the attorney, and provision is made for his payment by enabling the wife to call upon the husband to give security for the costs of the hearing to the amount that may be fixed by the registrar. That course was taken in this case, and the amount of security was fixed at 60?. ; and the wife's attorney undertook the litigation on her behalf, in the anticipation that he would be allowed his costs out of that sum for which security had been given. By not allowing the costs, the Court would be depriving the attorney of that which he looked to, and had a right to look to, as his security in conducting the litigation on the wife's behalf. It is plain that the Court is not absolutely bound to give the wife her costs, but it would only be justified in refusing them in cases when it appeared that the attorney had done something wrong, or that he had instituted proceedings without reasonable ground, that is, when he had the means of seeing, before insti- tuting the suit, that it was one which ought not to be instituted. When such a case arises, I will disallow the wife's costs, and thus cause the punishment to fall on the attorney. ... It would be in the highest degree prejudicial to the interests of the women who are litigants in this Court to cast upon the attorneys whom they consult the dangerous responsibility of coming to a conclusion in doubtful cases as to what is likely to be the finding of the Court upon the facts submitted to them. If I were to disallow these costs I should say in effect that the wife's attorney ought to have come to the conclusion that the charge of cruelty could not be made out. But the attorney ought not, I think, to be compelled to stake his chance of remuneration upon his judgment upon such a question" (Hannen, J., Flowery. Flower, ubi supra}. The rule is also explained by Jessel, M. E. : "Now on prin- ciple 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 pro- vided for the costs of her defence, but also gave her alimony pendente lite so as to provide for her maintenance. Of course the husband may say ' it is a hardship on me to have to pay the costs of my wife's false defence to a charge of adultery, or the costs of a false countercharge against myself of adultery or cruelty.' No doubt it is a hardship, but what would the wife have to say in answer ? Suppose the wife had brought him 10,000?. , or COSTS. 373 20,000?., or 50,OOOZ., would not she have a right to say, 'You App. (F). have taken all my property from me, and am I to be left defence- c os f g O f u-ife less and not able to meet your false charge of adultery ? ' Of after decree. course it is manifest that there must be money provided for the - wife to defend herself, and who is to take up the defence ? Only a solicitor, who must look for payment, not to the wife, who has nothing, but to the husband ; and, therefore, it was quite right to secure him that payment by getting money paid into Court, and finally by payment of the proper costs incurred when the suit was heard. Now, as was observed by the learned judge in the case of Flower v. Flower, it is not the solicitor's fault if the wife is wrong. If he himself conducts the litigation properly, if he fairly investigates the charges and sees a reasonable founda- tion for a defence, he is not to lose his costs and the fair re- muneration for his labour, because he is not successful. No solicitor would engage in the practice of the profession on the terms of not getting paid whenever he was unsuccessful ; and, therefore, unless he himself has been guilty of misconduct, there is no reason for depriving him of his costs. It appears to me, therefore, that where the defence is fairly and reasonably con- ducted, the solicitor ought to be paid in full his costs, that is, his costs properly incurred 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 costs, I think that that reason ought to be sufficient to all right-minded men " (Robertson v. Robertson, uli supra). To the general rule as above laid down, there are two excep- Exceptions to tions. general rule : (a) If the wife's solicitor is guilty of misconduct, " if he / a ) Miscon- either knowingly promotes a case which it must be clear to duct of anybody has no foundation at all, so that he is countenancing solicitor, improper litigation, or if he takes steps which are merely oppressive or obviously unnecessary, or if he crowds a case with absurd evidence, all these are reasons why, if he so misconducts himself, the costs of the wife should be disallowed either in whole or in part" (per Gorell Barnes, J., Ash v. Ash, (1893) P. 222 ; 62 L. J., P. & M. 97 ; Wilson v. Wihon, L. E., 2 P. 435 ; 41 L. J., P. & M. 74; Hough v. Hough, 71 L. T. 703). (b) A wife, who is possessed of sufficient separate property of her (b) "Wife own, is not entitled to burden the husband with the costs of a possessed of suit in which she has been unsuccessful, even though security sufficient for her costs may have been given by him ; and she may be se P ara te ordered to pay the costs of an intervention under sect. 16 of the P r P ert y- Indian Divorce Act. AUTHORITIES Heal v. Heal, L. B., 1 P. 300 ; 36 L. J., P. & M. 62. Sect. 16, Indian Divorce Act. 374 APPENDIX (F). App. (F). In such a case, she may herself be condemned in costs. Costs of wife AUTHORITIES Milne v. Milne and Fowler, L. E., 2 P. 202 ; after decree. 40 L. J., P. & M. 13. Miller v. Miller, L. E., 2 P. 13. Millward v. Millward, 57 L. T. 569. M. f. c. C. v. C., L. E., 2 P. 414 ; 41 L. J., P. & M. 37. The question for the Court is not -whether at the time the wife committed the wrongful act she had or had not any separate estate, but only what is just at the time when it has to arrive at a decision ; if the Court finds that at that time there is property of the guilty wife upon which an order for costs, if made, can operate, the guilty wife, like any other unsuccessful litigant, will be condemned in costs. AUTHORITY Hyde v. Hyde, 59 L. T. 523. But if the separate property of the wife's is small in amount, no order for costs will be made against her which would deprive her of the means of subsistence. AUTHORITY Carstairs v. Carstairs, 33 L. J., P. & M. 170. Notice to And the Court will refuse to entertain an application to con- wife. demn a wife in costs, if she has not appeared to defend the suit, until she has had notice of the application. AUTHORITY Field v. Field, 13 P. D. 23. Taxation of Taxation of wife's costs. The general principles of taxing costs wife's costs. against a husband in matrimonial suits are the same as in other causes. AUTHORITY Suggate v. Suggate, 1 S. & T. 497. In England such costs are taxed as between party and party. AUTHORITY Allen v. Allen and D'Arcy, 2 S. & T. 107; 30 L. J., P. & M. 9. In India they are taxed, as a general rule, as between attorney and client. AUTHORITIES Kelly v. Kelly and Saunders, 3 B. L. E., App. 6. Natall v. Natall, I. L. E., ix Mad. 12. The taxation of costs is in the discretion of the registrar, and the Court will not interfere with his discretion in respect of particular items allowed or disallowed, unless it can be shown that the taxation proceeded on an erroneous principle. AUTHORITY Cooke v. Cooke, 3 S. & T. 374; 33 L. J., P. & M. 79. The proper mode of reviewing a taxation of costs is by moving for a rule to show cause why the taxation should not be reviewed, and not by an act on petition. AUTHORITY Dickens v. Dickens, 28 L. J., P. & M. 94. An unsuccessful suit by the wife for nullity of marriage. COSTS. 375 The number of witnesses whose expenses will be allowed is a question for the discretion of the registrar, who should allow Taxation of the expenses only of such of them as there was reasonable ground costs against for calling ; he should also allow the reasonable expenses of husband. journeys and inquiries taken and instituted for the purpose of procuring information. AUTHORITY Allen v. Allen and D'Arcy, 2 S. & T. 107 ; 30 L. J., P. & M. 9. Term refresher fees, and the fee of counsel for advising on the sufficiency of an answer which is special, and not a mere traverse of the allegations in the wife's petition will ordinarily be allowed. AUTHORITIES Stoate v. Stoate, 30 L. J., P. & M. 214. Hepworth v. Hepworth, 30 L. J., P. & M. 253. A wife, who is respondent in a suit for dissolution of marriage, will not be allowed the costs of a motion for leave to show cause why a decree nisi should not be made absolute, even though she may have received notice from the other side to appear. AUTHORITIES Dickens v. Dickens, 28 L. J., P. & M. 94. Stoate v. Stoate, 2 S. & T. 384. Where, after a decree of judicial separation in favour of the husband, the wife, without making a personal application to the husband, applied for and obtained an order for access to the children, the Court refused to allow the costs of such motion to be taxed against the husband, on the ground that the wife ought to have personally applied to the husband in the matter before applying to the Court, and none the less so because, previously to the decree, the latter had refused such an application_on her part. AUTHORITY Bacon v. Bacon, L. E., 1 P. 167. The solicitor of a wife who had obtained a decree absolute for dissolution of marriage, had his costs in the suit taxed as between party and party in the Divorce Court. He subsequently sued the husband for (i) costs incurred before, but incidental to, the institution of the suit ; (ii) extra costs in the suit as between solicitor and client, which had been disallowed on the taxation ; and (iii) extra costs, as between solicitor and client, of rectify- ing the wife's marriage settlement after decree nisi. The Court of Appeal held that the wife could pledge her husband's credit for, and the solicitor was entitled to recover, such of the above- mentioned costs as had been reasonably incurred. AUTHORITY Ottaway v. Hamilton, 3 C. P. D. 393; 47 L. J., C. P. 725. A wife, who appeals against the decision of the Court dismiss- Wife's costs ing her petition, is entitled to security from her husband for the on appeal. costs of appeal. AUTHORITIES Jones v. Jones, L. E., 2 P. 333; 41 L. J., P. & M. 53. Fowle v. Fowle, I. L. E., iv Calc. 260. No provision should be made for the costs of a wife on her appeal from a decision by which she has been found guilty of 376 APPENDIX (F). App. (F). adultery ; but where she merely defends herself against an Wife's costs appeal on the part of her husband, although her adultery pre- on appeal. vents her from pledging the credit of her husband, or her getting any alimony or allowance from him, yet 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. AUTHOEITY Otway v. Otway, 13 P. D. at pp. 153 156. A wife will not be allowed the costs of an unsuccessful appeal on her part against an interlocutory order. AUTHORITY Thompson v. Thompson and Sturm/alls, 2 S. & T. 402 ; 31 L. J., P. & M. 213. tion. Wife's costs Wife's costs on intervention. It is not the practice of the Court on interven- to order the husband to give security, or pay a sum of money, firm for his wife's costs incidental to an intervention of the Queen's Proctor. AUTHORITIES Gladstone v. Gladstone, L. E., 3 P. 260. Sutler v. Sutler, 15 P. D. 32; 59 L. J., P. & M. 30. Costs against Co-respondent, when condemned in costs : co-respon- dent. " Whenever, in any petition presented by a husband, the alleged adulterer has been made a co-respondent and the adultery has been established, the Court may order the co-respondent to pay the whole or any part of the costs of the proceedings. Provided that the co-respondent shall not be ordered to pay the petitioner's costs : (i) if the respondent was at the time of the adultery living apart from her husband and leading the life of a prostitute, or (ii) if the co-respondent had not at the time of the adultery reason to believe the respondent to be a married woman " (sect. 35, Indian Divorce Act). As a general rule, a co-respondent, whose adultery with a woman whom he has reason to believe to be a married woman has been established, will be condemned in the costs of the suit, even though the petitioner does not expressly pray for costs in his petition. AUTHORITIES Evans v. Evans and Rolinson, 28 L. J., P. &M. 136. Finlay v. Finlay and Radall, 30 L. J., P. & M. 104. Goldsmith v. Goldsmith and others, 31 L. J., P. & M. 163. Nor does the fact that the petitioner claims damages against the co-respondent debar the Court from making such order as to costs as it deems fit. AUTHORITY West v. West and Parker, L. E., 2 P. 196 ; 40 L. J., P. &M. 11. COSTS. 377 Even if the adultery be not established as against the co- App. (F). respondent, he will not be allowed his costs if it is proved that Costs against he acted so imprudently with a woman whom he knew, or had co-respondent. reason to believe, to be a married woman, as to justify a reason- able suspicion in the mind of the petitioner that adultery had Co-respondent been committed ; in such a case he will neither be allowed nor S n ^y of im- condemned in costs. prudence with AUTHORITIES Robinson v. Rolinson and Gamble, 32 L. J., n P. & M. 210. Winscom v. Winscom and Plowden, 33 L. J., P. & M. 45. Carstairs v. Carstairs and Dickens, 33 L. J., P. & M. 170. West v. West and Parker, L. E., 2 P. 196 ; 40 L. J., P. &M. 11. A co-respondent, whose adultery has been established, is not Co-respondent liable to be condemned in the petitioner's costs : n ot liable to pay costs in certain cases. (a] If the respondent was at the time of the adulterii living apart , \ -D j> iir j JTJ- M.-L i*f ^ JM j. (a) Kespon- jrom her husband and leading the lije oj a prostitute. dent livin^- Where the respondent was living, not a life of promiscuous apar t f roi ^ intercourse with all who sought her, but living with separate husband as persons in succession, and professed to be able to attribute her prostitute, respective children to a father, she was held not to be leading a life of prostitution within the meaning of the Indian Divorce Act (Roe v. Roe, 3 B. L. E., App. 9). Moreover, a co-respondent will not be ordered to pay the petitioner's costs in a case where the wife's conduct has been profligate, and that to the knowledge of the petitioner, before the adultery was committed between her and the co-respondent. AUTHORITIES Manton v. Manton and Stevens, 4 S. & T. 159; 34 L. J., P. & M. 121. Ntlson v. Nelson and Howson, L. E., 1 P. 510. Where a wife, who had been a prostitute before marriage, left her husband in Australia against his will, and on arriving in England commenced an adulterous intercourse with the co- respondent, with whom she had had an immoral intercourse before her marriage, and the co-respondent did not discover that she was a married woman until a week after the intimacy had commenced, but thereafter still continued to cohabit with her, because (as he alleged) she received no support from her husband, and would otherwise have been driven back to prostitution, the Court refused to condemn the petitioner in costs, although the petitioner had done his best to prevent his wife leaving Australia and was unable to make her an allowance while living apart from him. AUTHORITY Learmouth v. Learmouth, 59 L. J., P. & M. 14. If a husband allows his wife to lead a life of prostitution, the co-respondent will assuredly not be ordered to pay costs, even though at the time of the adultery the wife was living with her husband. On the contrary, the petitioner's conduct in such a 378 APPENDIX (F). App. (F). case would amount to connivance, and he would probably be C"Sts against ordered to pay the costs of the respondent and co-respondent. co-respondent. AUTHORITY Adams v. Adams and Colter, L. E., 1 P. 333 ; 36 L. J., P. & M. 62. fb) Ignorance (6) If the co-respondent had not at the time of adultery reason of fact that to bflieve the respondent to be a married woman. respondent The petitioner must prove that at the time of the adultery was married, f..he co-respondent knew, or had reason to believe, that the respondent was a married woman. AUTHORITY Boddington v. Boddington and Nossiter, 27 L. J., P. & M. 53. If at the time when his connection with the respondent com- menced, the co-respondent had no reason to believe her to be married, he will not be condemned in costs. AUTHORITIES Priske v. Priske and Gfoldby, 29 L. J., P. & M. 195. Learmonthv. Learmouth,59lj. J.,P. &M. 14. Howe v. Howe, 15 W. E. (Eng.) 498. But even if it is proved that, at the time of the adultery, the co-respondent knew that the respondent was a married woman, it does not necessarily follow that he will be condemned in costs, for the conduct of the petitioner and respondent must be con- sidered as well as that of the co-respondent. AUTHORITY Codrington v. Codrinyton and Anderson, 4 S. &T. 63; 34 L. J., P. & M. 60. The usual course is to grant costs against a co-respondent when his conduct has made the suit necessary ; he will not, therefore, be condemned in costs when his adultery has been connived at, or condoned, by the petitioner. In such a case the petitioner may be ordered to pay the co-respondent's costs. AUTHORITIES Norris v.Norris and Lawson, 4 S. & T. 237; 30 L. J., P. & M. 111. Adams v. Adams and Colter, L. E., 1 P. 233; 36 L. J., P. & M. 62. Bernstein v. Bernstein, (1893) P. 292 ; 63 L. J., P. & M. 3. But mere remissness of conduct on the part of the petitioner towards his wife will not necessarily deprive him of his right to costs against the co-respondent. AUTHORITY Badcock v. Budcoclc, 1 S. & T. 188. A co-respondent, whose adultery with the respondent has been established, is not as a matter of course relieved from the payment of costs of that issue merely because the petition has been dismissed. AUTHORITIES Bremner v. Bremner and Brett, 33 L. J., P. & M. 202. *Long v. Long and Johnson, 15 P. D. 218. * In this case the Court came to the conclusion that the adultery had not been established against the respondent on the ground that COSTS. 379 If, however, the petition is dismissed on the ground of the peti- App. (F). tinner's own gross misconduct, e.g., if he has been proved guilty Costs against of incestuous adultery, or of connivance at his wife's adultery, the co-respondent. petitioner may be ordered to pay the costs of the respondent and co-respondent, although the adultery between the latter has been established. AUTHORITIES Goode v. Goode and Hansom, 30 L. J., P. & M. 105. Seddon v. Seddon and Doyle, 2 S. & T. 640 ; 30 L. J., P. &M. 101. Conradi v. Conradi and Ff ashman, !L. R., 1 P. 63; 35 L. J., P. & M. 49. Costs payable by co-respondent. When a co-respondent has Costs payable been condemned in costs, he will, as a general rule, be ordered by co-respon- to pay all the costs of the proceedings, as well those of the dent, respondent as those of the petitioner. AUTHORITY Evans v. Evans and Robinson, 1 S. & T. 328 ; 28 L. J., P. & M. 136. In such a case the respondent is liable to pay the following costs : (a) Costs of the petitioner and respondent in obtaining an alteration of their marriage settlement ; and of proceed- ings to obtain alimony. AUTHORITY Gill v. Gill and Hogg, 33 L. J., P. & M. 43 ; 10 L. T. 137. (b) Costs of the petitioner and the trustees of a marriage settlement incidental to a petition to vary the settlement. AUTHORITY Smithe v. Smithe, L. E., 1 P. 592. But if part of an application to vary a marriage settlement fails, and the costs of that part can be separated from the other costs, the former ought not to be thrown on the co-respondent. AUTHORITY Stone v. Stone and Brownrigg, 10 L. T. 140. (c) Costs of and incidental to proceedings before the registrar for the apportionment and settlement of damages that may have been awarded. AUTHORITY Irwin v. Irwin, 59 L. J., P. & M. 53. (d) Where the petition is dismissed, but the adultery between. the co-respondent and respondent has been established, and the co-respondent has been condemned in the costs of that issue, he will be liable for all the expenses inci- dental to the filing and prosecution of the petition so far as they relate to such adultery. AUTHORITIES Bremner v. Bremner and Brett, 33 L. J., P. & M. 202. Baker v. Baktr and Grigg, 36 L. J., P. & M. 119. she had been forced to it by the co-respondent, and dismissed the petition, but gave judgment against the co-respondent for damages with costs. 380 APPENDIX (F). App. (F). But the rule that a successful plaintiff suing in forma pauperis Costs against i n an action tried before a judge and jury is entitled upon taxa- co-respondent. tion, as against the defendant, only to costs out of pocket, applies equally to the case of a pauper petitioner in the Divorce Division as against a co-respondent. AUTHORITY Richardson v. Richardson and Plowman, (1895) P. 346; 64 L. J., P. & M. 119 C. A. Costs against co-respon- dent : subsequent intervention. Co-respondent condemned in costs : subsequent intervention. When a co-respondent has been condemned in costs, but the decree nisi is subsequently set aside on the intervention of a third party, who proves misconduct on the part of the petitioner, that part of the decree which condemns the co-respondent in costs will also be reversed. AUTHORITIES Ravenscroft v. Ravenscroft, L. E., 2 P. 376 ; 41 L. J., P. & M. 28. Heckler v. Hechler, 58 L. J., P. & M. 27. But where the decree nisi is rescinded on the ground of the petitioner's adultery subsequent to the date of the decree, that part of the decree which condemns the co-respondent in costs will not be reversed. AUTHORITY Hulse v. Hulse and Tavernor, L. E., 2 P. 357 ; 41 L. J., P. & M. 19. Costs arising from intervention. Sect. 16 of the Indian Divorce Act provides that, when cause is shown why a decree should not be made absolute, "the High Court may order the costs of counsel and witnesses, and otherwise, arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property." Where the Queen's Proctor intervened, after a decree nisi for dissolution of marriage in favour of the husband, and proved collusion and conspiracy between the petitioner and co-respon- dent, who was cited but did not appear, the Court condemned the co-respondent in the costs of the intervention. AUTHORITY Taplen v. Taphn and Cowen, (1891) P. 283; 60 L. J., P. & M. 88. *In an earlier case, however, Butt, J., held that he had no power to condemn a co-respondent, who had not been dismissed * In Taplen v. Taplen, Collins, J., distinguished Blackhall v. Slack- hall on the ground that in that case the co-respondent had not been made a party to the intervention, whereas in the case before him the co-respondent had been cited as a party, though in point of fact he had not appeared. Apparently, however, Butt, J., based his decision on the ground that the co-respondent (whether cited or not) had no right to appear on the intervention, and should not, therefore, be con- demned in the costs arising therefrom. COSTS. 381 from the suit, in the costs of an unsuccessful intervention. -"-PP- (*> "Whether," observed the learned judge, "the proceedings Costs against which ensue on the appearance of the Queen's Proctor are co-respondent. proceedings in the case or not, the co-respondent never does appear in them. I infer from the fact that a co-respondent never has been a party to a Queen's Proctor's intervention that he has not the right to appear. That being so, I think it would be unjust to condemn him in the costs of a proceeding over which he has, and can have, no control " (Blackball v. Blackball and Clarke, 13 P. D. 94; 57 L. J., P. & M. 60). Co-respondent, when allowed costs : Co-respon- dent, when "When the husband's petition is dismissed, or allowed to be allowed costs, withdrawn, as against the co-respondent, on the ground that there is no evidence against him, the petitioner will ordinarily have to pay the co-respondent's costs. AUTHORITY Smith v. Smith and Millett, 33 L. J., P. & M. 11. If, however, the adultery between the co-respondent and respondent has been established, the dismissal of the peti- tioner's suit does not necessarily entitle the co-respondent to costs from the petitioner, unless the suit is dismissed on the ground that the adultery in question had been condoned, or connived at, by the petitioner. AUTHORITIES Forster v. Forster and Berridge, 3 S. & T. 144. Bremner v. Bremner and Brett, 33 L. J., P. & M. 102. Goode v. Goode and Hansom, 30 L. J., P. & M. 105. Seddon v. Seddon and Doyle, 31 L. J., P. & M. 101. Adams v. Adams and Colter, L. R., 1 P. 333; 36 L. J., P. & M. 62. Bernstein v. Bernstein, (1893) P. 292; 63 L. J., P. & M. 3. But if the petition is dismissed on the ground that the peti- tioner has been proved by the co-respondent to have been guilty of incestuous adultery, the co-respondent will be entitled to be paid the costs of that issue, though, if his own adultery with the respondent has also been established, he may be liable for the costs of proving the respondent's adultery with him. AUTHORITY Conradi v. Conradi and Flashman, L. E., 1 P. 63; 35 L. J., P. & M. 49. And even if the petition is dismissed as against the co-respon- dent on the ground that the charge of adultery has not been established against him, he may nevertheless be ordered to pay his own costs if he has acted so imprudently with a woman, whom he had reason to believe to be a married woman, as to 382 APPENDIX (F). App. (F.) raise a reasonable suspicion of adultery in the mind of the Co-respondent, petitioner. when allowed AUTHOBITIES Carsfairs v. Carstairs and Dickenson, 3 S. & costs, T. 538. Robinson v. Robinson and Gamble, 32 L. J., P. & M. 210. Winscom v. Winscom and Plowden, 3 S. & T. 380; 33 L. J., P. & M. 45. Costs of intervenors. Costs of intervenors : When any person intervenes to show cause why a decree nisi made by a High Court should not be made absolute, " the High Court may order the costs of counsel and witnesses and other- wise arising from such cause being shown to be paid by the parties, or such one or more of them as it thinks fit, including a wife if she have separate property " (sect. 16, Indian Divorce Act). And " whenever any application is made under sect. 17, the Court, if it thinks that the applicant had no grounds for inter- vening, may order him to pay the whole or any part of the costs occasioned by the application" (sect. 35, ibid.}. As to whether the Court can condemn a co-respondent to pay the costs of an intervention under sect. 16, see Blackball v. Blackball, and Taplen v. Taplen, ante, p. 380. Reading sect. 16 and sect. 35 of the Indian Divorce Act together, the results would appear to be as follows : (a) If a person shows cause why a decree nisi made by a High Court should not be made absolute, the High Court may order the costs arising from such intervention to be paid either by the petitioner,* or (possibly) by the respondent, or (possibly) by the co-respondent (sect. 16). (b) Possibly, the costs of an intervention under sect. 17 may be ordered to be paid by the petitioner, * or the respondent or the co-respondent (sects. 219, 220, Civil Procedure Code, 1882). (c) A person who intervenes under sect. 17, may be ordered to pay the whole or any part of the costs occasioned by such intervention (sect. 35). (d) It is very doubtful whether a person wJw intervenes under sect. 16 can be ordered to pay any part of the costs occa- sioned by such intervention, for (i) there is no express provision in the Indian Divorce Act conferring upon the Court a power similar to that conferred upon it by the * Inasmuch, however, as neither the respondent nor the co-respon- dent seem to have the right to appear on an intervention, it would hardly be just to condemn them in the costs of a proceeding over which they can have no control (see Blackhall v. lack ha II ; but cf. Taplen v. Taplen, ante, p. 380). A co-respondent is not "a party" to an intervention simply because he was a party in the original suit (Crawford v. Crawford and Dilke, 34 W. B. (Eng.) 677). COSTS. 383 last clause of sect. 35, and the maxim " express io unius App. (F). exclusio alterius " may apply ; (ii) under the penultimate Costs of clause of sect. 7 of the Matrimonial Causes Act, I860 intervenors. (which corresponds with the clause in question of sect. 16 of the Indian Act, but applies only to intervention by the Queen's Proctor), it has been held that the Court has no power to condemn that officer in the costs of an un- successful intervention (Wilson v. Wilson, L. E., 1 P. 180 ; 14 L. T. 674). It was also held (previously to the enactment of the * Matrimonial Causes Act, 1878, s. 2) that a private intervenor could not be condemned in the costs of his intervention (Bowen v. Bowen, 3 S. & T. 530 ; 33 L. J., P. & M. 129 ; Vivian v. Vivian and Wattrford, L. E., 2 P. 100 ; 39 L. J., P. & M. 54). * This section provides that "when the Queen's Proctor or any other person shall intervene or show cause against a decree nisi in any suit or proceeding for divorce or for nullity of marriage, the Court may make such order as to the costs of the Queen's Proctor, or of any other person who shall intervene or show cause as aforesaid, or of all and every party or parties thereto, occasioned by such inter- vention or showing cause as aforesaid, as may seem just ; and the Queen's Proctor, any other person as aforesaid, and such party or parties, shall be entitled to recover such costs in like manner as in other cases," &c. ( 384 ) APPENDIX (G). EULES AND EEGULATIONS OF THE ENGLISH COUET OF DIVOECE MADE TJNDEE THE PROVISIONS OF 20 & 21 Viet. c. 85. 32 & 33 Viet. c. 62. 23 & 24 Viet. c. 144. 38 & 39 Viet. c. 77. RULES AND EEGULATIONS, 26xn DECEMBER, 1865. All rules and regulations heretofore made and issued for Her Majesty's Court for Divorce and Matrimonial Causes shall be revoked on and after the llth day of January, 1866, except so far as concerns any matters or things done in accordance with them prior to the said day. The following rules and regulations shall take effect in Her Majesty's Court for Divorce and Matrimonial Causes on and after the llth day of January, 1866. Petition. 1. Proceedings before the Court for Divorce and Matrimonial Causes shall be commenced by filing a petition. A form of petition is given in the Appendix, No. 1. 2. Every petition shall be accompanied by an affidavit made by the petitioner, verifying the facts of which he or she has personal cognizance, and deposing as to belief in the truth of the other facts alleged in the petition, and such affidavits shall be filed with the petition. See also Eule 175. 3. In cases where the petitioner is seeking a decree of nullity of marriage, or of judicial separation, or of dissolution of marriage, or a decree in a suit of jactitation of marriage, the petitioner's affidavit, filed with his or her petition, shall further state that no collusion or connivance exists between the peti- tioner and the other party to the marriage or alleged marriage. Co-respondents. 4. Upon a husband filing a petition for dissolution of marriage on the ground of adultery the alleged adulterers shall be made co-respondents in the cause, unless the Judge Ordinary shall otherwise direct. RULES ETC. OF THE ENGLISH COURT OF DIVORCE. 385 5. Application for such direction is to be made to the Judge App. (Gr)- Ordinary on motion founded on affidavit. 6. If the names of the alleged adulterers or either of them should be unknown to the petitioner at the time of filing his petition, the same must be supplied as soon as known, and application must be made forthwith to one of the registrars to amend the petition by inserting such name therein, and the registrar to whom the application is made shall give his direc- tions as to such amendment, and such further directions as he may think fit as to service of the amended petition. 7. The term "respondent" where the same is hereinafter used shall include all co-respondents so far as the same is applicable to them. Citation. 8. Every petitioner who files a petition and affidavit shall forthwith extract a citation, under seal of the Court, for service on each respondent in th.8 cause. A form of citation is given in the Appendix, No. 2. 9. Every citation shall be written or printed on parchment, and the party extracting the same, or his or her proctor, soli- citor, or attorney, shall take it, together with a prsecipe, to the registry, and there deposit the prsecipe and get the citation signed and sealed. A form of prsecipe is given in the Appendix, No. 3. The address given in the prsecipe must be within three miles of the General Post Office. Service. 10. Citations are to be served personally when that can be done. 11. Service of a citation shall be effected by personally deliver- ing a true copy of the citation to the party cited, and producing the original, if required. 12. To every person served with a citation shall be delivered, together with the copy of the citation, a certified copy of the petition, under seal of the Court. 113. In cases where personal service cannot be effected, appli- cation may be made by motion to the Judge Ordinary, or to the registrars in his absence, to substitute some other mode of service. 14. After service has been effected, the citation, with a certi- ficate of service indorsed thereon, shall be forthwith returned into and filed in the registry. The form of certificate of service is given in the Appendix, No. 4. 15. When it is ordered that a citation shall be advertised, the newspapers containing the advertisements are to be filed in the registry with the citation. 16. The above rules, so far as they relate to the service of citations, are to apply to the service of all other instruments requiring personal service. 17. Before a petitioner can proceed, after having extracted a citation, an appearance must have been entered by or on behalf of the respondents, or it must be shown by affidavit, R. C C 386 APPENDIX (G). App. (G). filed in the registry, that they have been duly cited, and have 1 not appeared. 18. An affidavit of service of a citation must be substantially in the form given in the Appendix, No. 5, and the citation referred to in the affidavit must be annexed to such affidavit, and marked by the person before whom the same is sworn. Appearance. 19. All appearances to citations are to be entered in the registry in a book provided for that piirpose. The form of entry of appearance is given in the Appendix, No. G. 20. An appearance may be entered at any time before a pro- ceeding has been taken in default, or afterwards, as hereinafter directed, or by leave of the Judge Ordinary, or of the registrars in his absence, to be applied for by motion founded on affidavit. See also Rule 185. 21. Every entry of an appearance shall be accompanied by an address, within three miles of the General Post Office. 22. If a party cited wishes to raise any question as to the jurisdiction of the Court, he or she must enter an appearance under protest, and within eight days file in the registry his or her act on petition in extension of such protest, and on the same day deliver a copy thereof to the petitioner. After the entry of an absolute appearance to the citation a party cited cannot raise any objection as to jurisdiction. See Rules from 56 to 61 as to proceedings on act on peti- tion. Interveners. 23. Application for leave to intervene in any cause must be made to the Judge Ordinary by motion, supported by affidavit. 24. Every party intervening must join in the proceedings at the stage in which he finds them, unless it is otherwise ordered by the Judge Ordinary. Suits in forma Pauperis. 25. Any person desirous of prosecuting a suit in forma pauperis is to lay a case before counsel, and obtain an opinion that he or she has reasonable grounds for proceeding. 26. No person shall be admitted to prosecute a suit in forma pa iiptris without the order of the Judge Ordinary ; and to obtain such order the case laid before counsel and his opinion thereon, with an affidavit of the party or of his or her proctor, solicitor, or attorney, that the said case contains a full and true statement of all the material facts, to the best of his or her knowledge and belief, and an affidavit of the party applying as to his or her income or means of living, and that he or she is not worth 25/., after payment of his or her just debts, save and except his or her wearing apparel, shall be produced at the time such appli- cation is made. See also Rules 208 to 211. 27. Where a husband admitted to sue as a pauper neglects to proceed in a cause, he may be called upon by summons to show RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 387 cause why lie should not pay costs, though he has not been dis- App. (G). paupered, and why all further proceedings should not be stayed - until such costs be paid. Answer. 28. Each respondent who has entered an appearance may within twenty-one days after service of citation on him or her file in the registry an answer to the petition. A form of answer is given in the Appendix, No. 7. See also Eule ISO. 29. Each respondent shall on the day he or she files an answer, deliver a copy thereof to the petitioner, or to his or her proctor, solicitor, or attorney. 30. Every answer which contains matter other than a simple denial of the facts stated in the petition, shall be accompanied by an affidavit made by the respondent, verifying such other or additional matter, so far as he or she has personal cognizance thereof and deposing as to his or 'her belief in the truth of the rest of such other or additional matter, and such affidavit shall be filed with the answer. 31. In cases involving a decree of nullity of marriage or of judicial separation, or of dissolution of marriage, or a decree in a suit of jactitation of marriage, the respondent who is husband or wife of the petitioner shall, in the affidavit filed with the answer, further state that there is not any collusion or conniv- ance between the deponent and the petitioner. Further Pleadings. 32. Within fourteen days from the filing and delivery of the answer the petitioner may file a reply thereto, and the same period shall be allowed for filing any further pleading by way of rejoinder, or any subsequent pleading. 33. A copy of every reply and subsequent pleading shall on the day the same is filed be delivered to the opposite parties, or to their proctor, solicitor, or attorney. General Rules as to Pleadings. 34. Either party desiring to alter or amend any pleading must apply by motion to the Court for permission to do so, unless the alteration or amendment be merely verbal, or in the nature of a clerical error, in which case it may be made by order of the Judge Ordinary, or of one of the registrars in his absence, obtained on summons. See also Eules 181 to 184 and Eule 187. 35. When a petition, answer, or other pleading has been ordered to be altered or amended, the time for filing and deliver- ing a copy of the next pleading shall be reckoned from the time of the order having been complied with. 36. A copy of every pleading showing the alterations and amendments made therein shall be delivered to the opposite parties on the day such alterations and amendments are made in the pleadings filed in the registry ; and the opposite parties, cc2 APPENDIX (G). App. (Gr). if they have already pleaded in answer thereto, shall be at liberty to amend such answer within four days, or such further time as may be allowed for the purpose. 37. If either party in the cause fail to file or deliver a copy of the answer, reply, or other pleading, or to alter or amend the same, or to deliver a copy of any altered or amended pleading, within the time allowed for the purpose, the party to whom, the copy of such answer, reply, or other pleading, or altered or amended pleading, ought to have been delivered, shall not be bound to receive it, and such answer, reply, or other pleading shall not be filed, or be treated or considered as having been filed, or be altered or amended, unless by order of the Judge Ordinary, or of one of the registrars, to be obtained on summons. The expense of obtaining such order shall fall on the party applying for it, unless the Judge Ordinary or registrar shall otherwise direct. 38. Applications for further particulars of matters pleaded are to be made to the Judge Ordinary, or to one of the registrars in his absence, by summons, and not by motion. See also Eules 181 to 184. Service of Pleadings, Sfc. 39. It shall be sufficient to leave all pleadings and other instruments, personal service of which is not expressly required by these rules and regulations, at the respective addresses fur- nished by or on behalf of the several parties to the cause. See also Eule 114. Mode of Trial. 40. When the pleadings on being concluded have raised any questions of fact, the petitioner, within fourteen days from the filing of the last pleading, or at the expiration of that time, on the next day appointed for hearing motions in this Court, or in case the petitioner should fail to do so at such time, either of the respondents on whose behalf such questions have been raised, may apply to the Judge Ordinary by motion to direct the truth of such questions of fact to be tried by a special or common jury. See also Eule 205. Questions of fact for the Jury. 41. Whenever the Judge Ordinary directs the issues of fact in a cause to be tried by a jury, the questions of fact raised by the pleadings are to be briefly stated in writing by the petitioner, and settled by one of the registrars. A form is given in the Appendix, No. 8. 42. Should the petitioner fail to prepare and deposit the ques- tions for settlement in the registry within fourteen days after the Judge Ordinary has directed the mode of trial, either of the respondents on whose behalf such questions have been raised shall be at liberty to do so. 43. After the questions have been settled by the registrar, the RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 389 party who has deposited the same shall deliver a copy thereof as App. (G). settled to each of the other parties to be heard on the trial of the - cause, and either of such parties shall be at liberty to apply to the Judge Ordinary, by summons "within eight days, or at the expiration of that time on the next day appointed for hearing summonses in this Court, to alter or amend the same, and his decision shall be final. Setting doivn the Cause for Trial or Hearing. 44. In cases to be tried by a jury, the petitioner, after the expiration of eight days from the delivery of copies of the ques- tions for the jury to the opposite parties, or from alteration or amendment of the same, in pursuance of the order of the Judge Ordinary, shall file such questions as finally settled in the regis- try, and at the same time set down the cause as ready for trial, and on the same day give notice of his having done so to each party for whom an appearance has been entered. See aho Eule 206. 45. In cases to be heard without a jury, the petitioner shall, after obtaining directions as to the mode of hearing, set the cause down for hearing, and on the same day give notice of his having done so to each party in the cause for whom an appearance has been entered. See also Eules 205 and 206. 46. If the petitioner fail to file the questions for the jury, or to set down the cause for trial or hearing, or to give due notice thereof, for the space of one month, after directions have been given as to the mode in which the cause shall be tried or heard, either of the respondents entitled to be heard at such trial or hearing may file the questions for the jury, and set the cause down for trial or hearing, and shall on the same day give notice of his having done so to the petitioner, and to each of the other parties to the cause for whom an appearance has been entered. 47. A copy of every notice of the cause being set down for trial or hearing shall be filed in the registry, and the cause shall come on in its turn, unless the Judge Ordinary shall other- wise direct. Trial or Hearing. 48. No cause shall be called on for trial or hearing until after the expiration of ten days from the day when the same has been set down for trial or hearing, and notice thereof has been given, save with consent of all parties to the suit. 49. The registrar shall enter in the Court Book the finding of the jury and the decree of the Court, and shall sign the same. 50. Either of the respondents in the cause, after entering an appearance, without filing an answer to the petition in the principal cause, may be heard in respect of any question as to costs, and a respondent, who is husband or wife of the petitioner, may be heard also in respect to any question as to custody of children, but a respondent who may be so heard is not at liberty 390 APPENDIX (G-). App. (Gr). to bring in affidavits touching matters in issue in the principal cause, and no such affidavits can be read or made use of as evidence in the cause. Evidence taken by Affidavit. 51. When the Judge Ordinary has directed that all or any of the facts set forth in the pleadings be proved by affidavits, such affidavits shall be filed in the registry within eight days from the time when such direction was given, unless the Judge Ordi- nary shall otherwise direct. See also Eule 188. 52. Counter-affidavits as to any facts to be proved by affidavit may be filed within eight days from the filing of the affidavits which they are intended to answer. 53. Copies of all such affidavits and counter-affidavits shall on the day the same are filed be delivered to the other parties to be heard on the trial or hearing of the cause, or to their proctors, solicitors, or attorneys. 54. Affidavits in reply to such counter-affidavits cannot bo filed without permission of the Judge Ordinary or of the registrars in his absence. 55. Application for an order for the attendance of a deponent for the purpose of being cross-examined in open Court shall bo made to the Judge Ordinary, on summons. Proceedings by Petition. 56. Any party to a cause who has entered an appearance may apply on summons to the Judge Ordinary, or in his absence to the registrars, to be heard on his petition touching any collateral question which may arise in a suit. 57. The party to whom leave has been given to be heard on his petition shall within eight days file his act on petition in the registry, and on the same day deliver a copy thereof to such parties in the cause as are required to answer thereto. 58. Each party to whom a copy of an act on petition is delivered shall within eight days after receiving the same file his or her answer thereto in the registry, and on the same day deliver a copy thereof to the opposite party, and the same course shall be pursued with respect to the reply, rejoinder, &c., until the act on petition is concluded. 59. A form of act on petition, answer, and conclusion is given in the Appendix, No. 9. 60. Each party to the act on petition shall within eight days from that on which the last statement in answer is filed, file in the registry such affidavits and other proofs as may be necessary in support of their several averments. 61. After the time for filing affidavits and proofs has expired, the party filing the act on petition is to set down the petition for hearing in the same manner as a cause ; and in the event of his failing to do so within a month any party who has filed an answer thereto may set the same down for hearing, and the petition will be heard in its turn with other causes to be heard by the Judge Ordinary without a jury. RULES, ETC. OF THE ENGLISH COUBT OF DIVORCE. 391 New Trial and Hearing. 62. An application to the Judge Ordinary for a new trial of issues of fact tried by a jury, or for a re -hearing of a cause, may be made by motion within fourteen days from the day on which the issues were tried or the cause was heard, if the Judge Ordinary be then sitting to hear motions, if not, on the first day appointed for hearing motions in this Court after the expiration of the fourteen days. Petition for reversal of Decree of Judicial Separation. 63. A petition to the Court for the reversal of a decree of judicial separation must set out the grounds on which the petitioner relies. A form of such petition is given in the Appendix, No. 10. 64. Before such a petition can be filed, an appearance on behalf of the party praying for a reversal of the decree of judicial separation must be entered in the cause in which the decree has been pronounced. 65. A certified copy of such a petition, under seal of the Court, shall be delivered personally to the party in the cause in whose favour the decree has been made, who may within fourteen days file an answer thereto in the registry, and shall on the day on which the answer is filed deliver a copy thereof to the other party in the cause, or to his or her proctor, solicitor, or attorney. 66. All subsequent pleadings and proceedings arising from such petition and answer shall be filed and carried on in the same manner as before directed in respect of an original petition for judicial separation, and answer thereto, so far as such directions are applicable. Demurrer. 67. All demurrers are to be set down for hearing in the same manner as causes, and will come on in their turn with other causes to be heard by the Judge Ordinary without a jury, unless the Judge Ordinary shall direct otherwise. Intervention of the Queen's Proctor. 68. The Queen's Proctor shall, within fourteen days after he has obtained leave to intervene in any cause, enter an appear- ance and plead to the petition ; and on the day he files his plea in the registry shall deliver a copy thereof to the petitioner, or to his proctor, solicitor, or attorney. 69. All subsequent pleadings and proceedings in respect to the Queen's Proctor's intervention in a cause shall be filed and carried on in the same manner as before directed in respect of the pleadings and proceedings of the original parties to the cause. See also Eule 202. 392 APPENDIX (G). Showing Cause against a Decree. 70. Any person wishing to show cause against making absolute a decree nisi for dissolution of a marriage shall enter an appearance in the cause in which such decree nisi has been pronounced. 71. Every such person shall at the time of entering an appearance, or within four days thereafter, file affidavits setting forth the facts upon which he relies. 72. Upon the same day on which such person files his affidavits he shall deliver a copy of the same to the party in the cause in whose favour the decree nisi has been pronounced. 73. The party in the cause in whose favour the decree nisi has been pronounced may, within eight days after delivery of the affidavits, file affidavits in answer, and shall, upon the day such affidavits are filed, deliver a copy thereof to the person showing cause against the decree being made absolute. 74. The person showing cause against the decree nisi being made absolute may within eight days file affidavits in reply, and shall upon the same day deliver copies thereof to the party supporting the decree nisi. 75. No affidavits are to be filed in rejoinder to the affidavits in reply without permission of the Judge Ordinary or of one of the registrars in his absence. 76. The questions raised on such affidavits shall be argued in such manner and at such time as the Judge Ordinary may on application by motion direct ; and if he thinks fit to direct any controverted questions of fact to be tried by a jury, the same shall be settled and tried in the same manner and subject to the same rules as any other issue tried in this Court. Eules 70 to 76 not applicable to the Queen's Proctor. See Eule 202. Appeals to the full Court. 77. An appeal to the full Court from a decision of the Judge Ordinary must be asserted in writing and the instrument of appeal filed in the registry within the time allowed by law for appealing from such decision ; and on the same day on which the appeal is filed, notice thereof, and a copy of the appeal, shall be delivered to each respondent in the appeal, or to his or her proctor, solicitor, or attorney. A form of instrument of appeal is given in the Appendix, No. 11. 78. The appellant within ten days after riling his instrument of appeal, or within such further time as may be allowed by the Judge Ordinary, or by the registrars in his absence, shall file in the registry his case in support of the appeal in triplicate, and on the same day deliver a copy thereof to each respondent in the appeal, or to his proctor, solicitor, or attorney, who, within ten days from the time of such filing and delivery or from such further time as may be allowed for the purpose by the Judge Ordinary, or the registrars in his absence, shall be at liberty to file in the registry a case against the appeal, also in triplicate, RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 393 and the respondent shall on the same day deliver a copy thereof App. (G). to the appellant, or to his proctor, solicitor, or attorney. 79. After the expiration of ten days from the time when the respondent has filed his case, or, if he has filed none, from the time allowed him for the purpose, the appeal shall stand for hearing at the next sittings of the full Court, and will be called on in its turn, unless otherwise directed. Decree absolute. 80. All applications to make absolute a decree nisi for disso- lution of a marriage must be made to the Court by motion. In support of such applications it must be shown by affidavit filed with the case for motion that search has been made in the proper books at the registry up to within two days of the affidavit being filed, and that at such time no person had obtained leave to intervene in the cause, and that no appearance had been entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi being made absolute ; and in case leave to intervene had been obtained, or appearance entered, or affidavits filed on behalf of any such person, it must be shown by affidavit what proceedings, if any, had been taken thereon, but it shall not be necessary to file a copy of the decree nisi. A form of affidavit is given in the Appendix, No. 12. See also Eules 19-i and 207. Alimony. 81. The wife, being the petitioner in a cause, may file her petition for alimony pending suit at any time after the citation has been duly served on the husband, or after order made by the Judge Ordinary to dispense with such service, provided the factum of marriage between the parties is established by affidavit previously filed. 82. The wife, being the respondent in a cause, after having entered an appearance, may also file her petition for alimony pending suit. 83. A form of petition for alimony is given in the Appendix, No. 13. 84. The husband shall, within eight days after the filing and delivery of a petition for alimony, file his answer thereto upon oath. 85. The husband, being respondent in the cause, must enter an appearance before he can file an answer to a petition for alimony. 86. The wife, if not satisfied with the husband's answer, may object to the same as insufficient, and apply to the Judge Ordinary on motion to order him to give a further and fuller answer, or to order his attendance on the hearing of the petition for the purpose of being examined thereon. See also Eule 189. 87. In case the answer of the husband alleges that the wife has property of her own, she may (within eight days) file a reply on oath to that allegation ; but the husband is not at 394 APPENDIX (G-). App. (G). liberty to file a rejoinder to such, reply without permission of T the Judge Ordinary, or of one of the registrars in his absence. 88. A copy of every petition for alimony, answer and reply, must be delivered to the opposite party, or to his or her proctor, solicitor, or attorney, on the day the same is filed. 89. After the husband has filed his answer to the petition for alimony (subject to any order as to costs), or, if no answer is filed, at the expiration of the time allowed for filing an answer, the wife may proceed to examine witnesses in support of her petition, and apply by motion for an allotment of alimony pending suit, notice of the motion, and of the intention to examine witnesses, being given to the husband, or to his proctor, solicitor, or attorney, four days previously to the motion being heard and the witnesses examined, unless the Judge Ordinary shall dispense with such notice. See also Kules 191 and 192. 90. No affidavits can be read or made use of as evidence in support of or in opposition to the averments contained in a petition for alimony, or in an answer to such a petition, or in a reply, except such as may be required by the Judge Ordinary or by one of the registrars. 91. A wife who has obtained a final decree of judicial separa- tion in her favour, and has previously thereto filed her petition for alimony pending suit, on such decree being affirmed on appeal to the full Court, or after the expiration of the time for appealing against the decree, if no appeal be then pending, may apply to the Judge Ordinary by motion for an allotment of per- manent alimony; provided that she shall, eight days at least before making such application, give notice thereof to the hus- band, or to his proctor, solicitor, or attorney. See also Kule 190. 92. A wife may at anytime after alimony has been allotted to her, whether alimony pending suit or permanent alimony, file her petition for an increase of the alimony allotted by reason of the increased faculties of the husband, or the husband may file a petition for a diminution of the alimony allotted by reason of reduced faculties ; and the course of proceeding in such cases shall be the same as required by these rules and regulations in respect of the original petition for alimony, and the allotment thereof, so far as the same are applicable. 93. Permanent alimony shall, unless otherwise ordered, commence and be computed from the date of the final decree of the Judge Ordinary, or of the full Court on appeal, as the case may be. 94. Alimony, pending suit, and also permanent alimony, shall be paid to the wife, or to some person or persons to be nominated in writing by her, and approved of by the Court, as trustee or trustees on her behalf. Maintenance and Settlements. 95. Applications to the Court to exercise the authority given by sects. 32 and 45 of 20 & 21 "Viet. c. 85, and by sect. 5 of the 22 & 23 Yict. c. 61, are to be made in a separate petition, RULES, ETC. OP THE ENGLISH COURT OF DIVORCE. 395 which must, unless by leave of the judge, be filed as soon as by App. (G). the said statutes such applications can be made, or within one ~ month thereafter. 96. In cases of application for maintenance under sect. 32 of the 20 & 21 Viet. c. 85, such petition may be filed as soon as a decree nisi has been pronounced, but not before. 97. A certified copy of such petition, under seal of the Court, shall be personally served on the husband or wife (as the case may be), and on the person or persons who may have any legal or beneficial interest in the property in respect of which the application is made, unless the Judge Ordinary on motion shall direct any other mode of service, or dispense with service of the same on them or either of them. 98. The husband or wife (as the case may be), and the other person or persons (if any) who are served with such petition, within fourteen days after service, may file his, her, or their answer on oath to the said petition, and shall on the same day deliver a copy thereof to the opposite party, or to his proctor, solicitor, or attorney. 99. Any person served with the petition, not being a party to the principal cause, must enter an appearance before he or she can file an answer thereto. 100. Within fourteen days from the filing the answer, the opposite party may file a reply thereto, and the same period shall be allowed for filing any further pleading by way of rejoinder. 101. Such pleadings, when completed, shall in the first instance be referred to one of the registrars, who shall investigate the averments therein contained, in the presence of the parties, their proctors, solicitors, or attorneys, and who for that purpose shall be at liberty to require the production of any documents referred to in such pleadings, or to call for any affidavits, and shall report in writing to the Court the result of his investigation, and any special circumstances to be taken into consideration with reference to the prayer of the petition. See also Eule 204. 102. The report of the registrar shall be filed in the registry by the husband or wife on whose behalf the petition has been filed, who shall give notice thereof to the other parties heard by the registrar ; and either of the parties, within fourteen days after such notice has been given, if the Judge Ordinary be then sitting to hear motions, otherwise on the first dtiy appointed for motions after the expiration of fourteen days, may be heard by the Judge Ordinary on motion in objection to the registrar's report, or may apply on motion for a decree or order to confirm the same, and to carry out the prayer of the petition. 103. The costs of a wife of and arising from the said petition or answer shall not be allowed on taxation of costs against the husband before the final decree in the principal cause, without direction of the Judge Ordinary. Custody of and Access to Children. 104. Before the trial or hearing of a cause a husband or wife 396 APPENDIX (G). App. (G). who are parties to it may apply for an order -with, respect to the ~ custody, maintenance, or education of or for access to children, issue of their marriage, to the Judge Ordinaiy, by motion founded on affidavit. See also Eule 212. Guardians to Minors. 105. A minor above the age of seven years may elect any one or more of his or her next of kin, or next friends, as guardian, for the purpose of proceeding on his or her behalf as petitioner, respondent, or intervener in a cause. The form of an instrument of election is given in the Appendix, No. 14. 106. The necessary instrument of election must be filed in the registry before the guardian elected can be permitted to extract a citation or to enter an appearance on behalf of the minor. 107. When a minor shall elect some person or persons other than his or her next of kin, as guardian for the purposes of a suit, or when an infant (under the age of seven years) becomes a party to a suit, application, founded on affidavit, is to be made to one of the registrars, who will assign a guardian to the minor or infant for such suit. 108. It shall not be necessary for a minor who, as an alleged adulterer, is made a co-respondent in a suit, to elect a guardian or to have a guardian assigned to him for the purpose of con- ducting his defence. Subpoenas. 109. Every subpoena shall be written or printed on parchment, and may include the names of any number of witnesses. The party issuing the same, or his or her proctor, solicitor, or attorney, shall take it, together with a prtecipe. to the registry, and there get it signed and sealed, and there deposit the prcocipe. Forms of Subpoena, Nos. 15 and 17, and Forms of Prsecipe, Nos. 16 and 18, are given in the Appendix. See also Eule 180. Writs of Attachment and other Writs. 110. Applications for writs of attachment, and also for writs of fie ri facias and of sequestration, must be made to the Judge Ordinary by motion in Court. See also Eules 179 and 203. 111. Such writs, when ordered to issue, are to be prepared by the party at whose instance the order has been obtained, and taken to the registry, with an office copy of the order, and, when approved and signed by one of the registrars, shall be sealed with the seal of the Court, and it shall not be necessary for the Judge Ordinary or for other judges of the Court to sign such writs. 112. Any person in custody under a writ of attachment may apply for his or her discharge to the Judge Ordinary if the Court be then sitting ; if not, then to one of the registrars, who for good cause shown shall have power to order such discharge. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 397 App. (0). Notices. 113. All notices required by these rules and regulations, or by the practice of the Court shall be in writing, and signed by the party, or by his or her proctor, solicitor, or attorney. Service of Notices, <$fc. 114. It shall be sufficient to leave all notices and copies of pleadings and other instruments which by these rules and regu- lations are required to be given or delivered to the opposite parties in the cause, or to their proctors, solicitors, or attorneys, and personal service of which is not expressly required at the address furnished as aforesaid by the petitioner and respondent respectively. See also Eule 39. 115. When it is necessary to give notice of any motion to be made to the Court, such notice shall be served on the opposite parties who have entered an appearance four clear days pre- viously to the hearing of such motion, and a copy of the notice so served shall be filed in the registry with the case for motion, but no proof of the service of the notice will be required, unless by direction of the Judge Ordinary. 116. If an order be obtained on motion without due notice to the opposite parties, such order will be rescinded on the applica- tion of the parties upon whom the notice should have been served ; and the expense of and arising from the rescinding of such order shall fall on the party who obtained it, unless the Judge Ordinary shall otherwise direct. 117. When it is necessary to serve personally any order or decree of the Court, the original order or decree, or an office copy thereof, under seal of the Court, must be produced to the party served, and annexed to the affidavit of service marked as an exhibit by the Commissioner or other person before whom the affidavit is sworn. Office Copies, Extracts, Sfc. 118. The registrars of the Principal Registry of the Court of Probate are to have the custody of all pleadings and other docu- ments now or hereafter to be brought in or filed, and of all entries of orders and decrees made in any matter or suit depending in the Court for Divorce and Matrimonial Causes; and all rules and orders, and fees payable in respect of searches for and inspection or copies of and extracts from and attendance with books and documents in the registry of the Court of Pro- bate, shall extend to such pleadings and other documents brought in or filed, and all entries of orders and decrees made in the Court for Divorce and Matrimonial Causes, save that the length of copies and extracts shall in all cases be computed at the rate of seventy-two words per folio. 119. Office copies or extracts furnished from the registry of the Court of Probate will not be collated with the originals from which the same are copied, unless specially required. Every 398 APPENDIX (G). App. (G). copy so required to be examined shall be certified under the hand of one of the principal registrars of the Court of Probate to be an examined copy. 120. The seal of the Court will not be affixed to any copy which is not certified to be an examined copy. Time fixed by these Rules, 121. The Judge Ordinary shall in every case in which a time is fixed by these rules and regulations for the performance of any act, or for any proceeding in default, have power to extend the same to such time and with such qualifications and restric- tions and on such terms as to him may seem fit. 122. To prevent the time limited for the performance of any act, or for any proceeding in default, from expiring before appli- cation can be made to the Judge Ordinary for an extension thereof, any one of the registrars may, upon reasonable cause being shown, extend the time, provided that such time shall in no case be extended beyond the day upon which the Judge Ordinary shall next sit in Chambers. See aho Eules 181 to 184. 123. The time fixed by these rules and regulations for the performance of any act, or for any proceeding in a cause, shall in all cases be exclusive of Sundays, Christmas Day, and Good Friday. Protection Orders. 124. Applications on the part of a wife deserted by her husband for an order to protect her earnings and property, acquired since the commencement of such desertion, shall be made in writing to the Judge Ordinary in Chambers, and sup- ported by affidavit. A form of application is given in the Appendix, No. 19. See aho Eule 197. 125. Applications for the discharge of any order made to protect the earnings and property of a wife are to be made to the Judge Ordinary by motion, and supported by affidavit. Notice of such motion, and copies of any affidavit or other document to be read or used in support thereof, must be per- sonally served on the wife eight clear days before the motion is heard. Bond not required. 126. On a decree of judicial separation being pronounced, it shall not be necessary for either party to enter into a bond conditioned against marrying again. Change of Proctor, Solicitor, or Attorney. 127. A party may obtain an order to change his or her proctor, solicitor, or attorney upon application by summons to the Judge Ordinary, or to the registrars in his absence. See aho Eules 181 to 184. 128. In case the former proctor, solicitor, or attorney neglects to file his bill of costs for taxation at the time required by the RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 399 order served upon him, the party may, with the sanction and App. (G). by order of the Judge Ordinary or of the registrars, proceed in ' the cause by the new proctor, solicitor, or attorney, without previous payment of such costs. Order for the immediate Examination of a Witness. 129. Application for an order for the immediate examination of a witness who is within the jurisdiction of the Court is to be made to the Judge Ordinary, or to the registrars in his absence, by summons, or if on behalf of a petitioner proceeding in default of appearance of the parties cited in the cause without summons before one of the registrars, who will direct the order to issue, or refer the application to the Judge Ordinary, as he may think fit. See also Eules 181 to 184. 130. Such witness shall be examined viva voce, unless other- wise directed, before a person to be agreed upon by the parties in the cause, or to be nominated by the Judge Ordinary or by the registrars to whom the application for the order is made. 131. The parties entitled to cross-examine the witness to be examined under such an order shall have four clear days notice of the time and place appointed for the examination, unless the Judge Ordinary or the registrars to whom the application is made for the order shall direct a shorter notice to be given. Commissions and Requisitions for Examination of Witnesses. 132. Application for a commission or requisition to examine witnesses who are out of the jurisdiction of the Court is to be made by summons, or if on behalf of a petitioner proceeding in default of appearance without summons, before one of the regis- trars, who will order such commission or requisition to issue, or refer the application to the Judge Ordinary, as he may think fit. 133. A commission or requisition for examination of witnesses may be addressed to any person to be nominated and agreed upon by the parties in the cause, and approved of by the regis- trar, or for want of agreement to be nominated by the registrar to whom the application is made. 134. The commission or requisition is to be drawn up and prepared by the party applying for the same, and a copy thereof shall be delivered to the parties entitled to cross-examine the witnesses to be examined thereunder two clear days before such commission or requisition shall issue, under seal of the Court, and they or either of them may apply to one of the registrars by summons to alter or amend the commission or requisition, or to insert any special provision therein, and the registrar shall make an order on such application, or refer the matter to the Judge Ordinary. A form of a commission and requisition is given in the Appendix, No. 20. 135. Any of the parties to the cause may apply to one of the registrars by summons for leave to join in a commission or requisition, and to examine witnesses thereunder ; and the registrar to whom the application is made may direct the 400 APPENDIX (G). App. (G). necessary alterations to be made in the commission or requisi- ~ tion for that purpose, and settle the same, or refer the applica- tion to the Judge Ordinary. 136. After the issuing of a summons to show cause why a party to the cause should not have leave to join in a commission or requisition, such commission or requisition shall not issue under seal without the direction of one of the registrars. 137. In case a husband or wife shall apply for and obtain an order or a commission or requisition for the examination of witnesses, the wife shall be at liberty, without any special order for that purpose, to apply by summons to one of the registrars to ascertain and report to the Court what is a sufficient sum of money to be paid or secured to the wife to cover her expenses in attending at the examination of such witnesses in pursuance of such order, or in virtue of such commission or requisition, and such sum of money shall be paid or secured before such order or such commission or requisition shall issue from the registry, unless the Judge Ordinary or one of the registrars in his absence shall otherwise direct. See also Rule 198. Affidavits. 138. Every affidavit is to be drawn in the first person, and the addition and true place of abode of every deponent is to be inserted therein. 139. In every affidavit made by two or more persons, the names of the several persons making it are to be written in the jurat. 140. No affidavit will be admitted in any matter depending in the Court for Divorce and Matrimonial Causes in which any material part is written on an erasure, or in the jurat of which there is any interlineation or erasure, or in which there is any interlineation the extent of which at the time when the affidavit was sworn is not clearly shown by the initials of the registrar, commissioner, or other authority before whom it was sworn. 141. Where an affidavit is made by any person who is blind, or who, from his or her signature or otherwise, appears to be illiterate, the registrar, commissioner, or other authority before whom such affidavit is made is to state in the jurat that the affidavit was read in the presence of the party making the same, and that such party seemed perfectly to understand the same, and also made his or her mark, or wrote his or her signature thereto, in the presence of the registrar, commissioner, or other authority before whom the affidavit was made. 142. No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is offered, or before his or her proctor, solicitor, or attorney, or before a partner or clerk of his or her proctor, solicitor, or attorney. 143. Proctors, solicitors, and attorneys, and their clerks respectively, if acting for any other proctor, solicitor, or attorney, shall be subject to the rules and regulations in respect of taking affidavits which are applicable to those in whose stead they are acting. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 401 144. No affidavit can be read or used unless the proper stamps App. (G). to denote the fees payable on filing the same are delivered with such affidavit. 145. Where a special time is fixed for filing affidavits, no affidavit filed after that time shall be used unless by leave of the Judge Ordinary. 146. The above rules and regulations in respect to affidavits shall, so far as the same are applicable, be observed in respect to affirmations and declarations to be read or used in the Court for Divorce and Matrimonial Causes. Cases for Motion. 147. Cases for motion are to set forth the style and object of, and the names and descriptions of the parties to, the cause or proceeding before the Court; the proceedings already had in the cause, and the dates of the same ; the prayer of the party on whose behalf the motion is made, and briefly, the circum- stances on which it is founded. 148. If the cases tendered are deficient in any of the above particulars, the same shall not be received in the registry without permission of one of the registrars. 149. On depositing the case in the registry, and giving notice of the motion, the affidavits in support of the motion, and all original documents referred to in such affidavits, or to be referred to by counsel on the hearing of the motion, must be also left in the registry ; or in case such affidavits or documents have been already filed or deposited in the registry, the same must be searched for, looked up, and deposited with the proper clerk, in order to their being sent with the case to the Judge Ordinary. 150. Copies of any affidavit or documents to be read or used in support of a motion are to be delivered to the opposite parties to the suit who are entitled to be heard in opposition thereto. Taxing Bills of Costs. 151. All bills of costs are referred to the registrars of the principal registry of the Court of Probate for taxation, and may be taxed by them, without any special order for that purpose. Such bills are to be filed in the registry. See also Rule 177. 152. Notice of the time appointed for taxation will be for- warded to the party filing the bill, at the address furnished by such party. 153. The party who has obtained an appointment to tax a bill of costs shall give the other party or parties to be heard on the taxation thereof at least one clear day's notice of such appoint- ment, and shall at or before the same time deliver to him or them a copy of the bill to be taxed. 154. When an appointment has been made by a registrar of the Court of Probate for taxing any bill of costs, and any R. D D 402 APPENDIX (Gr). App. (G). parties to be heard on the taxation do not attend at the time appointed, the registrar may nevertheless proceed to tax the bill after the expiration of a quarter of an hour, upon being satisfied by affidavit that the parties not in attendance had due notice of the time appointed. 155. The bill of costs of any proctor, solicitor, or attorney will be taxed on his application as against his client, after sufficient notice given to the person or persons liable for the payment thereof, or on the application of such person or persons, after sufficient notice given to the practitioner. 156. The fees payable on the taxation of any bill of costs shall be paid by the party on whose application the bill is taxed, and shall be allowed as part of such bill ; but if more than one sixth of the amount of any bill of costs taxed as between practitioner and client is disallowed on the taxation thereof, no costs incurred in such taxation shall be allowed as part of such bill. See also Eule 200. 157. If an order for payment of costs is required, the same may be obtained by summons, on the amount of such costs being certified by the registrar. See also Kules 178, 179 and 201. Wife's Costs. As amended 14th July 1875. 158. After directions given as to the mode of hearing or trial of a cause, or in an earlier stage of a cause by order of the Judge Ordinary, or of the registrars, to be obtained on summons, a wife who is petitioner, or has entered an appearance as respon- dent in a cause, may file her bill or bills of costs for taxation as against her husband, and the registrar to whom such bills of costs are referred for taxation shall, when directions as to the mode of hearing or trial have been given, ascertain what is a sufficient sum of money to be paid into the registry, or what is a sufficient security to be given by the husband to cover the costs of the wife of and incidental to the hearing of the cause ; and shall thereupon issue an order upon the husband to pay or secure the said sum within a time to be fixed by the registrar ; provided that in case the husband should by reason of his wife having separate property, or for other reasons, dispute her right to recover any costs pending suit against him, the registrar may suspend the order to pay the wife's taxed costs, or to pay or secure the sum ascertained to be sufficient to cover her costs of and incidental to the hearing of the cause, for such length of time as shall seem to him necessary to enable the husband to obtain the decision of the Court as to his liability. 159. When on the hearing or trial of a cause the decision of the Judge Ordinary or the verdict of the jury is against the wife, no costs of the wife of and incidental to such hearing or trial shall be allowed as against the husband, except such as shall be applied for, and ordered to be allowed by the Judge Ordinary, at the time of such hearing or trial. See also Rule 201. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 403 Summonses. App. (G). 160. A summons may be taken out by any person in any matter or suit depending in the Court for Divorce and Matri- monial Causes, provided there is no rule or practice requiring a different mode of proceeding. 161. The name of the cause or matter, and of the agent taking out the summons, is to be entered in the summons book, and a true copy of the summons is to be served on the party sum- moned one clear day at least before the summons is returnable, and before 7 o'clock p.m. On Saturdays the copy of the summons is to be served before 2 o'clock p.m. 162. On the day and at the hour named in the summons the party taking out the same is to present himself with the original summons at the judge's chambers, or elsewhere appointed for hearing the same. 163. Both parties will be heard by the Judge Ordinary, who will make such order as he may think fit, and a minute of such order will be made by one of the registrars in the summons book. See also Eules 181 to 184. 164. If the party summoned do not appear after the lapse of half an hour from the time named in the summons, the party taking out the summons shall be at liberty to go before the Judge Ordinary, who will thereupon make such order as he may think fit. 165. An attendance on behalf of the party summoned for the space of half an hour, if the party taking out the summons do not during such time appear, will be deemed sufficient, and bar the party taking out the summons from the right to go before the Judge Ordinary on that occasion. 166. If a formal order is desired, the same may be had on the application of either party, and for that purpose the original summons, or the copy served on the party summoned, must be filed in the registry. An order will thereupon be drawn up, and delivered to the person filing such summons or copy. 167. If a summons is brought to the registry, with consent to an order indorsed thereon, signed by the party summoned, or by his proctor, solicitor, or attorney, an order will be drawn up without the necessity of going before the Judge Ordinary ; pro- vided that the order sought is in the opinion of the registrar one which, under the circumstances, would be made by the Judge Ordinary. 168. The same rules and regulations shall, so far as applic- able, be observed in respect to summonses which may be heard and disposed of by the registrars. Payment of Money out of Court. 169. Persons applying for payment of money out of Court are to bring into the registry a notice in writing setting forth the day on which the money applied for was paid into the registry, the minute entered in the Court books on receiving the same, the date and particiilars of the order for payment to the appli- cant. In case the money applied for be in payment of costs, DD2 404. APPENDIX (G). App. (G). the notice must also set forth the date of filing the bill for taxa- ' tion, and of the registrar's certificate. 170. The above notice must be deposited in the registry two clear days at least before the money is paid out, and is, in that interval, to be examined by one of the clerks of the registry with the original entries in the Court books, and the bills of costs referred to in it, and certified by such clerk to be correct. 171. When the Court is not sitting, payment of money out of Court will be made only on such day or days of the week as may be fixed by the registrars, notice whereof will be given in the registry. Registries and Officers. 172. The registry of the Court for Divorce and Matrimonial Causes, and the clerks employed therein, shall be subject to and under the control of the registrars of the Principal Eegistry of the Court of Probate. 173. The record keepers, the sealer, and other officers of the Principal Registry of the Court of Probate, shall discharge the same or similar duties in the Court for Divorce and Matrimonial Causes, and in the registry thereof, as they discharge in the Court of Probate and the Principal Eegistry thereof. Proceedings under " The Legitimacy Declaration Act, 1858." 174. The above rules and regulations so far as the same may be applicable, shall extend to applications and proceedings under " The Legitimacy Declaration Act, 1858." ADDITIONAL RULES 30xH JANUARY, 1869. Restitution of Conjugal Rights. 175. The affidavit filed with the petition, as required by Eule 2, shall further state sufficient facts to satisfy one of the registrars that a written demand for cohabitation and restitution of con- jugal rights has been made by the petitioner upon the party to be cited, and that after a reasonable opportunity for compliance therewith, such cohabitation and restitution of conjugal rights have been withheld. 176. At any time after the commencement of proceedings for restitution of conjugal rights the respondent may apply by summons to the judge, or to the registrars in his absence, for an order to stay the proceedings in the cause by reason that he or she is willing to resume or to return to cohabitation with the petitioner. As to Costs. 177. In all cases in which the Court at the hearing of a cause condemns any party to the suit in costs, the proctor, solicitor, or attorney of the party to whom such costs are to be paid may RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. . 40 forthwith file his bill of costs in the .registry, and obtain an App. (G). appointment for the taxation, provided that such taxation shall ~ not take place before the time allowed for moving for a new trial or re-hearing shall have expired ; or, in case a rule nisi should have been granted, until the rule is disposed of, unless the Judge Ordinary shall, for cause shown, direct a more speedy taxation. 178. Upon the registrar's certificate of costs being signed, he shall at once issue an order of the Court for payment of the amount within seven days. See also Eules from 151 to 158, and 201. 179. This order shall be served on the proctor, solicitor, or attorney of the party liable, [or if it is desired to enforce the order by attachment, on the party himself,] and if the costs be not paid within the seven days a writ of fieri facias or writ of sequestration shall be issued as of course in the registry, upon an affidavit of service of the order and nonpayment. See also Eules 110, 111, and 203. As to Subpoenas. 180. The issuing of fresh subpoenas in each term shall be abolished, and it shall not be necessary to serve more than one subpoena upon any witness. DEBTOES ACT, 1869. ADDITIONAL RULE 15xn FEBRUARY, 1870. 180A. In pursuance of " The Debtors Act, 1869," it is ordered that, on and after this date, the following rules shall be in force for regulating the practice under and carrying into effect the first part of the said " Debtors Act, 1869." 1. All applications to commit to prison under sect. 5 shall, in the first instance, be made by summons before the Judge Ordinary, which shall specify the date and other particulars of the order for nonpayment of which the application is made, together with the amount due, and be indorsed with the name and place of abode or office of business of the proctor or attorney actually suing out the summons, and in case such attorney shall not be an attorney of this Court, then also with the name and place of abode or office of business of the attorney in whose name such summons shall be taken out, and when the attorney actually suing out such summons shall sue out the same as agent for an attorney in the country, the name and place of abode of such attorney in the country shall also be indorsed upon the said summons, and in case no attorney shall be em- ployed to issue the summons then it shall be endorsed with a memorandum expressing that the same has been sued out by the petitioner or respondent or co-respondent in person, as the case may be, mentioning the city, town, or parish, and also the 406 APPENDIX (G-). App. (G). name of the hamlet, street, and number of the house of such petitioner's, respondent's, or co-respondent's residence, if any such there be. 2. The service of the summons, whenever it may be practic- able, shall be personal ; but if it appear to the Judge Ordinary that reasonable efforts have been made to effect personal service, and either that the summons has come to the knowledge of the debtor, or that he wilfully evades service, an order may be made as if personal service had been effected upon such terms as to the Judge Ordinary may seem fit. 3. Proof of the means of the debtor shall, whenever practic- able, be given by affidavit ; but if it appear to the Judge Ordinary either before or at the hearing that a viva voce examination, either of the debtor or of any other person, or the production of any document, is necessary or expedient, an order may be made commanding the attendance of any such person before the Judge Ordinary at a time and place to be therein mentioned for the purpose of being examined on oath touching the matter in question (or and) for the production of any such document, subject to such terms and conditions as to the Judge Ordinary may seem fit. The disobedience to any such order shall be deemed a contempt of Court, and punishable accordingly. 4. The order of committal (which may be in the Form A. in the Appendix, or to the like effect) shall before delivery to the sheriff be indorsed with the particulars required by Eule 1 of these Rules. Concurrent orders may be issued for execution in different counties. The sheriff shall be entitled to the same fees in respect thereof as are now payable upon a ca. sa, 5. Upon payment of the sum or sums mentioned in the order (including the sheriff's fees in like manner as upon a ca. sa.) the debtor shall be entitled to a certificate in the Form B. in the Appendix, or to the like effect, signed by the proctor or attorney in the cause, of the petitioner, respondent, or co-respondent, as the case may be, or signed by the petitioner, respondent, or co- respondent, as the case may be, and attested by an attorney or justice of the peace. 6. The sheriff or other officer named in an order of committal shall within two days after the arrest indorse on the order the true date of such arrest. ADDITIONAL AND AMENDED RULES 23nD FEBRUARY, 1875. 181. All summonses heretofore heard by the registrars of the Principal Registry of the Court of Probate in the absence of the Judge Ordinary shall hereafter be heard before one or more of the registrars at the Principal Registry of that Court during the period appointed for the sittings of the Court at Westminster, as well as in the judge's absence. 182. All rules and regulations in respect to summonses now RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 407 heard before the Judge Ordinary in chambers at Westminster App. (G). shall, so far as the same are applicable, be observed in respect of the summonses heard before one or more of the registrars at the principal registry. See Rules from 160 to 168. 183. The registrar before whom the summons is heard will direct such order to issue as he shall think fit, or refer the matter at once to the Judge Ordinary. 184. Any person heard on the summons objecting to the order so issued under the direction of the registrars may, subject to any order as to costs, apply to the Judge Ordinary on summons to rescind or vary the same. ADDITIONAL RULES. 14xn JULY, 1875. Appearance. 185. Application for leave to enter an appearance after a pro- ceeding has been taken in default heretofore made to the Judge Ordinary on motion in pursuance of Eule 20 shall hereafter be made by summons before one of the registrars. See also Eule 20. Answer. 186. In case the time allowed for entry of appearance to a citation should be more than eight days after service thereof, a respondent who has entered an appearance may, within fourteen days from the expiration of the time allowed for the entry of appearance, file in the registry an answer to the petition. See also Eule 28. General Rule as to Pleadings. 187. Either of the parties before the Court desiring to alter or amend a pleading may apply by summons to one of the registrars for an order for that purpose. See also Eule 34. Evidence taken by Affidavit. 188. In an undefended cause when directions have been given that all or any of the facts set forth in the petition be proved by affidavits, such affidavits may be filed in the registry at any time up to ten clear days before the cause is heard. See also Eule 51. Alimony. 189. Application for an order for a further and fuller answer to a petition for alimony, heretofore made to the Judge Ordinary on motion in pursuance of Eule 86, shall hereafter be made by summons before one of the registrars. See Eule 86. 408 APPENDIX (Gr). App. (G). 190. A wife who lias obtained a final decree of judicial sepa- ration, on Such decree being affirmed on appeal, or after the expiration of the time for appealing against the decree if no appeal be then pending, may apply to the Court by petition for an allotment of permanent alimony, though no alimony shall have been allotted to her pending suit, and the Rules from 84 to 88, both inclusive, of the rules and regulations for this Court, bearing date 26th December, 1865, relating to petitions for alimony pending suit as varied by these and other additional rules and regulations shall, so far as the same are applicable, be observed in respect to the proceedings upon such petitions for permanent alimony. See also Eules 84 to 88, and 91 and 92. 191. All applications for an allotment of alimony pending suit, and for an allotment of permanent alimony heretofore made to the Court by motion in pursuance of Eules 89 and 91, shall hereafter be referred to one of the registrars at the principal registry, who shall investigate the averments in the petition for alimony, answer, and reply, in the presence of the parties, their proctors, solicitors, or attorneys, and who, if he think fit, shall be at liberty to require the attendance of the husband for the purpose of being examined or cross-examined, and to take the oral evidence of witnesses, and to require the production of any documents or to call for affidavits, and shall direct such order to issue as he shall think fit, or refer the application, or any ques- tion arising out of it, to the Judge Ordinary for his decision. See Eules 89 and 91. 192. Any person heard on the reference as to alimony before one of the registrars, objecting to the order issued under his direction, may (subject to any order as to costs) apply to the Judge Ordinary on summons to rescind or vary the same. Dismissal of Petition. 193. When an order has been made for the dismissal of a petition on payment of costs, the cause will not be removed from the list of causes in the Court books without an order of one of the registrars, to obtain which it must be shown to his satisfaction the costs have been paid. Decree Absolute. 194. In case application by motion to make absolute a decree nisi for the dissolution of a marriage should from any cause be deferred beyond six days from the time when the affidavit required by Eule 80 is filed with the case for motion, it must be shown by further affidavit that search has been made in the proper books up to within six clear days of the motion for decree absolute being heard, and that at such time no person had obtained leave to intervene, and that no appearance had been entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi being made absolute ; and in case leave to intervene had been obtained, or appearance entered or affidavits filed on behalf of any such person, it must RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. V- 409 also be shown by such further affidavit what proceedings, if App. (G). any, have been taken thereon. See also Eules 80 and 207. Custody, Maintenance, and Education of Children. 195. Eules from 97 to 102, both inclusive, of the rules and regulations for this Court, bearing date 26th December, 1865, shall, so far as the same are applicable, be observed in respect to applications by petition, after a final decree in a cause for orders and provision with respect to the custody, maintenance, and education of children, the marriage of whose parents was the subject of the decree under the authority given to the Court by 22 & 23 Viet. c. 61, s. 4. See Eules 97 to 102. Persons of Unsound Mind. 196. A committee duly appointed of a person found by in- quisition to be of unsound mind may take out a citation and prosecute a suit on behalf of such person as a petitioner, or enter an appearance, intervene, or proceed with the defence on behalf of such person as a respondent ; but if no committee should have been appointed, application is to be made to one of the registrars, who will assign a guardian to the person of un- sound mind, for the purpose of prosecuting, intervening in, or defending the suit on his or her behalf; provided that if the opposite party is already before the Court when the application for the assignment of a guardian is made he or she shall be served with notice by summons of such application. Protection Orders. 197. In the affidavit in support of an application on the part of a wife deserted by her husband for an order to protect her earnings and property acquired since the commencement of such desertion, the applicant must state whether she has any know- ledge of the residence of her husband, and'if he is known to be residing within the jurisdiction of the Court, he must be served personally with a summons to show cause why such order should not be made. See also Eule 124. Commission and Requisitions for Examination of Witnesses. 198. The registrar to whom a commission or requisition for examination of witnesses is referred for settlement, on applica- tion on behalf of the wife, may proceed at once and without summons to ascertain what is a sufficient sum of money to be paid or secured to her to cover her expenses in attending at the examination of such witnesses, and shall thereupon issue an order upon the husband to pay or secure the said sum within a time to be fixed in such order. See also Eule 137. 410 APPENDIX (G). App. (G). Costs. 199. The bond taken to secure the costs of a wife of and incidental to the hearing of a cause shall be filed in the registry of the Court of Probate, and shall not be delivered out or be sued upon without the order of the Court. 200. If more than one sixth of the amount of any bill of costs taxed as between practitioner and client is disallowed on taxa- tion thereof, the party on whose application the bill is taxed shall be at liberty to deduct the costs incurred by him in the taxation from the amount of the bill as taxed, if so much remains due, otherwise the same shall be paid by the practitioner to the person on whose application the bill is taxed. See also Eule 156. 201. The order for payment of costs of suit in which a respon- dent or co-respondent has been condemned by a decree nisi shall, if applied for before the decree nisi is made absolute, direct the payment thereof into the registry of the Court of Probate, and such costs shall not be paid out of the said registry to the party entitled to receive them under the decree nisi until the decree absolute has been obtained ; but a wife who is unsuccessful in a cause, and who at the hearing of the cause has, in pursuance of Eule 159, obtained an order of the Judge Ordinary that her costs of and incidental to the hearing or trial of the cause shall be allowed against her husband to the extent of the sum paid or secured by him to cover such costs, may nevertheless proceed at once to obtain payment of such costs after allowance thereof on taxation. See also Kules 157, 178, and 179. ADDITIONAL EULES. 17TH APRIL, 1877. Showing Cause against a Decree Nisi. 202. When the Queen's Proctor desires to show cause against making absolute a decree nisi for dissolution or nullity of mar- riage, he shall enter an appearance in the cause in which such decree nisi has been pronounced, and shall within fourteen days after entering appearance file his plea in the registry, setting forth the grounds upon which he desires to show cause as afore- said, and on the day he files his plea in the registry, shall deliver a copy thereof to the person in whose favour such decree has been pronounced, or to his or her solicitor, and all subse- quent pleadings and proceedings in respect to such plea shall be filed and carried on in the same manner as directed by the existing Rules and Regulations Nos. 68 and 69, in regard to the plea of the Queen's Proctor, filed after obtaining leave to inter- vene in a cause, and the existing Rules and Regulations from No. 70 to No. 76, both inclusive, shall no longer be applicable to the Queen's Proctor on his showing cause as aforesaid, save as far as regards any proceedings already commenced in pur- suance of the said Rules and Regulations. See Rules 68 and 69. RULES, ETC. OF THE ENGLISH COUET OF DIVORCE. 411 Writs of Fieri Facias and other Writs. "PP- (") 203. In default of payment of any sum of money at the time appointed by any order of the Court for the payment thereof, a writ of fieri facias or writ of sequestration or writ of elegit shall be issued as of course in the registry upon an affidavit of service of the order and nonpayment. See also Rules 110, 111, and 179. Maintenance and Settlements. 204. The registrar to whom pleadings are referred for investi- gation under Eule 101 shall, if he thinks fit, be at liberty to require the attendance of the husband or wife for the purpose of being examined or cross-examined, and to take the oral evidence of witnesses in the same manner as on a reference for an allotment of alimony. See Eule 101. ADDITIONAL AND AMENDED RULES. JULY, 1880. Mode of Hearing or Trial. 205. It shall not be necessary in any case to apply to the Court by motion for directions as to the mode of hearing or trial of a cause. When the pleadings are concluded the parties to a cause may proceed in all respects as though upon the day of filing the last pleading a special direction had been given by the Court as to the mode of hearing or trial to the effect following : 1st. In cases in which damages are not claimed that the cause be heard by oral evidence before the Court itself, without a jury. 2nd. In cases in which damages are claimed that the cause be tried before the Court with a common jury. And any party to a cause may apply by summons for a direction that the cause may be heard or tried otherwise than is hereby provided. See Rules 40 and 45. 206. Before a cause is set down for hearing or trial the pleadings and proceedings in the cause shall be referred to one of the registrars, who shall certify that the same are correct and in order, and the registrar to whom the same are referred shall cause any irregularity in such pleadings or proceedings to be corrected, or refer any question arising therefrom to the Court for its direction ; any party to the cause objecting to such direction of the registrar may (subject to any order as to costs) apply to the Court on summons to rescind or vary the same. Decree Absolute. 207. Application to make absolute a decree nisi for dissolution or nullity of a marriage need not hereafter be made to the Court by motion as directed by Rules 80 and 194, but it shall be a sufficient compliance with the said rules to file in the registry, 412 APPENDIX (G). App. (G). with the affidavit or affidavits therein required, a notice in writing setting forth that application is made for such decree absolute, which will thereupon be pronounced in open Court at a time appointed for that purpose. See Eules 80 and 194. Suits in Forma Pauperis. 208. Applications for leave to prosecute or defend a suit in forma pauperis may hereafter be made to one of the registrars, who will make such order thereon as he may see fit or refer the application to the Court. 209. The affidavit required by Eule 26, if application is made by a wife to prosecute a suit against her husband in forma pauperis, shall state to the best of her knowledge and belief the amount of income or means of living of her husband. See also Eules 25 and 26. 210. When a husband has been admitted to prosecute a suit against his wife in forma pauperis, the wife may apply for an order that she be at liberty to proceed with her defence in forma pauperis on production of an affidavit that she has no separate property exceeding 25?. in value after payment of her just debts. 211. When a wife has been permitted to prosecute a suit against her husband in forma pauperis, the husband may apply for leave to proceed with his defence in forma pauperis on pro- duction of an affidavit as to his income or means of living, and showing that besides his wearing apparel he is not worth 25?. after payment of his just debts. Access to Children. 212. Application on behalf of a husband or wife, parties to a cause, for access to the children of their marriage may hereafter be made by summons before one of the registrars, who shall direct such order to issue as he thinks fit, subject to appeal to the Court by either party dissatisfied with the order as autho- rised by Eule 184. See also Eules 104 and 184. The Greek Marriages Act, 1884. 213. In pursuance of the provisions of the Act of Parliament 47 & 48 Viet. c. 20, s. 1, whereby it was enacted that any petition to the Probate and Matrimonial Division of Her Majesty's High Court of Justice under the said Act should be accompanied by such affidavit verifying the same as the said Court might from time to time direct : Now, I, the Eight Honourable Sir James Hannen, Knight, the President of the said Division, do hereby direct that the affidavits verifying a petition under the said Act shall be in the form and to the effect required by Eule 2 of the Eules and Eegulations for Her Majesty's Court for Divorce and Matri- monial Causes, bearing date 26th December, 1865. (Signed) JAMES HANNEN. Dated 6th August, 1884. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 413 App. (0). APPENDIX. FORMS which are to be followed as nearly as the circum- stances of each case will allow. No. 1. Petition. In the High. Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) To the Eight Honourable the President of the said Division. The day of , 18 . The petition of A. B., of , showeth, 1. That your petitioner was on the day of , 18 , lawfully married to C. B., then C. D. [spinster or widow] at the parish church of, &c. [Here state where the marriage took place.] 2. That after his said marriage your petitioner lived and cohabited with his said wife at and at , and that your petitioner and his said wife have had issue of their said marriage children ; to wit : [Here state the names and ages of the children issue of the marriage.'] 3. That on the day of , 18 , and on other days between that day and , the said C. B., at in the county of , committed adultery with B. S. : 4. That in and during the months of January, February, and March, 18 , the said R. 8. frequently visited the said C. D. at , and on divers of such occasions com- mitted adultery with the said C. D. Your petitioner therefore humbly prays, That your Lordship will be pleased to decree : [Here set out the relief sought.] And that your petitioner may have such further and other relief in the premises as to your Lordship may seem meet. [Petitioner's Signature.'] 414 APPENDIX (G). ApP " No. 2. Citation. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) VICTORIA, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To C. B., of in the county of WHEREAS A. B., of, &c., claiming to have been lawfully married to has filed petition against in the Divorce Eegistry of our said Court, praying wherein alleges that you have been guilty of adultery [or have been guilty of cruelty towards the said or as the case may le] : Now THIS IS TO COMMAND YOU, that within eight days after service hereof on you, inclusive of the day of such service, you do appear in our said Court then and there to make answer to the said petition, a copy whereof, sealed with the seal of our said Court, is herewith served upon you. AND TAKE NOTICE, that in default of your so doing, our said Court will proceed to hear the said charge [or charges] proved in due course of law, and to pronounce sentence therein, your absence notwith- standing. And take further notice, that for the purpose afore- said you are to attend in person, or by your solicitor, at the Divorce Eegistry of our said Court at Somerset House, Strand, in the county of Middlesex, and there to enter an appearance in a book provided for that purpose, without which you will not be allowed to address the Court, either in person or by counsel, at any stage of the proceedings in the cause. Dated at London the day of 18 , and in the year of our reign. (L.S.) (Signed) X. T., Eegistrar. No. 3. PrcBcipe for Citation. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) Citation for A.B., of , against 0. B., of , to appear in a suit for by reason of (Signed) A. B. in person, or C. D., solicitor, for the said A. B. [Here insert the address required within three miles of the General Post Office.~\ RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 415 No. 4. Certificate of Service. *^' '* This citation was duly served by the undersigned G. H. on the within-named C. B. of at on the day of 18 . (Signed) G. H. No. 5. Affidavit of Service of Citation. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) A. B. against G. B. and E. F. I, C. D. of, &c., make oath and say, That the citation, bearing date the day of 18 issued under seal of this Court against C. B. the respondent [or M. 8. the co-respondent] in this cause, and now here- unto annexed, marked with the letter A, was duly served by me on the said C. B. (or B. 8.) at in the county of, &c., by showing to h the original under seal, and by leaving with h a true copy thereof, on the day of 18 . And I further make oath and say that I did at the same time and place deliver to the said C. B. (or B. S.} personally a certified copy, under seal of this Court, of the petition filed in this cause. Sworn at, &c. on the day ) of 18 . Before me) No. 6. Entry of an Appearance. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) A. B., petitioner, \ The respondent C. B. [or the co-respon- against ) dent R. S.~\ appears in person [or C. D., C. B., respondent, > the solicitor for C. B. the respondent and 1 (or U.S. the co-respondent), appears for E. 8., co-respondent. / the said respondent or co-respondent]. [Here insert the address required within three miles of the General Post Office.'] Entered this day of 18 . 416 APPENDIX (G). App. (G). No. 7. Answer. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) The day of 18 . A. B. v. C. B. The respondent C. B., by G. D. her solicitor [or in person], in answer to the petition filed in this cause, saith, 1. That she denies that she committed adultery with B. S. as set forth in the said petition : 2. Respondent further saith, that on the day of 18 , and on other days between that day and , the said A. B., at in the county of , committed adultery with K. L. [_ln like manner respondent is to state connivance, con- donation, or other matters relied on as a ground for dismissing the petition."} Wherefore this respondent humbly prays, That your Lordship will be pleased to reject the prayer of the said petition, and decree, &c. No. 8. Questions of Fact for the Jury. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) A. B. against C. B. and R. S. Questions for the Jury. 1. Whether C. B., the respondent, committed adultery with R. S., the co-respondent. 2. Whether A. B., the petitioner, has condoned the adultery (if any) committed by C. B., the respondent. 3. Whether A. B., the petitioner, has been guilty of cruelty towards C. B., the respondent. [Here set forth in the same form all the questions at issue betiveen the parties.] 4. What amount of damages should be paid by R. S., the co- respondent, in respect of the adultery (if any) by him committed. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 417 No. 9. Act on Petition. PP> ' '' In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) A. B. against C. B. and B. S. On the day of 18 . A. B., the petitioner [or C. D., the solicitor of A. B. the peti- tioner], alleged that {Hare state briefly the facts and circumstances upon which the petition is founded.^ Wherefore the said A. ., OT C. D., referring to the affidavits and proofs to be by him exhibited in verification of what he so alleged, prayed that [Here set forth the prayer of the petitioner.'] (Signed) A. B. or C.D. Answer. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) A. B. against C. B. and R. S. On the day of 18 . C. B., the respondent [or G. 77., the solicitor of C. B. the respondent], in answer to the allegations in the act on petition, bearing date the day of 18 of A. B., admitted [or denied] that [Here set forth any allegations admitted or denied."] And he alleged that [Here state any facts or circumstances in explanation or in answer. ~\ Wherefore the said C. B., G. 77., referring to the affidavits and proofs to be by her exhibited in verification of what she so alleged, prayed [Here state the prayer of respondent.] (Signed) C. B. or G.H. Conclusion. A. B. against C. B. and R. S. On the day of 18 . A. B., the petitioner [or C. D., the solicitor for A. B. the petitioner], in reply to the allegations of C. B. [or G. 77.] in her answer, bearing date denied the same in great part to be true or relevant. Wherefore he alleged and prayed as before. (Signed) A. B. or C.D. R. E E 418 APPENDIX (Gr). App. (G). No. 10. Petition for Reversal of Decree. In the High. Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) To the Eight Honourable the President of the said Division. The day of 18 . The petition of A. B., of , showeth, 1. That your petitioner was on the day of 18 lawfully married to G. B., then C. D. spinster [or widow], at the parish of, &c. [Here state where the marriage took place."] 2. That on the day of your Lordship, by your final decree, pronounced in a cause then depending in this Court, entitled 0. B. against A. B., decreed as fol- lows ; to wit : [Here set out the decree."] 3. That the aforesaid decree was obtained in the absence of your petitioner, who was then residing at [State facts tending to show that the petitioner did not know of the proceedings ; and further, that had he known of them he might have offered a sufficient defence.] or That there was reasonable ground for your petitioner leaving his said wife, for that his said wife [Here state any legal grounds justifying the petitioner's separa- tion from his wife."] Your petitioner therefore humbly prays, That your Lordship will be pleased to reverse the said decree. No. 11. Appeal. I, A. B., the petitioner [or C. D., the solicitor of A. B., the petitioner], in a suit lately depending in the Probate, Divorce, and Admiralty Division of the High Court of Justice, entitled A. B. against C. D. and B. S., do hereby, in due time and place, complain of and appeal against a certain order or decree made in the said cause by the Eight Honourable the President of the said Division on the day of 18 , whereby, amongst other things, the said President did order and decree [here set forth the whole of the decree, or such part of it as may be appealed against]. (Signed) A. B. or C.D. This instrument of appeal was lodged in the Divorce Eegistry of the Probate, Divorce, and Admiralty Division of the High Court of Justice this day of 188 . To be signed by a clerk in the registry. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 419 No. 12. Affidavit in support of Application for Decree A PP' (**) Absolute. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) A. B. against 0. B. and R. S. I, C. D. of, &c., solicitor for A. B. the petitioner in this cause, make oath and say, that on the day of 18 , I carefully searched the books kept in the divorce registry of this Court for the purpose of entering appearances, from and including the day of 18 , the day of the date of the decree nisi made in this cause, to the day of 18 , and that during such period no appearance has been entered in the said books by Her Majesty's Pro- curator General, or by or on behalf of any other person or persons whomsoever. And I further make oath and say, that I have also carefully searched the books kept in the said registry for entering the minutes of proceedings had in this cause from and including the said day of 18 , to the day of 18 , and that no leave has been obtained by Her Majesty's Procurator General, or by any other person or persons whomsoever, to intervene in this cause, and that no affidavit or affidavits, instruments, or other documents whatsoever, have been filed in this cause by Her Majesty's Procurator General or any other persons whomsoever during such period, or at any other period during the dependence of this cause, in opposition to the said decree nisi being made absolute. Sworn at, &c., on the day ) of 18 . Before me j No. 13. Petition for Alimony. To the Eight Honourable the President of the Probate, Divorce, and Admiralty Division of the High Court of Justice. A. B. against C. B. and E. S. The day of 188 . The petition of C. B., the lawful wife of A. B., showeth, 1. That the said A. B. does now carry on and has for many years past carried on the business of a at , and from such business he derives the net annual income of : 2. That the said A. B. is now or lately was possessed of or entitled to proprietary shares of the Railway Company, amounting in value to , and yielding a clear annual dividend of : EE2 420 APPENDIX (G-). App. (G). 3. That the said A. S. is possessed of certain stock-in-trade in his said business of a of the value of [In same manner state particulars of any other property which the husband may possess.] Your petitioner therefore humbly prays, That your Lordship will be pleased to decree her such sum or sums of money by way of alimony pendente lite [or permanent alimony] as to your Lordship shall seem meet. No. 14. Election of a Guardian. By a petitioner. Whereas a suit is about to be instituted in the Probate, Divorce, and Admiralty Division of our High Court of Justice on behalf of A. B. against C. B. (the wife of the said A. B.) and B. S. And whereas the said A. B. is now a minor of the age of years and upwards, but under the age of twenty-one years, and therefore by law incapable of acting in his own name. Now I the said A. B. do hereby make choice and elect G. H., my natural and lawful father and next of kin, to be my curator or guardian for the purpose of instituting the said suit, and for the purpose of carrying on and prosecuting the same until a final decree shall be given and pronounced therein, or until I shall attain the age of twenty- one years, and I hereby appoint 6'. D., of, &c., my solicitor to file or cause to be filed this my election for me in the divorce registry of the said Division. In witness whereof I have hereunto set my hand and seal this day of in the year 18 . (Signed) A. B. (L.S.) Signed, sealed, and delivered by the within- named A. B. in the presence of One attesting ivitness. By a respondent. Whereas a citation bearing date the day of 18 has issued under seal of the High Court of Justice, Probate, Divorce, and Admiralty Division, at the instance of A. B., claiming to have been lawfully married to C. B., citing the said C. B. to appear in the said Court, and then and there to make answer to a certain petition of the said A. B. filed in the divorce registry of the said Court. And whereas the said C. B. is now a minor of the age of years and upwards, but under the age of twenty-one years, and therefore by law incapable of acting in her own name. Now I the said C. B. do hereby make choice of and elect Q. H., my natural and lawful father and next of kin, to be my curator or guardian for the purpose of entering an appearance fcttLES, ETC. OF THE ENGLISH COURT OF DIVORCE. 42 for me and on my behalf in the said Court, and for the purpose App. (G). of making answer for me to the said petition, and of defending me in the said cause, and to abide for me in judgment until a final decree shall be given and pronounced therein, or until I shall attain the age of twenty-one years, and I hereby appoint, &c. FORMS OF SUBPCENAS IN ADDITIONAL RULES DATED 30TH JANUARY, 1869. No. 15. Subpoena ad testificandum. VICTORIA, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to \_names of all witnesses included in the subpwna to be inserted], greeting. We command you and every of you to be and appear in your proper persons before the Eight Honourable Sir James Hannen, Knight, the President of the Probate, Divorce, and Admiralty Division of our High Court of Justice at West- minster, in our county of Middlesex, on the day of 18 , by half past ten of the clock in the forenoon of the same day, and so from day to day whenever the said Division of our said Court is sitting, until the cause or proceeding is heard, to testify the truth, according to your knowledge, in a certain cause now in our said Court before our said judge depending between A. B., petitioner, and C. ., respondent, and JR. >., co-respondent, on the part of the petitioner, or respondent, or co-respondent [or as the case may be], and on the aforesaid day, between the parties aforesaid to be heard. And this you or any of you shall by no means omit, under the penalty of each of you of 100Z. Witness the Eight Honourable Sir James Hannen, Knight, at our High Court of Justice, the day of 18 in the year of our reign. (Signed) X. Y., registrar. Subpoena issued by solicitor for the N.B. Notice will be given to you of the day on which your attendance will be required. 422 APPENDIX (G-). APP. (G). No. 16. Prcecipefor Subpoena ad testificandum. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) Subpoena for [insert witnesses' names'], to testify between A. B., petitioner, C. B., respondent, and B. S., co-respondent, on the part of the petitioner [or respondent or co-respondent]. (Signed) i ~^^ ! or ( P ' A " P etitioiie / s [^respondent's | D o i ( or co-respondent s] solicitor. No. 17. Subpoena duces tecum. VICTORIA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to [names of all parties included in the subpoena to be inserted], greeting. We command you and every of you to be and appear in your proper persons before the Eight Honourable Sir James Hannen, Knight, President of the Probate, Divorce, and Admiralty Division of our High Court of Justice at West- minster, in our county of Middlesex, on the day of 18 , by eleven of the clock in the forenoon of the same day, and so from day to day whenever the said division of our said Court is sitting until the cause or proceeding is heard, and also that you bring with you, and produce at the time and place aforesaid [here describe shortly the deeds, letters, papers, &c. required to be produced^, then and there to testify and show all and singular those things which you or either of you know, or the said deed or instrument doth import, of and concerning a certain cause or proceeding now in the said Court before our said judge, depending between A. B., petitioner, and C. D., respondent, and R. S., co-respondent, on the part of the petitioner [or the respondent or co-respondent, as the case may be], and on the aforesaid day between the parties aforesaid to be heard. And this you or any of you shall by no means omit under the penalty of each of you of 100/. Witness, The Eight Honourable Sir James Hannen, Knight, President of the Probate, Divorce, and Admiralty Division of our High Court of Justice, the day of 18 , in the year of our reign. (Signed) X. Y., Eegistrar. Subpoena issued by solicitor for the N.B. Notice will be given to you of the day on which your attendance will be required. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 423 App. (B). No. 18. Prcecipefor Subpoena duces tecum. In the High. Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) Subpoena for to testify and produce, &c. between A. B., petitioner, C. Z>., respondent, and R. S., co-respondent, on the part of the petitioner [or respondent or co-respondent]. ( A. & \ ( Signed) < ' or { R A " P etltloner ' s [or respondent's | n g ( ( or co-respondent's] solicitor. No. 19. Application for a Protection Order. To the Eight Honourable the President of the Probate, Divorce, and Admiralty Division of the High Court of Justice. The application of C. B., of , the lawful wife of A. B., showeth, That on the day of she was lawfully married to A. B. at : That she lived and cohabited with the said A. B. for years at , and also at , and hath had children, issue of her said marriage, of whom are now living with the applicant, and wholly dependent upon her earnings : That on or about the said A. B., without any reasonable cause, deserted the applicant, and hath ever since remained separate and apart from her : That since the desertion of her said husband the applicant hath maintained herself by her own industry, and hath thereby and otherwise acquired certain property [or hath become possessed of certain property], consisting of [here state generally the nature of the property]. Wherefore the said C. B, prays an order for the protection of her earnings and property acquired since the said day of , from the said A, B., and from all creditors and persons claiming under him. (Signed) C. B. 424 APPENDIX (G). App. (G). No. 20. Commission or Requisition for Examination of Witnesses. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) VICTORIA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to [here set forth the name and proper description of the Commis- sioner], greeting. Whereas a certain cause is now depending in the Probate, Divorce, and Admiralty Division of our High Court of Justice between A. ., petitioner, and C. B., respondent, and B. S., co-respondent, wherein the said A. B. has filed his peti- tion praying for a dissolution of his marriage with the said C. B. [or otherwise&s in the prayer of the petition^. And whereas by an order made in the said cause on the day of 18 , on the application of the said A. B. it was ordered that a com- mission \_or requisition] should issue under seal of our said Court for the examination of [here insert name and address of one of the persons to be examined'] and others as witnesses to be produced on the part of the said A. B., the petitioner, in support of his said petition (saving all just exceptions). Now know ye that we do by virtue of this commission [or requisition] to you directed, authorize [or request] you within thirty days after the receipt of this commission [or requisition] at a certain time and place to be by you appointed for that purpose with power of adjourn- ment to such other time and place as to you shall seem con- venient to cause the said witnesses to come before you and to administer to the said witnesses respectively an oath truly to answer such questions as shall be put to them touching the matters set forth in the said petition (a true and authentic copy whereof sealed with the seal of our said Court is hereunto annexed), and such oath being administered we do hereby authorize [or request] and empower you to take the examination of the said witnesses touching the matters set forth in the said petition, and to reduce the said examination or cause the same to be reduced into writing. And that for the purpose aforesaid you do assume to yourself some notary public or other lawful scribe as and for your actuary in that behalf if to you it should seem meet and convenient so to do. And the said examination being so taken and reduced into writing as aforesaid, and subscribed by you, we do require [or request] you forthwith to transmit the said examination, closely sealed up, to the divorce registry of our said Court at Somerset House, Strand, in the county of Middle- sex, together with these presents. And we do hereby give you full power and authority to do all such acts, matters, and things as may be necessary, lawful, and expedient for the due execu- tion of this our commission [or requisition]. Dated at London the day of in the year of our Lord one thousand eight hundred and , and in the year of our reign. (Signed) X. Y., Eegistrar. RULES, ETC. OF THE ENGLISH COURT OF DIVORCE. 425 App. (g). No. 21. Bond for securing Wife's Costs in Amended Rules dated 14M July, 1875. all men by these presents, that we, A. B. of, &c., G. H. of, &c., and K. L. of, &c., are held and firmly bound unto X, T. of , the proctor or solicitor for , of , in the penal sum of pounds of good and lawful money of Great Britain, to be paid to the said X. Y., and for which payment to be well and truly made we bind ourselves and each of us for the whole, our heirs, executors, or administrators, firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord 18 . Whereas a certain cause is now depending in the Probate, Divorce, and Admiralty Division of the High Court of Justice between the said A. B., petitioner of the one part, and the said C. D., respondent, and R. S., co-respondent, of the other part. And whereas by an order made in the said cause, it was ordered that the said A. B., the petitioner [or the said C. D., the respon- dent], should within days from the service thereof pay or cause to be paid into the divorce registry of the said Division the sum of pounds to coyer the costs of the said respon- dent [or petitioner] of and incidental to the hearing of the said cause or file in the said registry a bond under the hand and seal of the said A.B., and of two sufficient sureties in the penal sum of pounds, conditioned for the payment of such costs of the said C. D., as shall be certified to be due and payable by the said A. B., not exceeding the sum of pounds as security for the costs aforesaid. Now the condition of this obligation is such that if the above-bo unden A. B., his heirs, executors, or ad- ministrators, shall well and truly pay or cause to be paid to the above-named X. Y., his heirs, executors, administrators, or assigns, the full sum of of good and lawful money of Great Britain, or the lawful costs of the said C. D., the respon- dent [or petitioner], of and incidental to the hearing and trial of this cause to the extent of pounds, then this obligation is to be void and of none effect, otherwise to remain in full force and virtue. Sealed and delivered by the said A. B., G. H., and K. L., in the presence of One attesting witness. 426 APPENDIX (Gr). App. (g). FORMS A. AND JB. ANNEXED TO ADDITIONAL RULE, 15TH FEBRUARY, 1870. A. Upon hearing, &c. [chrittian and surname of the debtor and party claiming^ I do order, That the said A. B. be for default of payment of the debt hereinafter mentioned committed to prison for the term of weeks from the date of his arrest, including the day of such date, or until he shall pay , being the amount of [here state the particulars of the debt or liability^, and which the said A. B. was on the day of ordered by the Court for Divorce and Matrimonial Causes to pay to the said [or, into the registry of the said Court], together with for costs of this order, and sheriff's fees for the execution thereof, and I order that the sheriff of do take the said A. B. for the purpose aforesaid, if he shall be found within his bailiwick. Dated, &c. B. I certify, That A. B., now in the gaol of upon an order of the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes, at the suit of C. D, for non-payment of a debt of has satisfied the said debt, together with the costs mentioned in the said order. Dated, &c. E. F., of, &c., Proctor or Attorney for the said 0. D. , or C. D., of, &c. Witness to the signature of C. D., 0. H., his Attorney, or 1. K. t Justice of the Peace for . INDEX. ABANDONMENT. See Desertion. ABATEMENT OF SUIT, death of petitioner or respondent, 38, 113. . decree nisi does not terminate suit, 112. reconciliation of parties, 120, 121, 126. ABSENCE, of respondent from India at time of suit, 6, 7. decree of judicial separation obtained during absence of husband or wife may be reversed, 164, 165, 347. of either party at hearing, 352, 353. ABSOLUTE, DECEEE. See Decree Absolute. ABSOLUTE, MAKING DECREE NISI, when decree nisi to be made absolute, 110, 113, 114. who may apply, 114. application to be supported by affidavit, 114. notice to respondent, 115. application to be made within reasonable time, 111, 115. ACCESS TO CHILDREN, pending suit, 273, 274. after decree, 279, 280. " ACCESSORY TO THE ADULTERY." meaning of, 73. adultery brought about by petitioner's agent, 73, 74, 106, 107. ACTION, EIGHT OF, to wife when judicially separated, 161. to wife having protection order, 171 . ADJOURNMENT OF PROCEEDINGS, power of Court to adjourn proceedings, 297 300. ADMISSIONS, decree of dissolution should not be made merely on parties,' 91. of adultery by wife, evidence only against herself, 333, 334. 428 INDEX. ADULTERER, alleged adulterer should be made co-respondent, 68 73. counter- charge of adultery, right of alleged adulterer to intervene, 70, 108. claim of damages against, 187 199. petition to be served upon alleged, 187. when liable for costs of proceedings, 199, 376 381. when allowed costs despite his adultery, 381. ADULTERESS, no provision in act for making alleged adulteress co-respondent, 68, 69. ADULTERY, as ground for dissolution of marriage, 35. incestuous, 19, 23. bigamy with, 19, 23. committed by petitioner, disentitles to relief , 93, 94, 153, 184. condonation of petitioner's, 95, 153. committed by petitioner in ignorance of fact or law, 96, 97. committed by wife under compulsion, 97. isolated act, long since condoned, 98, 99. condonation of. See Condonation. of respondent brought about by petitioner's agent, 106, 107. committed by petitioner after decree nisi, 119. petitioner accessory to, or conniving at respondent's, 73 78. petitioner's, no bar to relief in suits for nullity, 135. as ground for judicial separation, 150. permanent maintenance for wife guilty of, 217, 231. wife guilty of, entitled to alimony pendente lite, 204. party guilty of, will not ordinarily be given custody of children, 277. damages against adulterer in respect of, 187 et seq. wife's power of Court to order settlement of her property, 241246. wife guilty of, not necessarily deprived of her costs, 371 374. evidence of, 332336. pleading, 343345. AFFIDAVITS, on motion to dispense with making adulterer co-respondent, 70, 71. when parties may verify their case by, 91, 92, 291, 294, 295. application to make decree nisi absolute to be supported by, 114. petition by deserted wife for protection order to be supported by, 168. by wife as to husband's means for purposes of alimony pendente lite, 211. AFFINITY, what is, 19, 139. not constituted by mere carnal intercourse without marriage, 139. INDEX. 429 AFFINITY continued. affinity within prohibited degrees is ground for decree of nullity, 128. AGE, no rule as to age of petitioner constituting bar to suit for nullity by reason of impotency, 130. of majority, for purposes of Chap. XI. of Act, 19, 23. for purposes of suing or being sued under Divorce Act, 285. AGENTS, collusion between parties' agents, 88. respondent's adultery brought about by petitioner's agents, 73, 74, 106, 107. ALIMONY, PENDING SUIT, when wife may apply for, 200. in suits for nullity, 201. in suits for dissolution of marriage, 201. in suits for judicial separation, 202. in suits for restitution of conjugal rights, 175, 202. payable from date of service of citation till final decree, 203. pending appeal, 203. pending application for review of judgment, 203, 204. wife to be considered innocent, 204. protection order does not disentitle wife to, 173, 200. wife supported by co-respondent, 205, 206. wife undergoing sentence of imprisonment, 205. plea by husband as to jurisdiction of Court, 32, 205. considerations for Court when allotting, 205. wife having independent means, 206. wife's means derived from co-respondent, 206. when both parties nearly penniless, 206. conduct of wife as affecting her right to, 206. wife receiving allowance from husband, 207. husband's average nett income, 207, 208. husband should state his gross income, 207. all valuable property to be taken into consideration, 208. mortgaged property, 208. deductions claimable by husband, 208, 209. expenses of maintaining children, 209. joint income of husband and wife, 209. increase or reduction of amount allotted, 209, 210. husband excused from paying, instances, 210, 211. husband's income derived from voluntary allowance, 211. practice of Court as regards, 211, 212. affidavit by wife as to husband's income, 211. right of wife to subpoena husband, 212. injunction to restrain husband dissipating his property, 212. arrears of alimony not provable in bankruptcy, 213. wife's promise to forego right to, 213. when co-respondent is Liable for costs of proceedings to obtain, 213. 430 INDEX. ALIMONY, PERMANENT, power of Court to order, 213 241. how payable, 213. order for, when to be made, 215 217. after decree of judicial separation, 217, 218. husband not complying with order to pay after decree of judicial separation, 162. no power to order, after decree for restitution of conjugal rights, 217. order of district judge, when to be made, 218. how secured, 218, 219. charging order on husband's property, 219. injunction to restrain husband from dissipating his pro- perty, 220. various forms of, 220, 221. when alienable by wife and when inalienable, 221 223. bankruptcy of husband, effect of, 223. considerations for Court when allotting, 223 228. power to order gross or annual sum to be secured exercise- able once and for all, 228. instances, 228231. provision for guilty wife, 231 235. allowance under deed of separation, effect of, as regards, 235237. enforcement of order for, 237. husband's income, how computed, 238. husband's income consisting of voluntary allowance, 238, 239. execution of proper instrument, 239. dum casta et sola clause, 239, 240. monthly or weekly payments, 240. power of Court to vary order for such payments, 240. such allowance is inalienable by wife, 240. Court may direct payment to be made to wife or her trustee, 240, 241. "ALLEGED ADULTERER." See Adulterer. ALLOWANCE, wife in receipt of allowance from husband, alimony pending suit, 207. effect of, as regards permanent alimony, 235 237. making wife an allowance is no compliance with decree for restitution of conjugal rights, 176. making wife an allowance is no answer to charge of deser- tion, 58, 357. AMENDMENT OF PLEADINGS, of petition, 350 352. of answer, 355. service of amended petition, 348. " ANNUAL OR GROSS SUM," power of Court to order husband to secure to wife, 213. how secured, 218, 219. is alienable by wife in certain cases only, 221, 222, 223. INDEX. 431 ANSWER, generally, 354358. when to be filed, 354. effect of not filing, 354. frame of, 354, 355. must be duly verified, 355. amendment of, 355. what may be pleaded in answer, 355. evidence not to be pleaded, 356. nor ante-nuptial incontinence, 356. nor impediment to marital intercourse supervening after marriage, 356. desertion on part of petitioner, 356. covenant not to sue when pleadable in bar, 356, 357. misconduct of petitioner not amounting to matrimonial offence, 357. answer to charge of desertion, 357. to suit for restitution of conjugal rights, 357. to charge of cruelty, 357. to suit for nullity of marriage, 358. counter- charges in, 358. doubt as to legal effect of plea in, 358. ANTE-NUPTIAL INCONTINENCE is not pleadable, 39, 345, 356. APOSTACY OF HUSBAND, gives jurisdiction to Court to entertain suit for dissolution, 2, 15, 16. is not per se sufficient ground for dissolving marriage, 15, 35, 39. APPEAL, from orders and decrees, 300 304. no appeal in certain cases, 300, 301, 303. Court fee on memorandum of, 301. from decrees of district judges in Oudh, 301, 302. co-respondent cannot oppose appeal by respondent, 302. power of High Court to deal with decree of district judge, 302. evidence not in existence at date of decree appealed from, 302, 303. limitation, 303. no appeal merely as to costs, to her Majesty in Council, 303, 304. when wife is entitled to security for costs of appeal, 375, 376. alimony pending appeal, 203. APPEARANCE OF PARTIES, regulated by Code of Civil Procedure, 352. absolute appearance admits jurisdiction, 4. failure of respondent to appear, 352, 353. of petitioner, 353. decree passed in alsentem, 6, 7. 432 INDEX. APPOINTMENT, POWER OF, when Court will vary or deprive guilty party of power, 257, 258. ARREARS OF ALIMONY, not provable in husband's bankruptcy, 213. promise by wife to release, 213. decree nisi will not be made absolute in favour of husband when there are, 113. ASSESSMENT OF DAMAGES. See Damages. ATHEISTS AND INFIDELS cannot claim relief under Act except in certain cases, 2, 3. BASTARD, BIRTH OF, how far proof of adultery, 334, 335. BESTIALITY, dissolution of marriage on ground of, 35, 41. BIGAMY, must be proved, criminal conviction not sufficient, 24. how established, 24, 141143. " BIGAMY WITH ADULTERY," defined, 19, 23. adultery not inferred from mere charge of bigamy, 24. BOND, to secure permanent alimony, 218, 219. " BRITISH SUBJECTS," British subjects resident in native states, applicability of Act to, 2. BROTHEL, VISITING, how far presumptive proof of adultery, 334. CHILDREN, minor, defined, 19, 23, 270. custody, maintenance and education of. See Custody of Children. settlement of guilty wife's property for benefit of, 241246. variation of marriage settlements, not to be at expense of, 247, 265. damages applied for benefit of, 196, 197. provision for children of annulled marriage, 148 150. " CHRISTIAN MARRIAGE," meaning of, 3, 4, 5. CHRISTIAN EELIGION, petitioner must profess, 2, 3. perversion from, consequences of, 15, 16, 39. CIVIL PROCEDURE CODE, proceedings to be regulated by, 281. INDEX. 433 CLEEGYMAN, not bound to solemnize marriages of persons divorced for adultery, 346. but must permit use of his church, 307. CLOSED DOOES, proceedings may be heard with, 297. COHABITATION, condonation not perfect without, 78, 79. condonation on part of wife not necessarily presumed from continuance of, 79, 80. rule of triennial, in suits for nullity causa impotentice, 131. withdrawal from, when amounting to desertion. See Desertion. resumption of, effect of, 154, 181. COLLUSION, meaning of, 86. petition for dissolution or nullity of marriage, or for judicial separation, must state absence of, 281, 282. Court must satisfy itself of absence of collusion before decreeing dissolution of marriage, 73. dismissal of petition by reason of, 85 et seq. what amounts to, 86 89. between agents of parties, 88. expression of wish for divorce does not constitute, 88. subsequent to decree nisi, 88. must be in pending suit, 89. as ground for intervention, 117 120, 125, 127. in suit for nullity of marriage, where marriage is null and void, 127. COMMISSION, to examine witnesses, costs of, 368. COMMISSIONER of division to be " district judge," 18. COMMITTEE OF LUNATIC may institute proceedings on behalf of charge, 283, 284. COMPENSATIO CRIMINUM, doctrine of, 94, 95. in suits for restitution of conjugal rights, 185, 186. COMPROMISE, of suit for dissolution, 37. of suit for judicial separation, 155. of suit for restitution of conjugal rights, 180182. of suit for nullity of marriage causa impotentice, 129. CONCURRENT JURISDICTION of High Court and district Court to entertain suits, 26. CONDONATION, Court to be satisfied of absence of, before decreeing dissolu- tion, 73. is a question of fact and not of law, 78. R. FF 434 INDEX. CONDONATION continued. meaning of, 78. of adultery, 78. of other offences, 79. on part of wife, 79. offence condoned may be revived by subsequent misconduct, 80, 81. is conditional, 81. agreement not to sue in respect of condoned offence, 81. pending suit or after decree nisi, 82. Court will take notice of, though, not pleaded, 82. limited to particular offence condoned, 82. claim for damages after, 83. suit by party whose own adultery has been condoned, 83, 95. CONFIRMATION OF DECREE, of district judge for dissolution of marriage, 124 127. of district judge for nullity of marriage, 147. CONJUGAL EIGHTS, SUIT FOE EESTITUTION OF. See destitution of Conjugal Eights. CONNIVANCE, Court to be satisfied of absence of, before decreeing dissolu- tion, 73. petition for dissolution or nullity or judicial separation to state absence of, 281, 282. what amounts to, 74, 75. presumption is against, 74, 76. delay in suing may be construed as, 77. operates as permanent bar to suit for dissolution, 77, 78. CONSANGUINITY as ground for decree of nullity, 128, 135139. CONSENT necessary to contract of marriage, 144, 147. CONSTRUCTIVE CRUELTY, doctrine of, 51, 52. CONTRACT OF MARRIAGE. See Marriage. CONVICTION OR ACQUITTAL IN CRIMINAL COURT, no proof in Divorce Court, 40, 339, 340. CO-RESPONDENT, alleged adulterer to be made, 68 73. death of, pending suit, 38. right of, to cross-examine respondent, 296, 334, 360. cannot oppose appeal by respondent, 302. when liable for costs, 199, 376381. when not liable, 199, 377379. for what costs liable, 379, 380, 381. cannot intervene, 117. no provision for making alleged adulteress, 68, 69. INDEX. 435 COSTS, of intervention proceedings in High Court, 110. when co-respondent may be ordered to pay, 199, 376 381. of intervention in suit in District Court, 199. no appeal merely as regards, 301, 303. next friend of minor must give undertaking as to, 285. discretion of Court, 362. wife's pending suit, 363 368. husband must give security for wife's, 363. when husband may be excused, 363 366. committee of lunatic husband must give security for wife's, 366. non-compliance with order to give security for wife's, 366, 367. dismissal or withdrawal of suit before hearing, 367. of interlocutory motions, 368. incurred previous to institution of suit, 368. wife's, after decree, 368376. judgment and decree to direct, by whom payable, 368, 369. when wife successful in suit, 369. husband's liability not limited to amount of security, 369. amount deposited primarily liable, 369. wife partly successful in suit, 370. wife not entitled to security for costs of intervention, 371. wife unsuccessful in suit or defence, 371 373, 374, wife may in certain cases be ordered to pay costs of inter- vention, 371. taxation of wife's costs, 374, 375. when wife entitled to security for costs of appeal, 375, 376. when co-respondent liable for, 199, 376 381. for what costs co-respondent is liable, 379, 380. co-respondent condemned in, subsequent intervention, 380, 381. when co-respondent allowed costs, 381. intervenor's, when allowed or disallowed, 382, 383. COUNTER- Court bound to inquire into, against petitioner, 73, 84. relief to respondent upon proof of, 107, 108. alleged adulterer allowed to intervene on, 108. of adultery, cruelty or desertion not permissible in suit for nullity, 110, 358. costs of wife's unfounded, 371, 373. what may be pleaded by way of, 355 358. "CouBT," denned, 19. COVENANT, not to sue, when a bar to suit for dissolution, 37, 54, 356. when bar to suit for judicial separation, 155, 356. when bar to suit for restitution of conjugal rights, 180 182. not to sue for an increased allowance, 235 237, 252. to appoint in favour of guilty party, 259. FF2 436 INDEX. CRIMINAL CONVERSATION, action for, abolished, 309. CRIMINAL COURT, conviction or acquittal in, no proof in divorce proceedings, 40, 339, 340. CROSS-EXAMINATION, of husband and wife in suit by wife for dissolution, 296, 297. right of, as between respondent and co-respondent, 296, 334, 360. CRUELTY, with adultery on part of husband, entitles wife to dissolution of marriage, 35. what amounts to legal, 41 54. charge of unnatural offence or of immorality, 44, 45. acts evincing lack of self-control, 45. single act of violence, 45. neglect of wife and adultery with servants, 47. threats, 47. spitting in wife's face, 48. communication of disease, 48, 49. drunkenness, 49, violence by lunatic, 50. undue familiarities with servants, 51. constructive, doctrine of, 51, 52. on part of wife, 51 53. is a question of fact, 53. condoned, may be revived, 53, 54. unless wife has covenanted not to sue in respect thereof, 54. judicial separation on account of husband's, effect of hus- band's subsequent adultery, 54. on part of petitioner generally disentitles to relief, 90, 101, 102, 153. when wife may sue for judicial separation by reason of hus- band's, 150. ^ pleading acts of, 345, 346, 357. not pleadable as answer to suit for nullity of marriage, 358. on part of petitioner in suit for restitution of conjugal rights, 179, 186. CUSTODY, EDUCATION, AND MAINTENANCE OF MINOR CHILDREN, power of Court to make interim orders as to, 266 268, 272 274. Court must be moved by separate petition, 269. Court fee on petition, 269. service of petition, 269. access to children pending suit, 269, 273, 274. no power to make orders as to, in suits for restitution of conjugal rights, 269. " minor children," defined, 19, 270, 271. intervention of third parties as to, 271, 272. interim orders, 272 274. prima facie right of father, 272. INDEX. 437 CUSTODY, &c. OF MINOR CHILDREN continued. both, parties must be before the Court, 273. application for, to be kept distinct from main question, 273. order as to, on or after final decree, 266268, 274280. Court has no power to make order as to, on dismissal of suit, 274. wide discretion of Court, 274, 275. general principles upon which Court acts, 275. primary consideration for Court, 275. distinction between minor sons and minor daughters, 275, 276. primd facie right of innocent party, 276, 277. guilty father will not be deprived of all control, 277. guilty party will not as a rule be given custody of children, 277. when neither parent is fit to have custody, 278. subsequent variation of order as to, 278. enforcement of order as to, 278, 279. access to children after final decree, 279, 280. maintenance of minor children, 280. children of annulled marriage, 280. CUTANEOUS DISEASE, communication of, when cruelty, 48, 49. as proof of adultery, 335. DAMAGES, husband may claim, from adulterer, 187, 188. must be ascertained by Court, 187. but petition must specify amount. 188, 347. Court fee on petition, 188. awarded by District Court, power of High Court to deal with, 189. cannot be claimed in respect of condoned adultery, 189. petition limited to claim for, to be served on wife as well, 187, 189. absolute bars to claim, for, 190. pleas in mitigation of, 190. nominal damages, 191. measure of damages, 191 194. husband's conduct to be considered, 192. means of co-respondent immaterial, 193. husband and wife living apart under a deed of separation, 193. non-appearance of alleged adulterer, 194. bankruptcy of alleged adulterer, 194. assignee of, right to intervene in suit, 195. apportionment of, 195 199. order for settlement of, may be made part of decree nisi or after decree absolute, 196. adding claim for, to prayer for dissolution, 352. 438 INDEX. DEAF AND DUMB PERSON, can contract valid marriage, 141, 147. DEATH or PARTIES, of petitioner before decree absolute terminates suit for all purposes, 38, 113, 249. of respondent, effect of, 38. of co-respondent, 38. of wife who has obtained protection order or been judicially separated, 161, 173. DECREE, of dissolution, 2, 90, 92. of dissolution by High Court to be decree nisi in first instance, 110. of dissolution by District Court must be confirmed by High Court, 124. of nullity of marriage, 2, 127. grounds for, 128. by District Court must be confirmed by High Court, 147. of judicial separation, 150, 152. reversal of, 164. for restitution of conjugal rights, 173. satisfaction of, 176. enforcement of, 177. enforcement of, and appeals from, 300 304. DECREE ABSOLUTE, effect of, 122, 123. as regards third parties, 123, 124. permanent alimony maybe allotted after, 215. variation of settlements after, 246, et seq. DECREE NISI, decree of dissolution by High Court to be, in first instance, 110, 112. does not terminate suit, 112. is not a decree within meaning of Civil Procedure Code, s. 1 ...112. is appealable, 113. when to be made absolute, 113, death of petitioner or respondent after, 38, 113. who may apply to make absolute, 114. application to be supported by affidavits, 114, 115. notice of application to respondent or co-respondent, 115. when application should be made, 115. intervention after. See Intervention. DEDUCTIONS, claimable by husband upon petition by wife for alimony, 208, 209, 238. DEED OF SEPARATION. valid only if it contemplates immediate separation, 180. desertion impossible while parties voluntarily separated under, 61. INDEX. 439 DEED or SEPARATION continued. failure to fulfil terms of, 61, 62. never acted upon, 62, 156. fraudulently obtained, 62. avoided by resumption of cohabitation, 63, 181. will not bar suit for judicial separation, 156, 356. unless it contains covenant not to sue, 155, 156, 356. covenant not to sue will not debar respondent from pleading petitioner's misconduct by way of answer to suit, 157. how far an answer to suit for restitution of conjugal rights, 180182. covenant not to sue in respect of future misconduct, 157, 158, 356. husband and wife living apart under, effect of, upon damages awardable, 193. covenant not to apply for increased maintenance, 235 237, 252. is a post-nuptial settlement within meaning of s. 40... 251, 252. DEFINITIONS, ' Christian Marriage," 4. 'Domicil," 13. < High Court," 17, 18. ' District Judge," 18, 19. ' District Court," 19. ' Court," 19. ' Minor Children," 19. ' Incestuous Adultery," 19. ' Bigamy with Adultery," 19. ' Marriage with another woman," 19. < Desertion," 20. < Property," 20. ' Cruelty," 41. DEGREES, PROHIBITED, marriage of persons within, 128, 135 139. DELAY, unreasonable, as bar to suit for dissolution, 99 101. as bar to suit for nullity propter impotentiam, 133 135. as bar to suit for judicial separation, 154. as bar to suit for restitution of conjugal rights, 183. in applying for permanent alimony, 216. DEMAND FOR COHABITATION, written, before institution of suit for restitution, 174. DESERTION, defined, 20. coupled with adultery, ground for dissolution in suit by wife, 35. in suit for dissolution, must have been for two years or upwards, 35, 54. 440 INDEX. DESERTION continued. bond fide offer by husband to resume cohabitation before expiry of two years, 55, 63. implies abandonment, 20, 55. must be against actively expressed wish, of other party, 55. separation due to husband's misconduct, 56, 57. separation due to wife's conduct, 57. facts constituting, vary, 58. absence on business, 58, 66. husband making wife an allowance, 58. must be a withdrawal from 'existing cohabitation, 59. separation may become, though not so at first, 60, 61. voluntary separation under separation deed, 61, 62. separation must be voluntary to constitute, 63, 64, 66. imprisonment of husband, 64. separation must have been without reasonable excuse, 65. what is, and what is not, reasonable cause, 65, 66, 67. on part of petitioner may disentitle to decree of dissolution, 90, 102, 103. on part of wife, no positive bar to her suit for dissolution, 109, 356. is a ground for judicial separation, 150. on part of petitioner, how far a bar to relief in suit for judicial separation, 154. gives wife a right to apply for protection order, 165, 169. how to be pleaded, 346. charge of, answer to, 357. DISCOVERY, should not be required from parties to prove adultery, 358, 359. DISCRETION or COURT, in granting or refusing decree for dissolution, 93. when petitioner has been guilty of adultery, 83, .93 99. or of unreasonable delay, 99 101. or of cruelty, 101, 102. or of desertion, 102, 103. or of neglect or misconduct, 103, 104 107. in fixing time for making decree nisi absolute, 113, 114. in granting or refusing decree for judicial separation, 153 158. in suits for restitution of conjugal rights, 175, 180, 182. in assessing damages, 191. in the settlement of damages, 196. in allotting permanent alimony, 223 et seq. as to insertion of dum casta clause, 239. as to settlement of guilty wife's property for benefit of husband and children, 241 et seq. as to variation of settlements, 252 et seq. as to custody of minor children, 272280. as to dispensing with service of petition, 290, 347 349. as to adjourning proceedings, 297. DISEASE. See Cutaneom Disease. INDEX. 441 DISMISSAL OF PETITION, for dissolution of marriage, 85, 90 107. by district Court does not bar petition to High Court, 85. for judicial separation, 152 158. for restitution of conjugal rights, 177 187. Court has no power to make orders as to custody of children upon, 274. of wife, costs, 367, 371. co-respondent not necessarily granted costs upon, 378, 379, 381. DISSOLUTION OF MARRIAGE, jurisdiction of Court to decree, 2 16. when husband may petition for, 35. when wife may petition for, 35. alleged adulterer to be made co-respondent in suit for, 68. Court to be satisfied of absence of collusion in suit for, 73. dismissal of petition for, 85. power of Court to pronounce decree of, 90, 91, 93, 107. relief to respondent in case of opposition to suit for, 107. decree of, by High Court to be nisi in first instance, 110, 112, 113. decree of, by District Court to be confirmed by High Court, 124. petition for, contents of, 25, 67, 68. Court fee upon, 37. decree of judicial separation in suit for, 39, 92. Court not bound to decree, against wish of petitioner, 92, 93. decree absolute, effect of, 122, 123. does not per se create forfeiture under settlements, 247. DISTRICT COURT, defined, 19, 22. matrimonial jurisdiction of, 25 28. to act on principles of English Divorce Court, 33. removal of suit from, 34. reference of questions to High Court by, 34. petitions for dissolution to, 35. dismissal of petition for dissolution by, 85, 89. confirmation of decree for dissolution of, 124, 125. intervention during progress of suit for dissolution, 125. petition for nullity to, 127. confirmation of decree of nullity of, 147. petition for judicial separation to, 152. reversal of decree for judicial separation by, 164. petition for protection order to, 165. discharge of protection order by, 171. petition for restitution of conjugal rights to, 173. to ascertain damages, 187. may order alimony, 200, 213. may order settlement of guilty wife's property, 241. may inquire into settlements, 246. may makeorders as tocustody, &c. of minor children, 266, 267. enforcement of, and appeals from, decrees of, 300, 301, 302. 442 INDEX. " DISTRICT JUDGE," defined, 18. See District Court. DIYOECED PERSON, condition of, 122. right of divorced wife to retain marriage name, 122. re-marriage of, 304 307. DOMICIL, only test of jurisdiction in suits for dissolution, 7. definition of, 13. distinct from nationality, 13. of origin, 13. of choice, 13, 14. of married woman, 15. capacity to contract valid marriage depends on parties', 135. DRUNKENNESS, not per se legal cruelty, 49, 52, 53. on part of wife does not justify desertion by husband, 53, 65. DUM CASTA ET SOLA CLAUSE, insertion of, in instrument securing wife an allowance, 289. DURESS, power of High Court to annul marriage obtained by, 128. ENFORCEMENT OF DECREES AND ORDERS, decree for restitution of conjugal rights, 177. generaUy, 300304. ENGLISH COURT OF DIVORCE, Court to act on principles of, 33. rules and regulations of, 384 et seq. ENGLISH MARRIAGE, jurisdiction of foreign Court to dissolve, 8. ESTOPPEL, res judicata in matrimonial suits, 37, 337 341. EUROPEAN BRITISH SUBJECT defined, 20, 302. EVIDENCE, of acquisition of new domicil, 14, 15. of bigamy with adultery, 23, 24. of respondent's ante-nuptial incontinence inadmissible, 39. of criminal conviction for offence, 40. of sodomy, 41. when Court not satisfied on the, petition to be dismissed, 85. when Court is satisfied on the, 90, 152. decree for dissolution not to be made without recording, 91. respondent competent to give, as to petitioner's cruelty or desertion, 108, 109. power of High Court to require additional, 110, 124. of respondent's impotencyin suits for nullity, 129, 131, 132, 133. INDEX. 443 EVIDENCE continued. of insanity of one of the parties, 140, 141. of marriage in suit for restitution of conjugal rights, 175. what is admissible, in suits for restitution of conjugal rights, 177187. of character, 190, 346. mode of taking, 291. when the parties may be compelled to give, 292, 293. verification of case by affidavits, 291, 294 295. cross-examination of respondent by co-respondent, 296. of husband and wife in suits by wife for dissolution, 296. of marriage, 326329. of identification, 330, 331. of adultery, 332336. estoppel and resjudicata, 337 341. not to be pleaded, 345, 356. of cruelty, 345. examination and cross-examination of parties, 296, 360, 361. EXAMINATION AND CROSS-EXAMINATION of parties, 296, 360, 361. EXCUSE, for delay in suing. See Delay. for desertion, 65 67. for petitioner's own adultery, 96 98. EXECUTION OF DECREE OR ORDER stayed pending reference to High Court, 34. EXTENT OF ACT, 2. FACE, spitting in wife's, 48. FAMILIARITIES, UNDUE, with female servants not per se cruelty to wife, 51. wife permitting, 66. falling short of adultery revive condoned adultery, 80, 81. FATHER, child's domicil at birth is that of the, 13. age of minority of child of native, 19. primd facie right of, to custody of child, 23, 266280. FORCE, physical or moral, when legal cruelty, 47. jurisdiction of High Court to annul marriage obtained by, 128. marriage obtained by, void not merely voidable, 143, 144. FOREIGN COURT, jurisdiction of, to dissolve marriage, 8 10. 'judgment and decree of, how far res judkata, 340, 341. 444 INDEX. FORMA PAUPERIS, husband suing in, for restitution, 182. wife suing in, costs payable by husband, 369. costs of husband's suing in, 380. FORMS, of petitions, statements, &c., 311 322. prescribed by rules of English Divorce Court, 413 426. intended merely as examples, 281. of decrees for restitution of conjugal rights, 176. FRAUD, deed of separation obtained by, 62. jurisdiction of High Court to annul marriage obtained by, 128. marriage obtained by, void and not merely voidable, 143, 144. GROSS OR ANNUAL SUM, power of Court to award as permanent alimony, 213. how secured, 219. when alienable, 221 223. GUARDIAN of children, application to vary settlement by, 249. of lunatic, suits by, 283 285. of minor, suit by, 285290. GUILTY PARTY, not entitled to apply to make decree nisi absolute, 114. not entitled to intervene, 117. wife, settlement of her property in favour of husband and children, 241246. wife, permanent provision for, 231. not entitled to apply for variation of settlements, 250. interests of, in marriage settlements, 259 265. not entitled ordinarily to custody of children, 277 279. wife, costs of, 371374. HEARING CASE IN CAMERA, 297. HIGH COURT, defined, 17, 18. jurisdiction of, 25. to act on principles of English Divorce Court, 33. extraordinary jurisdiction of, 33, 34. reference to, 34. petitions to, 35, 85, 127, 152, 165, 173, 187. decree for dissolution to be nisi, 110. intervention proceedings in, 110. may make decree absolute, or reverse decree nisi, or require further evidence, 110. discretion as to costs of intervention, 110. INDEX. 445 HIGH COURT -continued. may dismiss suit in default of application to make decree nisi absolute, 111. to confirm decrees of dissolution by district judges, 124. may direct further inquiry before confirming decree, 124. during suit in district Court intervenor may apply to, for removal of suit, 125. may remove suits from district Court or direct district judge to take steps, 125. jurisdiction of, to make decree of nullity on ground of force or fraud not affected by sect. 19... 128. to confirm decree of nullity by district Court, 147. power of, to order permanent alimony, 2 la. may inquire into existence of settlements, 246. power of, to make orders as to custody of children, 266, 267. may direct manner of service of petitions, 290. no appeal from order of, confirming or refusing to confirm decree, 301, 303. appeal to Privy Council from order of, 303, 304. power of, to make rules, 309. HUSBAND AND WIFE, when competent and compellable wit- nesses, 292, 293, 296. HUSBAND, apostacy of, gives Court jurisdiction in suits for dissolution, 2, 15, 16. domicilof, 6, 7, 11, 15. primd facie right of, to custody of children, 23. when may petition for dissolution of marriage, 35. when wife may petition for dissolution against, 35. apostacy of, and marriage with another woman, 39. must make alleged adulterer co-respondent, 68. connivance on part of, 74, 75. condonation of offence by, 78, 79. collusion by, 8689. relief to wife in suit for dissolution by, 107. relief to, in suit by wife for dissolution, 107 109. not entitled to decree absolute until arrears of alimony are paid, 113. when may sue for nullity of marriage, 127, 128. when may obtain decree of judicial separation, 150 158. loses all interest in property of wife after decree of judicial separation, 158, 161. when liable for necessaries supplied to wife after decree of judicial separation, 162. when may petition for reversal of decree of separation, 164. wife deserted by, may apply for protection order, 165. may apply for discharge of protection order, 171. effect of protection order as regards the, 171. may apply for restitution of conjugal rights, 173 187. may claim damages from adulterer, 187 199. alimony pendente lite payable by, 200 213. permanent alimony payable by, 213 240. 446 INDEX. HUSBAND continued. settlement of guilty wife's property for benefit of children and husband, 241246. rights of, as to custody of minor children, 266 280. suit on behalf of, or against, lunatic, 283, 284. minor, 285290. when competent or compellable witness, 291 293, 296. liability for wife's costs, 363 376. liability of co-respondent for costs of, 376 382. IDENTIFICATION OF PARTIES, 330, 331, 339. IDIOT, nullity of marriage on ground that either party was an, at time of marriage, 128. custody of child who is an, 277. suit by, or against, 283. IGNORANCE OF FACT, adultery committed by petitioner in, 96. IGNORANCE OF LAW, adultery committed by petitioner in, 96. as excuse for delay in suing, 100. IMPOTENCY of either party to marriage, ground for nullity, 128135. IMPRISONMENT, husband undergoing, may yet be guilty of desertion, 63, 64. wife undergoing, entitled to alimony pendente lite, 205. IN CAMERA, proceedings may be heard, 297. INCESTUOUS ADULTERY, defined, 19, 23, 139. as ground for dissolution of marriage, 35, 40. condoned, may be revived by subsequent adultery, 81. INCOME OF HUSBAND, computation of, for purposes of allotting alimony, 207209, 238. INCONTINENCE, ANTE-NUPTIAL, not pleadable, 39, 345, 356. INFORMALITY of marriage, Court cannot decree nullity on ground of, 129, 187, 324. INJUNCTION, to restrain husband from dissipating his property, 212, 220. to restrain husband or wife from disposing of property pend- ing inquiry under sect. 40... 251. INSANITY, of respondent in suit for dissolution, 38, 39. cruelty committed under influence of, 50. of party at time of marriage as ground for decree of nullity, 128, 139141. INDEX. 447 INSANITY continued. children of marriage annulled on ground of, 148. of petitioner, in suit for restitution of conjugal rights, 183. of husband or wife, 283, 284. INSPECTION, when allowed, 358, 359. INSPECTORS, MEDICAL, appointment of, in suits for nullity causa impotentice, 132, 133. INTEMPERANCE, does not per se amount to legal cruelty, 49, 52, 53. on part of wife does not justify desertion by husband, 65. INTERCOURSE, MARITAL, wilful refusal of, may justify separation, 66. may be ground for decree of nullity, 133. INTERIM ORDERS, as to alimony, 200213. as to custody of children, 266, 272274. INTERROGATORIES, and discovery of documents, 358. INTERVENTION, in suits for dissolution of marriage in High Court, 110, 116. permissible at any time before decree nisi is made absolute, 116. who may intervene, 116, 117. grounds of, 117 121. " material facts not being brought before the Court," 118 120. reconciliation of parties after decree nisi, 120, 121, 126. evidence of adultery pleaded by intervenor, 121, 331. prevents withdrawal of petition, 121. admissions by, or non-appearance of, petitioner upon, 122. in suits for dissolution in District Court, 125, 126. not permissible in suit for nullity, 127, 147, 148. power of Court to order intervenor to pay costs, 199, 382, 383. when co-respondent will be ordered to pay costs of, 380, 382. effect of, as regards order in decree nisi to pay costs, 370. wife not entitled to security for costs incidental to, 371. of third parties, upon questions as to custody of children, 271, 272. INTESTACY, of wife judicially separated, 161. of wife who had obtained protection order, 173. JACTITATION or MARRIAGE, Courts have no power to entertain suit in respect of, 25. JOINT, income of husband and wife in question of alimony, 205, 209, 223. power of appointment, variation of, 257, 258. separated wife may join in exercise of joint power, 162. 448 INDEX. JUDICIAL SEPARATION, when decreed in suits for dissolution, 39, 151, 351. grounds for, 150. at prayer of respondent in suit for restitution of conjugal rights, 151. application for, to be made by petition, 152. bars to relief, 152 158. a) petitioner's adultery, 153. b) petitioner's cruelty, 153. c) petitioner's desertion, 154. d) petitioner's delay in suing, 154. e) petitioner's misconduct or neglect, 155. (f) petitioner's covenant not to sue, 155. (g) resjudicata, 158. position of wife after decree of, 158 163. reversal of decree of, 164, 165. husband may claim damages in suit for, 187. in suit for, adulterer may be ordered to pay costs, 199. wife entitled to alimony pending suit for, 200. when wife entitled to permanent alimony after decree of, 217, 218. permanent alimony inalienable when granted after decree of, 221. wife in receipt of allowance under deed of separation apply- ing for increase of maintenance after decree of, 235, 236. power of Court to order settlement of guilty wife's property after decree of, 241. power of Court to inquire into, and vary, settlements after decree of, 246. power of Court to make orders as to custody of children in suits for, 266. petition for, to state absence of collusion and to be verified, 281, 282. suit for, on behalf of lunatic or minor, 283 290. service of petition for, 290, 347349. enforcement of, and appeal from decree of, 300 304. decree for, effect of, as regards persons dealing with wife, 307, 308. prayer for dissolution substituted for prayer for, 352. JURISDICTION, to grant any relief under Act, 2, 3 7, 25. to decree dissolution of marriage, 2, 7 16, 26, 36. to decree nullity of marriage, 2, 17. party estopped from denying, 12, 13. Courts have no jurisdiction to make decrees of legitimacy or to entertain suits in respect of jactitation of marriage, 25. objections to, 31, 32. Court not debarred from granting alimony pending suit by reason of objection to, 32. facts giving Court, to appear on face of record, 27. extraordinary, of High Court, 33. of High Court to annul marriage on ground of force or fraud, 128, 143. INDEX. 449 LEAVE TO APPEAL to Privy Council, 303, 304. LEGITIMACY, Courts have no jurisdiction to make decrees of, 25. as regards children of annulled marriage, 148, 149. LEX Loci CELEBRATIONIS, importance of, as regards formalities of marriage, 323. Lis, decree nisi does not terminate, 112. no Us pendens before decree nisi as regards settlements, 255. suit for restitution of conjugal rights pending suit for dis- solution, &c., 183. LOLLEY'S CASE, what was actually decided in, 8. LUMP SUM, when decreed as permanent alimony, alienability of, 221223. LUNACY. See Insanity. MAINTENANCE OF CHILDREN, damages recovered ordered to be settled for, 195. by wife, no ground for allotting increased alimony, 224. by husband, as regards amount of alimony pendente lite to wife, 209. guilty wife's property may be settled for, 241. variation of settlements to provide for, 246, 265. custody, maintenance and education of children, 266 280. MAINTENANCE OF WIFE. See Alimony. does not alter character of desertion, 58, 65. no sufficient compliance with decree for restitution, 176. MAKING DECREE NISI ABSOLUTE, 113 115. MARRIAGE, " in Christendom," meaning of, 3 6. English, dissolubility of, 8. with another woman, 19, 24, 35. bigamous, how proved, 23. not dissolved until decree absolute, 112. capacity to contract valid, depends on lex domicilii, 135. jactitation of, suit in respect of, 25. must be proved before Court can decree restitution of con- jugal rights, 175. validity of, 135139, 323326. proof of, 326329. presumption in favour of, 128, 326. MARRIAGE, DISSOLUTION OF. See Dissolution of Marriage. MARRIAGE- NAME, right of divorced wife to retain, 122. MARRIAGE, NULLITY OF. See Nullity of Marriage. K. G G 450 INDEX. MARRIAGE SETTLEMENTS. See Settlements. MARRIED WOMEN'S PROPERTY ACT (INDIA) OF 1874... 159. " MATERIAL FACTS NOT BROUGHT TO KNOWLEDGE OF COURT," 118120. "MATRIMONIAL HOME," 9. MEANS, of husband, in questions as to amount of alimony pendente lite, 206, 210. wife having sufficient, of her own, alimony pendente lite, 206. of co-respondent, not to be considered in assessing damages, 193. MEDICAL INSPECTORS. See Inspectors, Medical. MINOR, age of majority, 285. suits by or against, 285 290. " MINOR CHILDREN," defined, 19, 23, 270. custody, maintenance and education of, 266 280. MISCONDUCT, of petitioner, as bar to suit for dissolution, 90, 103 107, 357. of petitioner, no bar to suit for nullity, 358. of petitioner, as bar to suit for judicial separation, 155. of petitioner, as bar to suit for restitution of conjugal rights, 178180. of wife, as disentitling to alimony, 205, 206, 231234. of husband, as disentitling him to rely on deed of separation, 236, 237. of husband, as disentitling hrm to costs, 378, 379. of wife's solicitor, costs, 373. MONTHLY OR WEEKLY PAYMENTS, as permanent provision for wife, 213. nature of, 221, 222, 240. MOTHER, when given custody of children. See Custody of Children. NAME, MARRIAGE, right of divorced wife to retain, 122. NATIVE FATHER, age of majority of children of, 19. NECESSARIES, supplied to wife judicially separated, 162, 163. NEGLECT, neglect of wife does not constitute legal cruelty, 47. on part of petitioner may act as bar to decree of dissolution, 90, 103106. on part of petitioner may act as bar to decree of judicial separation, 155. INDEX. 451 NEW TEIAL, no provision for, in Indian law, 28. NEXT FRIEND may sue on behalf of minor, 285289. NON-BEGULATION PROVINCES, " High Court," for, 17, 18. " District Court" for, 18, 19. NOTICE, of application to make decree nisi absolute, 115. liability of husband seizing wife's property after notice of protection order, 171. of application to vary settlements, 248, 249. of application for custody of children, 269, 349. decree for separation or protection to be valid as to persons dealing with wife without notice of reversal, 307, 308. NULLITY OF MARRIAGE, jurisdiction to decree, 2, 17, 128. respondent may not plead petitioner's adultery, &c., 110, 127, 358. who may sue for, 127. collusion between parties, 127, 281. Court fee on petition for, 127. ceremony of marriage must be proved in suit for, 128. grounds for, 128, 129. decree for, in England is decree nisi at first, 128. Court cannot entertain suit for, otherwise than as provided by Act, 128. on ground of impotency, 129 135. impotency of petitioner, 129. marriage only voidable, not void, 129. suit for, on ground of impotency, can be compromised, 129. age of parties, 130. what constitutes impotency, 130. impotency quoad hunc vel hanc, 131. burden of proof, 131. triennial cohabitation, 131. evidence of impotency, 132, 133. presumption of impotency, 133. delay in suing suggestive of insincerity, 133, 134. marriage within prohibited: degrees, 135 139. capacity to contract valid marriage, 135. consanguinity or affinity, 139. lunacy or idiocy of party to marriage, 139 141. person subject to delusions, 140. burden of proof, 140. supervening lunacy, 140. marriage of deaf and dumb person, 141. suit by committee of lunatic, 141. marriage of person already married, 141 143. bigamy, 141, 142. burden of proof, 142. re-marriage of divorced person before expiry of appointed time, 142, 143. GG2 452 INDEX. NULLITY OF MARRIAGE continued. fraud or force as affecting marriage, 143 147. deceit as to position and means, 147. mistake., 147. decree of, by district judge, to be confirmed, 147, 148. no provision for intervention in suits for, 148. children of annulled marriage, 148 150, 251, 280. alimony pendente lite in suit for, 201. variation of settlements upon decree of, 246, 250, 251. orders as to custody, &c. of children in suits for, 266 280. husband to give security for wife's costs in suit for, 363. OFFER to return to cohabitation before expiry of two years' desertion, 55, 57, 63. " OMNIA PR^ESUMTINTUR RITE ESSE ACTA," presumption in favour of marriage, 128, 326. ORDERS, enforcement of, and appeals from, 300 304. See Alimony ; Custody of Children; Protection Order; Settlements. ORIGIN, DOMICLL OF. See Domicil. PANJAB, "High Copt," for, 17, 18. " District judge," in, 20. PARTICULARS, order for further, 355, 358. PARTIES, domicil of, as affecting jurisdiction, 6 16. death of one of the, 38, 113. collusion between, 8589, 120, 125. both guilty of adultery, 83, 9399, 153, 184186. costs of intervention may be ordered to be paid by, 110. reconciliation of, after decree nisi, 120, 121, 126. effect of decree absolute as regards the, 122 124. to suit for nullity of marriage, 127. to marriage within prohibited degrees, 128, 135 139. adulterer liable for costs when made party to suit, 199. to petition for variation of settlements, 248, 249. intervention of third, on application for custody of children, 271, 272. lunacy or idiocy of either of the, 283, 284. minority of either of the, 285 290. when competent or compellable witnesses, 291 297, 360, 361. re-marriage of the, after divorce, 304 307. evidence of, as to marriage, 327, 328. INDEX. 453 PARTIES continued. identity of, 330, 331, 339. appearance of, at hearing, 352, 353. costs as between the, 362 383, co-respondent not " a party " to an intervention, 382. PAUPER, suit for restitution by husband who is a, 182. petitioner, costs of, 369, 380. husband excused from payment of alimony pending suit, 206. payment of monthly or weekly sums not confined to, 240. security for wife's costs from, 367. PENDENTE LITE, ALIMONY. See Alimony pending Suit. PERMANENT ALIMONY. See Alimony, Permanent. PERSONAL EEPRESENTATIVE, of petitioner not entitled to apply to make decree nisi absolute, 113. PERSONAL SERVICE, of petition, 347 349. PETITION, petitioner must profess Christianity and reside in India at time of presenting, 2. for dissolution of marriage, 35. alleged adulterer to be made co-respondent to, 68. Court to be satisfied of absence of collusion, 73. dismissal of, 85. petitioner may present similar, to High Court, 85. intervention prevents withdrawal of, 121. for nullity of marriage, 127. for judicial separation, 150, 152. for reversal of decree of separation, 164, 347. for protection order, 165. for restitution of conjugal rights, 173. for damages, 187, 347. for alimony pendente lite, 200. for permanent alimony, 215. for variation of settlements, 247. for custody of children, 269. to be verified and to state absence of collusion or connivance, 281, 282. service of, 290, 347349. adjournment of hearing of, 297. evidence of adultery not pleaded in, 336. pleadings, 342346. withdrawal of, 121, 349, 350. amendment of, 350 352. PETITIONER, must profess Christianity and reside in India at time of pre- senting petition, 2. lunatic or idiot or minor, 36, 283 288. 454 INDEX. PETITIONER continued. death of, 38. connivance or collusion on part of, 73, 74. guilty of adultery, 83, 9399, 119, 135, 153, 184186, 336. counter- charge against, 84. guilty of delay in suing, 99101, 133135, 154, 183, 216. guilty of cruelty, 90, 101, 102, 153, 179, 186, 358. guilty of desertion, 90, 102, 103, 109, 154, 356. guilty of wilful neglect or misconduct, 90, 103 107, 155, 178180, 205, 206, 358. agent of, bringing about respondent's adultery, 106, 107. condonation by, 78 83. impotency of, 129. covenant by, not to sue, 155, 180. appearance of, 352, 353. admissions by, or non-appearance of, upon intervention, 122. PHOTOGEAPH, identification by, 330, 331. PLEADINGS, to state facts succinctly, 342. pleading adultery, 343 345. cruelty, 345, 346. desertion, 346, 347. answer to petition, 354 358. for alimony, 207209. amendment of, 350 352, 358. POLYGAMOUS UNION not marriage for purposes of Act, 4, 5. POST-NUPTIAL SETTLEMENT, deed of separation is a, for pur- poses of sect. 40... 251. POWER OF APPOINTMENT, when Court will vary, or deprive guilty party of, 257259. PRACTICE, notes on matters relating to, 342 361. PRESUMPTION, is against connivance, 74. condonation, 78, 79. in favour of validity of marriage, 128, 326. PRINCIPAL responsible for acts of agent, 73, 74, 88, 106, 107. PRIVY COUNCIL, appeal to, 303, 304. PROCEDURE, CODE OF CIVIL, to regulate proceedings under Act, 281. PROHIBITED DEGREES of consanguinity or affinity, 135 139. PROPERTY, defined, 20, 161. injunction to restrain husband dissipating, 212, 220, 251. order protecting property of wife, 165 173. INDEX. 455 PROPERTY continued. of wife acquired after judicial separation, 158 161. of husband, computation of, for purposes of alimony, 207 210, 238. power of Court to order settlement of guilty wife's, 241 246. wife possessed of separate, costs, 363, 373, 374. PROSTITUTE, wife living as, husband excused from making adulterer co-respondent, 68 71. adulterer not liable for costs when wife leading life of, 199. evidence of, 336. PROTECTION ORDER, when deserted wife may apply for, 165. Court fee on petition, 168. affidavit in support of petition for, 168. petition to be served on husband, 168. desertion need not have been for two years, 169. property covered by order, 169. order to be in general terms, 170. discharge or variation of order, 171. application for discharge may be made at any time, 171. liability of husband seizing wife's property after notice of, 171. wife's legal position during continuance of, 171. has retrospective effect, 172. continuing liability of husband after, 172, 173. death of wife intestate after, 173. reversal of, as regards persons dealing with wife, 307, 308. QUEEN'S PROCTOR, no corresponding official in India, 93. QUOAD HUNC VEL HANC, impotency, 131. EAPE, is ground for dissolution on wife's petition, 40. proof of conviction for, not sufficient, 40. SEASONABLE CAUSE, for leaving wife, 65 67. EECONCILIATION OF PARTIES, after decree nisi, 120, 121, 126. EEDUCTION OF ALIMONY, power of Court to reduce amount of alimony pendente lite, 209. EEFERENCE TO HIGH COURT, by district Court, 34. EEFUSAL OF MARITAL EIGHTS, may excuse husband's desertion, 66. may raise presumption of impotency, 133. 456 INDEX. REGULATION PROVINCES, High Court in, 17. District Court in, 18. BELIEF, bargaining away right to, 62, 155, 156, 180, 182, 356. to respondent in suits for dissolution, 107 110. REMARRIAGE, of persons after divorce, 142, 143, 304306. can divorced persons intermarry again, 306. clergyman not bound to solemnize marriage of guilty party, 306, 307. REMOVAL OF SUITS, power of High Court to order, 33, 34, 125. REPLY. See Answer. RESIDENCE, petitioner must have, in India, 2, 6 12. meaning of term, 21, 22. fact of, should be set out in judgment, 22. of husband and wife within jurisdiction of Court, 18, 19. RES JUDICATA, in matrimonial suits, 336 341. RESPONDENT, death of, 38. insanity of, 38, 39, 283. leading life of prostitute, 68, 71, 199. minority of, 289, 290. relief to, in suits for dissolution, 107 110. impotency of, in suits for nullity, 129. decree against, in dbsentem, 6, 7. may not intervene, 117. cannot apply to make decree nisi absolute, 114. RESTITUTION OF CONJUGAL RIGHTS, Court cannot decree in suit for dissolution, 109. application for, when to be made, 173. Court fee on petition, 174. previous written demand for cohabitation, 174. marriage must first be proved, 175. alimony pending suit for, 175. motives of petitioner, 175. after decree for, husband respondent must take initiative, 176. allowance to wife not sufficient compliance with decree for, 176. form of decree, 176. satisfaction of decree, 176, 177. answer to suit for, 177, 356. what may be pleaded by way of answer to suit for, 177 187, 356. respondent may plead that separation was for good cause, 178. covenant not to sue for, 180 182. INDEX. 457 EESTITUTION OF CONJUGAL EIGHTS continued. poverty of husband petitioner, 182. husband's change of religion, 182. delay in suing for, 183. insanity of petitioner, 183. petition for, pending suit by respondent, 183, 184. right to begin, 184. doctrine of compensatio criminis, 185, 186. petitioner guilty of cruelty or desertion, 186. marriage null and void, 187. EESTRAINT UPON ANTICIPATION, decree of judicial separation removes, 160, 161. EETURN, bond fide offer by husband to resume cohabitation after separation, 55, 63. wife willing to, but under reasonable conditions, 57. EEVERSAL OF DECREE, of judicial separation, 164, 165, 347. of protection, 171. effect of reversal as to persons dealing with wife, 307, 308. EEVIEW OF JUDGMENT, 2831. EEVIVAL of condoned offence, 80 81. EULES, power of High Court to make, 309, 310. of English Divorce Court, 384426. SCHEDULE OF FORMS, 311322. SECURITY FOR COSTS. See Costs. SEPARATE PROPERTY, wife possessed of, costs, 363, 373, 374. acquired by wife after judicial separation, 158 161. of wife, covered by protection order, 165 173. SEPARATION DEED. See Deed of Separation. SERVICE OF PETITION, 290, 291, 347349. SETTLEMENTS, MARRIAGE, of guilty wife's property for benefit of husband or children, 241, 242. no power under sect. 39 to deal with marriage settlements, 243. wife entitled to property without power of anticipation, 243, 244. spes successions not property, 244, 245. property acquired by wife after decree nisi, 245. Court will not make allowance to husband variable, 246. nor enter into accounts between husband and wife, 246. R. H H 458 INDEX. SETTLEMENTS , MARRIAGE continued. when Court may inquire into existence of settlements, 246 266. dissolution of marriage does not entail forfeiture under, 247. inquiry made by Court only on petition, 247. Court fee on petition, 247. contents of petition,- 248. when petition to be filed, 248. service of petition, 248. who may apply, 249, 250. variation of, after judicial separationor decree of nullity, 250. injunction to restrain dealing with property pending inquiry, 251. what are marriage settlements, 251, discretion of Court in dealing with, 252, 253. considerations for Court, 253 256. conduct of parties to be considered, 254. no variation of, for collateral purpose, 254. interests of third parties in, 255, 256. finality of order, 256. dividends due before order made, 256. property includes capital as well as income, 257. annuity under deed of separation, 257. wife's power of appointment among children, 257. husband's power of appointment, 258. power of appointing new trustees, 258. variation of, guilty husband, 259 261. guilty wife, 261264. variation of deeds of separation, 264, 265. no variation at expense of children, 265. costs of application to vary, 265. SODOMY or bestiality, ground for dissolution on wife's petition, 35, 41. SPITTING IN WIFE'S FACE, legal cruelty or not, 48. STATUS, question of divorce is incident of, 9. STAY OF PROCEEDINGS, on husband's failure to give security for costs, 366, 367. as regards alimony, 216. SUBSTITUTED SERVICE, when Court will allow, 347. SUCCESSION ACT (INDIA), 165, 167, 168, 364. SUIT, abatement of, 38, 113. compromise of, 37, 129. decree nisi does not terminate, 112. withdrawal of, 121, 349, 350. dismissal of, 85. SUPREME COURT, enforcement of decrees made by, 32. INDEX. 459 TAXATION OF COSTS of wife, 374, 375. THIRD PARTIES, intervention as to custody of children, 271, 272. THREATS, do not amount to legal cruelty, 47, 48. adultery of wife due to husband's, 97. marriage obtained by, 144 147. TRIENNIAL COHABITATION, in suits for nullity causa impotentice., rule as to, 130, 131. TRUSTEES, power of appointing new, 258. Two YEARS, statutory period for desertion, 35, 54, 150. UNDERTAKING As TO COSTS by next friend of minor, 285, 286. UNDUE DELAY may suggest want of sincerity or connivance, 99, 100, 132135, 154. VALIDITY OF MARRIAGE, as to essentialia, 135 139. as to formalities, 323. VARIATION OF SETTLEMENTS. See Settlements. VENEREAL DISEASE, communication of, when legal cruelty, 48, 49. as proof of adultery, 335. VERIFICATION of petitions, 281 283. VEXATIOUS SUITS BY WIFE, ground for allotting her less than usual amount of alimony pendente lite, 206. VOIDABLE MARRIAGE, on ground of impotency, 129. as to fraud or duress, 143, 144. WAGES, husband in receipt of weekly, only, alimony pendente lite, 211. WANT OF MEANS, as excuse for delay in suing, 100. WEEKLY OR MONTHLY PAYMENTS, power of Court to order, as provision for wife, 213, 214, 240. inalienability of, 220223. WIFE, domicil of, 15. property of, 20, 158161, 165173. when may apply for dissolution of marriage, 35. 460 INDEX. WIFE continued. ante-nuptial incontinence of, 39, 345 356. uncorroborated evidence of, as to sodomy, 41. cruelty on part of, 51, 52. misconduct on part of, may excuse husband's desertion, 37, 66, 67. entitled to husband's society and protection, 58. connivance on part of, 75. condonation by, 79. adultery by, due to husband's compulsion, 97. may apply for nullity of marriage, 127, 128. for judicial separation, 150, 152. after judicial separation, to be deemed feme sole, 158 163. when deserted, may apply for protection order, 165 173. may apply for restitution of conjugal rights, 163 187. petition for damages against adulterer to be served on, 187. alimony pendente lite, 200 213. permanent alimony, 213 241. property of guilty, may be settled on husband and children, 241246. variation of settlements as regards a, 246 266. rights of, as to custody of children, 266 280. lunatic or idiot, suit by or against, 283 285. minor, suit by or against, 285290. when competent or compellable witness, 291 297, 360, 361. as to persons dealing with, after judicial separation or pro- tection order, 307, 308. costs of, or against, 362 376. WITHDRAWAL OF PETITION, intervention prevents, 121. when permissible, 349, 350. WILDY AND SONS, LINCOLN'S INN ARCHWAY, LONDON. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. DEC 7 1973 Form L9-Series 444 UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 667 274 5