Nusserwanji Pestonji Wadia v. Eleonora Wadia .

Scott, C.J:— The first question that arises is whether the Court has jurisdiction to entertain this suit which is for restitution of conjugal rights.

2. The petitioner is an English woman professing the Christian religion.

3. The respondent is a Parsi whose parents reside in Bombay. The parties were married in London on 4th August 1911.

4. On 11th October in that year, they started for India and arrived in Bombay about the end of that month.

5. On 3rd February 1912, they left Bombay again for London travelling via Marseilles. They arrived at Victoria Station, London on 19th February 1912, where the respondent left the petitioner. He has since refused to live with her though offering her a certain maintenance. It is alleged on affidavit that subsequent to February 1911 he has obtained employment as a commercial traveller on £200 per annum in England.

6. On 8th March 1912, the petitioner announced her intention of going to India to bring her case before an English Judge as soon as the necessary arrangements for her going and remaining there for the necessary time, etc., were completed.

7. She started for Bombay to carry out her resolution on 19th April, and arrived on 10th May 1912. She filed her petition for restitution in this Court on 27th June.

8. The learned Judge finds as a fact, and it is not disputed, that she came to Bombay in order to file her petition. He was of opinion that this Court had jurisdiction to try the suit, under Section 2 of the Divorce Act, if it found that the petitioner professed the Christian religion and resided in Bombay at the time of presenting the petition; and being of opinion that she had no permanent residence anywhere else decided the issue of jurisdiction in her favour.

9. The provisions of S. 2 of the Act relating to or affecting jurisdiction are of a negative and exclusive character except Cl. 1 which relates to its local extent: Cl. 2 prevents the, Court from granting any relief except where the petitioner professes the Christian religion and resides in India at the time of presenting the petition.

10. Clause 3 prevents the Court from dissolving marriages except in the case of Indian marriages — or where certain specified matrimonial offences have been committed in India or where the husband has abjured the Christian for some other form of religion.

11. Clause 4 prevents the Court from making decrees of nullity except in the case of Indian marriages.

12. Section 4 confers upon the High Court and District Courts, subject to the provision of the Act, “the jurisdiction then exercised by the High Courts in respect of divorce a mensa et toro and in all other causes, suits and matters matrimonial.”

13. By Section 9 of the High Courts Act, such matrimonial jurisdiction was conferred on the High Courts as Her Majesty might by Letters Patent grant and direct, and it was provided that, save as by such Letters Patent might be otherwise directed, and without prejudice to the legislative powers of the Governor-General, the High Court in each Presidency should have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Supreme Courts.

14. The ecclesiastical jurisdiction of the Supreme Courts was limited to persons described and distinguished by the appellation of British subjects, residing in the Town and Island of Bombay and the factories subordinate thereto and all the territories dependent upon the Government of Bombay. It was held in Ardaseer Cursetjee v. Perozeboye (1) that this jurisdiction could not be exercised over Parsis.

15. By Cl. 35, Amended Letters Patent of the High Court, that decision was given effect to by limiting the jurisdiction within the Presidency to “matters matrimonial between our subjects professing the Christian religion,”

16. In Cl. 33 of his despatch of 14th May 1862, which accompanied the original Letters Patent, the Secretary of State wrote: “Her Majesty's Government are desirous of placing the Christian subjects of the Crown within the Presidency in the same position under the High Court as to matters matrimonial in general as they now are under the Supreme Court and this they believe to be effected by Cl. 35 of the Charter. But they consider it expedient that the High Court should possess in addition the power of decreeing divorce, which the Supreme Court does not possess; in other words that the High Court should have the same jurisdiction as the Court for Divorce and Matrimonial Causes in England established in virtue of 20 & 21 Vic. C. 85 “… I request that you will immediately take the subject, into your consideration and introduce into your Council a Bill for conferring upon the High Court the jurisdiction and power of the Divorce Court in England.”

17. The Indian Divorce Act of 1869 was apparently enacted as a consequence of this request. That act by s. 10-17 conferred on the Indian Courts jurisdiction to grant decrees for divorce that is dissolution subject, however to the limitations stated in S. 2. It would not apparently be necessary that both parties to a divorce petition should profess the Christian religion. Nor is this a necessity in the case of petitions for nullity provided for by Ss. 18 to 21. But as regards the jurisdiction confirmed to the High Court by S. 4 (which includes suits for restitution), the powers of the Courts are still limited to Christian subjects within the Presidency.

18. For this reason I am of opinion that the Court has no jurisdiction to grant decree for restitution either against a Parsi respondent or a respondent not within the Presidency.

19. The same result may be arrived at by another train of reasoning. S. 7 enacts that subject to the provisions contained in the Act, the High Courts and District Courts shall in all suits and proceedings hereunder act and give relief on principles 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 Matrimonial Causes in England for the time being acts and gives relief.

20. It is established by the following cases that the Court will not give relief by way of restitution if the respondent named in the petition was absent from the jurisdiction at the time the suit was instituted and remains absent although residence at date of suit of both spouses whatever the domicile is sufficient to give jurisdiction in suits of this nature: see Fire-brace v. Firebrace (2); Chichester v. Chichessor (3) and Armytage v. Armytage (4).

21. In Firebrace v. Firebrace the respondent who was absent from England at the date of the suit was an Australian. Sir James Hannen said (p. 68): “In a suit for restitution of conjugal rights the primary object is to control the husband. She asks that her husband shall in the future be compelled by the process of the Court to take her back to live with him in a common home. In other words she prays that the English law shall be put in force against him but as the obligation of a foreigner to obey the laws of this country lasts no longer than the time during which he is within its jurisdiction the tribunals of this country cannot call upon him to obey those laws after the obligation has ceased. The difficulty amounting in most cases to an impossibility of enforcing the decree of the Court in the circumstances of the present case lends additional force to the arguments against the existence of the jurisdiction.” These remarks appear to me to be applicable to the present case although Bombay may be the respondent's domicile of origin: for the matrimonial jurisdiction of the Indian Courts is in no way based upon domicile.

22. Another aspect of the question of jurisdiction may be based upon an argument suggested by the case of Thornton v. Thornton (5) in which counsel suggested that the jurisdiction of the Bombay High Court in a suit for divorce was based on Section 45 of the Divorce Act, which imported section 17 of the cpc and thus gave jurisdiction where the cause of action arose. Cotton, L.J, seems to have accepted this as the basis of the jurisdiction claimed.

23. The jurisdiction was really, I think based on the alleged residence of the petitioner in India coupled with commission of the act of adultery whilst the parties last resided together in India: see Thornton v. Edith S. Thornton (6); and this would be by virtue of Section 10 of the Divorce Act, read with Section 2. The argument however suggests that in the case of other matrimonial offences, the application of the Code of Civil Procedure will involve the necessity either of residence on the part of, the defendant or the accrual of the cause of action within the jurisdiction in order to enable the Court to entertain the suit.

24. I may add that I am by no means satisfied that the petitioner was residing in India within the meaning of S. 2 at the time of the petition. In Manning v. Manning (7) it was held that mere residence in England at the time of the institution of a suit for judicial separation is not sufficient to found the jurisdiction of the Court. The residence of the petitioner must be bona fide and not casual or as a traveller.

25. I think the Court has no jurisdiction and the petition must be dismissed.

Chandavarkar, J.:— I concur.

26. (Subsequently, the petitioner's attorney applied that the prothonotary may be directed to retain in Court the moneys paid by the respondent as security for petitioner's costs pending taxation of his costs and to pay him his taxed costs put of the money. The Chief Justice thereupon delivered the following judgment.)

Scott, C.J:— The proceedings in which this application is made were initiated by a petition for restitution of conjugal rights by Mrs. Wadia, a Christian, against Mr. Wadia, a Parsi.

27. Mr. Crawford of the firm of Crawford Brown & Co. was appointed attorney for Mrs. Wadia, and upon his application an order was made by the Chamber Judge, on 19th October 1912, for the deposit by the respondents of Rs. 600 as security for the petitioner's costs. That sum was deposited on 11th November 1912. According to the terms of the order, it was to cover the petitioner's costs already incurred and to be incurred. The order was made under the settled practice of this Court to follow, in matters relating to costs under the Divorce Act, the practice of the Divorce Courts in England.

28. The petitioner obtained an order for restitution from Macleod, J. An appeal was preferred against his decision upon which the appellant, in accordance with the rule of the Court, deposited Rs. 500 as security for the respondent's costs. The appeal was successful in that the Court held that it had no jurisdiction to award the relief prayed for to the petitioner and it declined to make any order for the payment of the respondent's costs by the petitioner having regard to the ground of the decision in the appeal.

29. Mr. Crawford, the petitioner's attorney, now applies that the Prothonotary be directed to retain the moneys in Court pending taxation of his costs and to pay to him the costs when so ascertained out of the moneys so deposited on the ground that those sums must be applied in the first instance in satisfaction of his taxed costs as it is the established rule of the Divorce Court not to deprive the wife's solicitor of his costs out of the fund intended for his payment unless he has himself done something to justify so strong a measure: see Flower v. Flower (8) and Robertson v. Robertson (9).

30. On behalf of the respondent it is contended that the solicitor, has no locus standi in the matter. That position appears to me not to be tenable having regard to the more recent decisions of the Divorce Court in England and Ireland showing that applications by solicitors with reference to their costs have repeatedly been entertained: see Joseph v. Joseph & Burnhill (10), Nairne v. Nairne (11), Ballanoe v. Ballance (12) and Jinks v. Jinks (13).

31. The next question is whether the attorney is right in contending that the money deposited must be treated, whatever the result of the petition, as a fund for his security. In Rail v. Sail (14). Lindley, L.J, said:

“The £45 ordered to be paid into Court in this case saw intended to enable Mrs. Hall to obtain legal assistance in the divorce proceedings instituted against her, and her solicitor naturally looked to this fund for his remuneration in conducting her defence. In the ordinary course of events he would have had his costs taxed and paid before the motion for a new trial came on for hearing, but the husband who paid the money into Court has caused the payment out to be delayed, and the money is still in Court. The motion for a new trial was dismissed with costs, and the husband has applied for payment of his costs of the appeal out of this £45. The money being still in Court, the High Court, and, on appeal, this Court, clearly has jurisdiction over the fund; but considering the purpose for which it was paid into Court, and the established rule that the Court will not deprive the wife's solicitor of his costs out of the fund intended for his payment, unless he has himself done something to justify so strong a measure, we do not think it right upon the present occasion to accede to the application of the husband.”

32. In Hurley v. Hurley (15), Collins, J., made the following observations with regard to the practice in the Divorce Court:

“The rule is that, whether the wife is successful or not, the husband is bound to furnish her with the means of carrying on the litigation, and the practice has been for the Registrar to estimate a reasonable amount for her costs, which is either paid in or security is given for it. If he has made an accurate estimate, so much the better for the wife; but if his estimate is found insufficient when the trial comes on, the practice is to enlarge the amount paid in by the husband, so, that the wife may continue to be in funds, and to that she is entitled although the result may be that she is divorced. The practice therefore seems to me to be that the husband is bound to furnish the estimated amount for the wife's costs entirely independent of the result. There has been an exception engrafted on that rule that, if the result of the litigation turns out to be unsuccessful for the wife—if she is found guilty—the Court refuses to enlarge the amount which has been deposited. Where that practice comes from I do not know, but it only comes into consideration when the wife has been found guilty, which is not the fact here.”

33. Upon these authorities, I think the attorney of the petitioner is justified in his contention that the fund paid in is for the benefit of her attorney and she is entitled to have it so applied whatever the result of the petition, provided, of course, that the attorney is in no; way to blame. The case of Walker v. Walker and Lawson (16) shows that the solicitor or attorney who takes up a hopeless case must not assume that his costs will be provided for. But having regard to the fact that the petitioner secured an order on her petition in the lower Court, and that the point of jurisdiction, upon which the petition was decided in appeal, does not appear to have occurred to the counsel on either side, I cannot say that in this case the attorney was to blame for taking up the case. Then, it is contended that, if the attorney is entitled to have the first sum deposited applied in payment of his taxed costs, he has not the same right in relation to the second sum of Rs. 500 as that would have been deposited in the case of any appeal. I think however that it may be safely assumed that if there had been no rule providing for a deposit of Rs. 500 by the appellant the a ttorney would have made a further application for the deposit and that application would have been granted by the lower Court or the Chamber Judge.

34. My order is that the sums of Rs. 600 and Rs. 500 be retained in Court and be paid out, so far as may be necessary, in satisfaction of the taxed costs of the petitioner's attorney, and that the balance, if any, after these costs shall have been satisfied, be paid out on the application of the respondent's attorneys.

35. I make no order as to costs of this notice, because I think that the attorney should have been more prompt in geting his costs taxed and in applying that the fund in Court should be paid out in satisfaction of those costs.

G.P/R.K

36. Order accordingly.