028-NLR-NLR-V-12-ABEYAGOONESEKERE-v.-ABEYAGOONESEKERE.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justioe,and Mr. Justice Wendt.
1909.April 6.
.ABEYAGOONESEKERE «. ABEYAGOONESEKERE.
D. C., Colombo, 26,426.
Divorce—Inability of husband to provide wife's costs—English practice—Courts Ordinance, No. 1 of 1889, s. 64.
The rule of English praotice that in a divorce case the husband is.as a general rule, liable to pay into Court, or give security for, anamount sufficient to cover the wife’s costs in connection • with thecase should be followed in Ceylon.
Silva v. Silva1 followed,
A
PPEAL by the defendant from an order of the Acting DistrictJudge (H. A. Loos, Esq.) directing him to pay Rs. 200 for
the wife’s costs in the action, and also a sum of Rs. 50 monthlyfor alimony pending the action. The facts material to the reportappear in the judgments.
Van Langenberg, for the defendant, appellant.
H. A. Jayewardene (with him Batmoantvdavx), for the plaintiff,respondent.
Cur. adv. wit.
April 5, 1909. Hutchinson C.J.—
The appellant, who is the defendant in an action brought againsthim by his wife for divorce, appeals from an interim order made inthe action directing him to pay Rs. 200 for the costs which theplaintiff has incurred and may incur in prosecuting the action, andto pay her Rs. 50 a month for alimony pending the action.
The defendant objects that the amount allowed for alimony isexcessive. I do not think so, and 1 would dismiss that part of theappeal. With regard to the order for costs, the plaintiff has swornthat the money to which she was entitled under her father’s will wasgiven to the defendant at the time of their marriage, and that shehas now no other property, and no expectation of getting any ; andthis evidence is not contradicted. Under the circumstances it wouldbe in accordance with the practice of the English Courts to makesuch an order as was made in this case—a practice established at atime when, as a rule, all the wife’s property belonged to her husband,or was under his control. But the appellant objects that theCourts of Ceylon have no power to adopt that practice. By section64 of the Courts Ordinance every District Court has jurisdiction in
1 (1905) 8 N. L. R. 280.
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C.J.
1900.matrimonial rtmtters. By section 590 of the Civil Procedure Code
Aprils.ty,e procedure generally in matrimonial cases is (subject to the
Hutchinson provisions contained in that chapter) to follow the procedure therein-
before set out with respect to ordinary civil actions. Then followsome special provisions as to procedure in suoh cases, includingpower (section 614) to the Court to order the husband to payalimony to the wife pending the action, but there is no provision foran order upon him to pay in advance or give security for a sum toprovide for the costs which his wife may incur in prosecuting ordefending the action. The appellant contends that our Code wasintended to provide in detail the whole of the procedure in theseactions, and that there is no power to adopt anything from theEnglish procedure. We must, however, follow the decision of thisCourt on the point which was given in 1905 by Pereira J. andLayard C.J. in Silva v. Silva* There.it was laid down that theEnglish rule should be followed, that the husband is, as a generalrule, liable to pay into Court or give security for an amount fixed bythe Registrar as sufficient in his judgment to cover the wife’s costsin connection with the hearing of the case.
I think, therefore, that the appeal should be dismissed with costs.Wendt J.—
' The difficulty in the way of making an order on the husband tosecure the wife’s costs arises from the absence of any express provi-sions in Chapter XLII. of the Civil Procedure Code empoweringthe Court to make such an order. That chapter, while providing forincidence of costs of particular proceedings in matrimonial actions(see sections 604, 612), gives no direction as to the general costsbetween husband and wife. I presume section 596 would makethe provisions of Chapter XXI. applicable as part of the “ procedurehereinbefore set out with respect to ordinary civil actions.” Wehave no enactment similar to the Indian Divorce Act (No. IV. of1869) which enacts that in matrimonial actions between partiesto whom the Act applies the Court shall “ act and give relief onprinciples and rules as nearly as may be conformable to the principlesand rules on which the Court for Divorce and Matrimonial Causes inEngland for the time being acts and gives relief.” So there is nodirect legislative authority for applying the English rule. Thatrule, however, if not originally founded on public policy, but on thewife’s entire lack of means, has been maintained, in later times, atleast partly on grounds of public policy. (See the case of Mayhew v.Mayhew *) This Court, in Silva v. Silva,1 thought that the Englishrule should be followed here, and I am content to acquiesce in thatruling. If the rule is applicable, the present is a, proper case forapplying it. I therefore concur in dismissing the appeal with costs.
Appeal dismissed.
8 (1905) 8 N. L. R. 280.
‘ (1894) I. L. R. 19 Bom. 293.