080-NLR-NLR-V-28-JOSEPH-v.-ALEXANDER-ELIZABETH.pdf
( 411 )
Present; Schneider J, and Jayew&rdene A.J.
i
JOSEPH v. ALEXANDER ELIZABETH.
18$—I). C. (Inty.y Chilaw, 7,548.
..I
fiieorce—lVife{ possessed of property—for costs—Appeal—Security forcosts., •
Where, in an action for divorce, the wife is possessed of property andis in a position to find the means to'defend the fiction, the Court shouldnot order the husband to provide for her costs.
Where, in such a case, the wife appeals, she is not bound to give• security for the husband's costs.
A
PPEAL,from an order of the District Judge of Chilaw. Thiswas an action brought by the plaintiff against his wife, the
defendant, for dissolution of their marriage. The defendant madean application to the District Court that the plaintiff be ordered todeposit a sufficient sum of money for her costs before she wascalled upon to file^ answer.
The learned District Judge refused the application on twogrounds, viz., (1) that the plaintiff was not in a position to financehis wife, (2) that the defendant was possessed of means to defendthe action.
Balasingham, for defendant, appellant.
Croos-Da Brerat for plaintiff, respondent.
January 27, 1925. Schneider J[.—
A preliminary objection was raised to the hearing of this appeal.It was objected-that the appellant had hot' given security for therespondent's costs. The appellant is the wife of the plaintiff-respondent. She made an application in the lower Court thatthe; plaintiff, her husband, be ordered to deposit a sufficient sum ofmoney for her costs in this case, before she was called upon to fileanswer. This application was considered by the District Judge,who by his Order of October 30, 1924, disallowed the first defendant'sapplication. The District Judge gave two reasons for his order:the first, that the plaintiff is not in a position to finance his wife'sdefence; secondly, that the first defendant is possessed of propertyby means of which she might obtain the necessary funds for herdefence. As regards the preliminary objection I find myselfunable tto sustain it, for the simple reason that, as a general rule, ina divorce action a husband must find the means for the wife main-taining the action on her defence. Accordingly, a Court in these
( 412 )
4985
&omnfiiDK&
A.OJ.
Joseph v.AlexanderElisabeth
proceedings could not insist upon the wife giving security for thehusband’s costs in appeal. It seems to me that the District Judgewas right in disallowing the application of the first defendant-appellant. The principle that a husband should find the moneyfor the wife maintaining or defending an action is founded on theassumption that all the property is in the hands of the husband.The evidence in this case discloses that the wife is possessed ofproperty in her own right, and that she is in a position to find themeans to defend the action brought against her by her husband.There is also the further fact that the plaintiff, her husband, isnot in a position to find the money for his wife’s defence.
I would, therefore, dismiss the appeal.
JaVbWardsvb A.J.—I agree.
Appeal, dismissed.