P L D 1957 (W (PLP)

SHABIR AHMAD, J.

Mrs. M. A. Palmer brought a suit for dissolution of her marriage with, or in the alternative judicial separation from, her husband Mr. O. R. J. Palmer, and put in the present petition for being granted alimony pendente lite and for an order to her husband to provide her funds for the costs of her suit. The petition was resisted by the respondent on various grounds. After hearing the learned counsel for the parties, I passed an order on the 19th of November 1956, to the following effect :- "(1) The petitioner will give Rs. 60 per month as alimony pendente lite from the 1st of November 1956 to the date of the decision and the money will be deposited by the 10th of each month in this Court. "(2) The respondent will pay Rs. 49-8-0 to the petitioner for expenses already incurred by her in connection with the petition of which expenses the details are given in the application dated 5th November 1956. "(3) The respondent will pay Rs. 165 as fee of petitioner's counsel to date and will deposit Rs. 330 with the Deputy Registrar of this Court for counsel's fee. The counsel for the petitioner will be entitled to get Rs. 55 for each hearing. "(4) The respondent will deposit Rs. 300 with the Deputy Registrar of this Court for expenses of the witnesses of the petitioner. "(5) The respondent will deposit Rs. 500 with the Deputy Registrar as security for costs of the petitioner ". It was directed that the money mentioned above was to be deposited with the Deputy Registrar of this Court by the, 1st of December 1956, and I mentioned that the reasons for the above order would be recorded by me later. I now proceed to give the reasons for the above order. With regard to the alimony pendente lite claimed by the petitioner, the law applicable. is contained in section 36 of the Divorce Act which enacts, inter alia that in any suit under the Act, whether instituted by the husband or the wife and whether or not the wife has obtained an order of protection, the wife may present a petition for alimony pending the suit, and the Court may make such order on the husband for pay ment to the wife of the alimony as it may deem just, subject to the condition that the alimony thus allowed shall, in no case, exceed 1/5th of the husband's average nett income for the three years next preceding the date of the order, and shall continue in the case of a decree for dis solution of marriage or nullity of marriage until the decree is made absolute or is confirmed, as the case may be. The main ground on which the prayer for grant of alimony pending the suit was resisted by the respondent, was that the petitioner in addition to having committed adultery and been guilty of desertion, had money of her own. It was contended by the learned counsel for the respondent that if the Court were satisfied that the wife, who applies for alimony pendente lite, had been guilty of adultery or desertion, the Court could not, or at least should not, grant her maintenance pending the disposal of the petition, but with this contention I find myself unable to agree. The section empowers the Court to grant alimony pendente lite even if the petition is by the husband, and as the petition for dissolution of marriage by the husband may allege adultery it is obvious that the misconduct of the wife was not intended by the legislature to be a sufficient ground to A disentitle her from claiming alimony pendente lite. On the second of the above-mentioned contentions of the learned counsel for the respondent, he is also not on firm ground. It is true that the petitioner has been working for some time as a teacher, but from her statement which I recorded on the 13th of November 1956, it is clear that she has been out of work for some time and has no money with her with which to support herself. This statement of the petitioner was not controverted by the respondent by coming into the witness-box though he did put in an affidavit on the 19th of November 1956, in which he said inter alia, that the petitioner was in a position to work and maintain herself and had some funds in her possession. In view of the fact that the petitioner had made a statement in Court and subjected herself to cross-examination, the better course for the respondent would have been to enter into the witness -box to controvert her statement, but even if that omission of his be overlooked and his affidavit considered as the evidence produced by him in rebuttal of the statement of the petitioner made on the 13th of November 1956, I am of the view that the statement of the petitioner represents the truth with regard to her present financial position. I find, therefore, that the petitioner is entitled to an order for alimony pending the suit. During arguments, the learned counsel for the parties were not agreed as to what the nett income of the respondent for the last three years next preceding the 1st of November 1956 was, and taking the figure mentioned by the learned counsel for the respondent as the correct one, I grant the petitioner a sum of Rs. 60 per mensem as alimony pending the suit. This money will be payable from the 1st of November 1956, on which date the notice was served on the respondent and will continue to be payable till the suit for dissolution instituted by the petitioner has been disposed of. With regard to the expenses incurred and to be incurred by the petitioner in the prosecution of her suit for dissolution of her marriage, the claim of the petitioner is based on section 7 of the Divorce Act, which is in the following terms :- " Subject to the provisions contained in this 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: Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded ". There is no provision in the Divorce Act authorising as Court before which a suit for dissolution of marriage if pending to order payment by the husband of expenses on the litigation which have already been incurred or those which may be incurred in future, but the learned counsel for the petitioner relied on the rules applicable in England He drew my attention to rule 4 (3) and rule 74 (2) and (3) of the English Matrimonial Causes Rules, 1937, which authorises a Court to order the husband to pay expenses of the kind claimed by the petitioner in the present case. In addition, he cited Nattal v. Nattal (I L R 9 Mad. 12) and LP. G. Mayhew v. Sarah Anna Mayhew (I L R 19 Bom. 293) the former of which lends full support to his contention and the latter supports a part of it. The learned counsel for the respondent did nest cite any authority which had laid down anything contrary to what had been laid down by the two authorities cited by the learned counsel for the petitioner, and as I am of the view that the Court has power to make the husband liable for the expenses of the petition, I pass the order detailed above with regard to the expenses. A.H. Order accordingly.