ETHEL ADA BROWN Vs. CHARLES EARNEST BROWN

JUDGEMENT

(1.) This is a court-fee matter which has been referred to me as Taxing Judge. The question is, what is the court-fee payable upon a petition for dissolution of marriage under the Indian and Colonial Divorce Jurisdiction Act, 1926, and 1940? In the present case a court-fee of Rs. 3-12-0 only has been paid under Schedule II, Art. 1(d), Court-fees Act as on an application or petition presented to a High Court. The Stamp Reporter, however, took the view that court-fees should be paid under Schedule II, Art. 20 which provides a court-fee of Rs. 80 in every petition under the Indian Divorce Act, except petitions under Section 44 of the same Act and every memorandum of appeal or cross-objection under Section 55 of the same Act. He concedes that that Art. can only be applied by analogy, as no direct provision has been made in the Court-fees Act with regard to petitions under the Indian and Colonial Divorce Jurisdiction Act but he relies upon the fact that Section 1(4), Indian and Colonial Divorce Jurisdiction Act, 1926, provides that: Proceedings before a High Court in India in exercise of the jurisdiction conferred by this Act shall be conducted in accordance with rules made by the Secretary of State in Council of India with the concurrence of the Lord Chancellor.

(2.) The rules made under this provision, published in the Gazette of India, dated 26 August 1927, provide in Rule 24 that subject to the provisions of these rules all proceedings under the Act between party and party shall be regulated by the Indian Divorce Act and the rules made thereunder and provide in Rule 22 that proceedings relating to alimony, maintenance, custody of children and to the payment, application or settlement of damages assessed by the Court shall be conducted in accordance with the provisions of the Indian Divorce Act, 1869, and of the rules made thereunder.

(3.) In the alternative, the Stamp Reporter suggested that the court-fee should be charged under the residuary article, Art. 17(vi), Schedule II, Court-fees Act, which provides for "every other suit where it is not possible to estimate at a money value the subject-matter in dispute, and which is not otherwise provided by this Act."