Errol Norman Bennett vs Ruby Violet Bennett

Mitter, J.—This is a wife's application for stay of the husband's petition for divorce and for an order that the cause do proceed on the prayers in the answer.

It appears that in March, 1945, the husband filed his petition for dissolution of marriage on the ground of his wife's adultery. By her answer, the Applicant denied the charge of adultery and charged the husband with cruelty and adultery and prayed that her marriage be dissolved. The answer was subsequently amended by an order of this Court dated December 2, 1949 and the Applicant pleaded that the husband had contracted a bigamous marriage with one Theresa Jean Margaret Patterson and that, as a result of that union, the said woman was delivered of a daughter, of which the Applicant's husband was the father It appears further that, since the institution of the said suit in March, 1945, the husband has taken no steps to prosecute it. In January, 1950, the Applicant's solicitors wrote to the Petitioner husband, enquiring if he intended to proceed with the suit further. So far, the husband has not chosen to answer this letter.

The English practice appears to be that where a Petitioner neglects to proceed with his petition and a Respondent, who has filed an answer containing counter-charges and claiming relief, desires to proceed on the answer, the latter may ask that the proceedings arising from the prayer of the petition be stayed and that the cause proceed on the prayer in the answer. (See pp. 597 and 598 Latey's Law and Practice in Divorce and Matrimonial Causes, 13th Ed.) It also appears that the cause would then proceed on the answer as an undefended case. This practice appears to have been evolved in order to avoid the consequence of the dismissal of a petition, for, the dismissal of a petition would carry with it the answer and any issues raised therein.

Mr. Surita has cited Volkers v. Volkers (Wingate cited) (1935) P. 33, as an authority in support of the prayer before me. In this case the learned President, after reviewing certain cases, observed:

It should be known by all concerned that in future the proper order, in cases where the Respondent has a cross-prayer which it is intended to pursue and the Petitioner has decided not to prosecute the suit, is to stay the proceedings on the petition but not to dismiss it. In substance the result in such circumstances will be that the Petitioner will not be allowed to proceed on his petition except by leave and when the matter is brought before the Court the petition and the cross-prayer can be determined together by the Judge at the trial of the suit.

It follows then that in cases where there is want of prosecution of the petition and the answer opposes the relief sought by the Petitioner by alleging counter-charges and claiming cross-relief, the practice is to stay the petition, thus keeping alive its framework. This will enable the Respondent to proceed to trial on the prayer in the answer with any consequential relief to which he or she may be entitled.

There being no express provisions either in the Indian Divorce Act or in the CPC touching the procedure to be followed in a case such as this, I can, by virtue of Section 7 of the Indian Divorce Act and give relief on principles and rules on which the Court in England acts and gives relief. In these circumstances, I order that the proceedings arising from the prayers of the petition for the dissolution of marriage be stayed and that the cause do proceed on the prayers in the answer. The husband must pay the costs of this application. Certified for counsel.