JUDGMENT

Ameer Ali, J. - This was a wife's petition for dissolution of her marriage on the ground of the respondent's cruelty and adultery. A commission was taken out to examine witnesses in England, and the result of their evidence is that the petitioner is satisfied that the charge of adultery brought by her against the husband was wholly unfounded. She therefore applied to withdraw the suit, and by consent an order was made to that effect on the 2nd September instant. I, however, reserved for consideration the question of the principle on which the petitioner's costs to be paid by the respondent should be taxed. On her side it has been argued that the costs should be taxed as between attorney and client. On the respondent's side it has been urged that they should be taxed as between party and party. So far as can be gathered from the reports this is the first case in which the question has been expressly raised in this country, and as it involves a principle of some importance it is necessary that it should be carefully and fully considered.

2. The Indian cases cited at the bar do not afford much assistance. In the case before MACPHERSON, J., in P. v. P. (1872) 9 B. L.R. Ap. 6 the prayer was that the petitioner, who was the attorney for the wife, should have his costs taxed as between attorney and client. The learned Judge, after dealing with the facts and circumstances of the case, made the following order:

3. " Therefore, although I shall order the petitioner's costs to be taxed and to be paid by the respondent to her attorney (he being substantially entitled to such an order), her attorney must personally bear his own costs of this application. The petitioner's costs will be taxed on scale 2."

4. There is in the ordering part no reference to the prayer in the petition that the costs should be taxed as between attorney and client. The inference is that that portion of the prayer was not acceded to.

5. In Natall v. Natall (1885) ILR 9 Mad. 12, it was directed that the costs of the wife should be taxed as between attorney and client, but it does not appear that the point was argued or considered.

6. The Indian Divorce Act (section 7) provides :" That 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."

7. Section 35 deals with the question of costs, but does not lay down any rule regarding the mode in which the costs of the wife should be taxed. Section 45 declares that "subject to the provisions herein, contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure."

8. Under these circumstances I must, having regard to the provisions of Section 7 of the Act, look for guidance to the English cases.

9. Mr. Garth for the petitioner has contended that as the husband has to pay the wife's costs, it follows that he must pay what she is liable for to her attorney, and he has referred to Robertson v. Robertson (1881) L. R. 6 P. D. 119. This was an appeal from the judgment of the Divorce Court, and one of the questions raised was whether the costs of the wife payable by the husband were not to exceed the amount paid into Court or secured by him. It was held that such costs were not limited to the amount paid into Court or secured by the husband, and the conclusion come to is thus expressed by the Master of the Rolls at p. 123:

10. " It appears to me, therefore, that when the defence is fairly and reasonably conducted the solicitor ought to be paid in full his costs, that is his costs properly incurred."

11. In Otway v. Otway (1888) L. R. 13 P. D. 141 a similar question came up for consideration. In that case the wife was found guilty of adultery, and the que