Elena Mary Grant vs Norman Mating Grant

Wort, J.—Had there not been one peculiar feature in this petition, a wife''s petition for a dissolution of her marriage, I should have contented myself with following the usual practice of granting a decree nisi for a dissolution of the marriage without stating my reasons, being satisfied on the evidence of the allegations in the petition, and the petition being undefended. But all the evidence has been taken in England and I propose to make one or two observations with regard to the matter. The petitioner Elena Mary Grant prays for a dissolution of the marriage on the ground of adultery with a person unknown in July 1933. It has, however, emerged from the evidence in the case that the person unknown is the Nurse Redfern who stayed in a certain hotel in England with the respondent on or about 26th July of that year, that is, 1933.

The case is a somewhat serious one having regard to the fact that not only all the witnesses for the petitioner, but the petitioner herself, have been examined on commission in England. I should have had very great hesitation in accepting this evidence of the petitioner on commission had it not been for the fact that the petitioner in this case is the wife and, therefore, presumably at the mercy of her husband so far as her means are concerned and necessarily, therefore, with regard to her opportunities to travel. I propose to follow the view taken in England with regard to evidence on commission that is, although evidence was taken de bene esse, I may assume that the petitioner is still abroad and, therefore, unable to come to this Court and give evidence on her behalf. The fact that the petitioner is the wife is a reason in my judgment why I should accept her evidence which was given on commission in England.

According to the petitioner''s case she and the respondent went to and fro from India and cohabited at various places and the last place in India where they cohabited was at Ranchi about the year 1927. I should state at this juncture that both parties are domiciled in India thus giving this Court jurisdiction in the matter.

As regards the merits of the case there is no possible doubt in my judgment that the adultery alleged by the petitioner against her husband was in fact committed sometime in July 1933. The manner in which the evidence has been given and taken in England facilitates the determination of this case. The evidence is clear that the respondent and a person now known to be Nurse Redfern stayed as husband and wife occupying the same room at the hotel at Reigate Hill. I dp not propose to mention the witnesses in detail, but their identification has been established beyond any reasonable doubt. Identity has been proved by persons who have seen the parties; identification of the photographs exhibited in the case connected by the clearest evidence identifying both'' the petitioner and the respondent before the Commissioner at the time of taking the evidence. Witnesses have sworn that the person staying with the respondent on the occasion deposed to was not the petitioner. The petitioner herself clearly identified Nurse Redfern with whom the respondent is alleged to have committed adultery. One matter is to be noticed in this connexion, and that is that the evidence established, as I have already indicated, that it was with Nurse Redfern that the adultery was committed, although the petitioner has stated that the person with whom the adultery'' was committed was unknown. No application has been made to amend the petition and, therefore, I do not propose to deal with that matter; indeed, as it has been pointed out in a case in the Calcutta High Court, there is no section in the Indian Divorce Act similar to Section 28, Matrimonial Causes Act, and, therefore, Nurse Redfern would not have been entitled to intervene.

So far as the question of desertion is concerned, I think that is also clearly established; it is established by the evidence of the petitioner and the correspondence which passed between the parties. It appears that somewhere in the summer of 1932 the respondent went to a Nursing Home to be treated for asthma and it was at that time that a letter was written by him dated in July to his wife (the petitioner) in which he quite clearly stated that he had no intention of again cohabiting with her. It is not necessary to go into the details of that letter, but as I say and repeat his intentions are there clearly stated, and from the evidence of the petitioner herself it is also clear to me that from that date not only did the respondent not cohabit with the petitioner, but he was guilty of deserting her. The adultery and the desertion having been established, the petitioner is entitled to a decree nisi. The petitioner is entitled to the custody of the three minor children Helen Rhylva Marian Grant, Douglas Wyndham Grant, and Audrea Francis Marian Grant. The petitioner is entitled to her costs.