Joseph William Carroll vs Joseph William Carroll

Wort, J.—This is the wife''s petition for dissolution of her marriage on the ground of cruelty and adultery of her husband, the respondent. Owing to a number of matters, to which I shall in a moment refer, the case has given me considerable anxiety. Had I thought any advantage would have been gained I should have reserved my judgment. As I have said, the petition is one based on cruelty and adultery.

The answer by the respondent (para. 4) alleged that the petitioner was living in adultery with one Horace Wilson and otherwise denied the allegations contained in the petition. One of the difficulties, which has arisen in this case, resulted from the procedure which the parties have thought fit to adopt. Section 7, Divorce Act of 1869 lays down that the Courts shall 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.

Two observations I might make regarding that section in this connection and that is that it is almost impossible to administer the law on principles and rules as laid down by the Divorce Court in England if the parties do not conform to the rules of procedure both under the Civil P.C., which applies to cases under the Divorce Act and to the principles and rules upon which the Court in England acts. I refer in particular on this point-para. 7 of the petition and this brings me to the other point regarding Section 7, Divorce Act. The position in India is at present anomalous. The principles and rules for the time being in the Divorce Court in England are based on the state of the law which does not obtain in India at the present date. Since 1923 a wife petitioner can obtain a dissolution of her marriage on the ground of adultery alone; whereas the law in India in this respect is the same as it was in England prior to 1923.

I mention this because in a case on one of the points with which I shall have presently to deal, Lord Merrivail of the Divorce Court in England has stated that since 1923 it would appear that the law has undergone a change, I refer not to the fact of the ground upon which a wife can now obtain a dissolution of her marriage, but I refer to the matter on the question of conduct conducive to adultery in connexion with the discretion which the Divorce Act in India as in England gives the Court either to refuse or to grant a decree to a petitioner who himself or herself is guilty of adultery. But to go back to the particular matter to which I was referring namely the parties and the Court have been placed in a very considerable difficulty by reason of the allegations contained in the petition and the manner of stating them. Para. 7 states:

The said respondent committed various acts of cruelty and desertion and adultery.

That is the only allegation so far as cruelty is concerned. Now it would be impossible to succeed on a petition of that kind in England, although as I have already stated I am enjoined by the Act to administer the law according to the principles and rules applicable in the Divorce Court in England. I asked the respondent why particulars of that allegation were not demanded. The reply was made that the parties or the petitioner would have come prepared with the set case if warning by way of an application for particulars was given.

Not only is that no excuse for not asking for particulars but indeed is the very reason why particulars are asked for so that the petitioner should be bound down to the case alleged; and according to the rules of law and practice the moment one of the witnesses departed from his or her evidence from those particulars the evidence taken would be disallowed. That puts the respondent in a position not knowing first of all, what he has got to meet and, secondly, prevent the witnesses for the petitioner from stating just what comes to their mind at the particular moment, and I can only say that whoever may be responsible for not having asked the particulars in this case in the petition he was not acting in the best interest of his client. In addition to that, the failure to adopt the correct procedure in this case has placed the burden upon the Court which, in my judgment, it ought not to bear.

Knowing that the witnesses were not in any way bound down to a statement of the case as set out in the petition, it makes it all the more incumbent on the Court to scrutinize with greatest possible care the evidence without which the petitioner in this case cannot possibly succeed.

I will refer to the evidence of cruelty. Another matter in this connexion is the allegation, which I have already stated, as contained in the answer--an allegation of adultery by the petitioner with one Wilson. It was not till after the adjournment of the case that the question arose in my mind of whether notice of answer had been served on Wilson, and as I thought I was informed at the Bar that no such notice had been served on Wilson.

That raises another difficulty in the case. It is impossible for the respondent to proceed on this allegation unless he obtained an adjournment of the case to serve the papers on Wilson and then in the presence of Wilson, if he so desired, to give the evidence which has already been given on this allegation. If the circumstances of the case are such that I come to the conclusion that no adjournment should be given, I have no other alternative but to strike out that part of the answer. The point that directly arises in this connection is this: The allegation is, as I have already repeated more than once, of adultery with one Wilson.

Now apart from that allegation, the petitioner when she went into the witness-box has confessed having committed adultery with a person but not Wilson, and in addition to that for the purpose of disposing of this point I must assume that if the evidence were given it would establish as stated by the husband respondent that the adultery had in fact been committed with one Wilson as well as the person whose name is not disclosed. I have also to decide whether, assuming that that evidence was given and I were to take it at its face value, the respondent would be entitled in the event of the petitioner failing in her petition, to a decree for dissolution of marriage based on that allegation.

I shall deal in a moment more particularly with the principles which must be applied to this matter; but to state them shortly it is quite clear that I could not grant a decree to the respondent even in the event of the petitioner failing in her petition if I was satisfied that the adultery either to which she confessed or the adultery which is alleged by the respondent was conduced to by the conduct of the respondent. I shall assume therefore, when I come to deal with this point for the purposes of this case that the case of the respondent as against the petitioner in relation to her alleged adultery with Wilson is made out. I repeat that I must assume that, for the purposes of argument But I revert for the moment to the case of the petitioner, because that question would more particularly arise if I came to the conclusion that the petitioner had not made out her case.

It is based, as I have said, on the ground of cruelty and adultery. These cases are unfortunately on the increase. More particularly for the purposes of those petitioners who might come to this Court hereafter one or two observations must be made. I have already indicated that the rules must be complied with. I would further say that this petition ought not to have been admitted in its present form unless the rules were complied with; but for the moment I want to deal more particularly with another point.

The first matter which the parties must establish before this Court or any other Court in India that can have jurisdiction is the fact of marriage. Again I have to refer to Section 7 of the Divorce Act which enjoins me to apply the practice of the English Court. In no English case does the Court act upon the oral evidence of the petitioner only to prove the factum of marriage, but it is necessary to produce a statutory certificate of the marriage. It is a practice, without exception, but I must state this that, although it has become a practice without exception, the position is such that if the circumstances warranted it, the Court would still hold that marriage had been established even in the absence of a certificate.

In other words, although the practice is universal, it is not necessarily a rule of law for the reason which is obvious and which need not be mentioned. The practice, however, is followed in all cases in England. In this case we have no such certificate as the law contemplates. We have a certificate or a document which is called a certificate, but it is not a certificate recognized by law. In this connection I must refer to Act 6 of 1886 which brought into existence the registration of births, deaths and marriages, and under 8. 23 only such certificate becomes evidence. I need not go into the provisions of the Act, but the Registrar-General keeps a Registration Book and supplies copies of certificates on application and that certificate has been made evidence by the Act of the fact of marriage.

The parties were married on the 12th of September 1917. They lived at various places and their last matrimonial residence was at Khurda Road in the Puri District. That gives jurisdiction to this Court.

It appears, and there is no evidence to the contrary, that the parties were happy in their marriage until about May 1929, when Doris Adams was introduced to the house. There was some slight controversy in the case as to whether it was the wife who introduced Doris Adams or whether it was the respondent, the husband. The matter was not pursued. I have to say that it is impossible on the evidence to definitely decide whether it is the one or the other. In any event the matter is quite immaterial by reason of the fact that it quite clearly appears from the evidence that it was by the ultimate consent of both the parties that Doris Adams came to reside with them: but unfortunately for them this was the beginning of their matrimonial troubles.

Although the respondent in the witness-box stated that his wife was extravagant, that he was always in debt, and he seems to indicate that his indebtedness was due to his wife''s conduct, yet apart from that statement there was no evidence at all of any matrimonial dispute nor was there any evidence upon which I could hold that the extravagance was due to the wife. The evidence of the petitioner was that at first, that is, in the latter weeks of May 1929, the conduct of the respondent to the petitioner was much the same as had been heretofore; but after a while his attitude to her completely changed. He neglected her for Doris Adams, and then conducted himself in such a manner towards his wife as to constitute, according to the allegations of the petitioner, legal cruelty. I will deal with that in a moment, but for the moment I content myself dealing with the general aspects of the case.

At this stage it appears that the petitioner went away to her mother-in-law for a day or so and then returned, Her evidence is that she went to consult her mother-in-law about the condition of affairs between her husband and herself. The position got so tense that by the end of June they separated. The evidence is that there was a sort of mutual agreement between the parties, that they could no longer get on and therefore, it would be wise to live apart. Indeed my view of the evidence is that, if there was any agreement by the petitioner to sign this deed of separation which was made on the 29th of June 1929, it was an agreement which was forced upon the petitioner by the conduct of the husband.

In my judgment no other view of the evidence could be taken. The mere fact that she signed or agreed to the terms of separation would in my opinion indicate only one state of affairs and that is that she had no other option. In fact she left the house some days after the 29th of June. The exact date is not material, but the early part of July I think is the evidence. Doris Adams was left in the house, and then the petitioner went to live with her brother and subsequently about April 1931, went to live under the roof of Wilson.

Now first of all I will deal with the evidence of adultery against the respondent. Prior to the hearing, an application was made to me for an adjournment of the case on the ground that one of the principal witnesses of the petitioner was absent and could not be brought here on the ground of-ill health. That witness, according to Mr. Yasin Yunus who appeared on-behalf of the petitioner, was to prove-first of all the statement made by the respondent before the priest; secondly that Doris Adams and the petitioner were living in a condition similar or equivalent to that of husband and wife.

This state of affairs necessitated an adjournment for some days at great expense and inconvenience to the parties and Mr. Saran on behalf of the respondent volunteered the information that at the trial he was not going to deny that such a statement as indicated by Mr. Yunus was made and it was not going to be denied by him that Doris Adams was living in the same house as he, the respondent; and he was prepared to admit that much but no more.

In those circumstances, the answer was amended by making these admissions, but it was clearly indicated that the admissions were only admissions of facts but not the inferences which could be drawn from them. In other words, the respondent did not admit having committed adultery with Doris Adams nor did he admit that he-was living in a state which could be described as the state of husband and wife. The answer was amended as I have stated otherwise, whatever the respondent was going to admit in the witness-box it would still be open to him to argue that there-was no case for him to answer unless such admission clearly appeared on the pleadings. It was under those circumstances that I indicated that the amendment was necessary.

I have already stated that the amendment was made. There was no evidence on behalf of the petitioner apart from the fact that Doris Adams was left in the house when she, the petitioner, left the house in the beginning of July. Mrs. Carroll made a statement in the witness-box that she went to her mother-in-law, and having stayed for a day or two she returned at 2 o''clock in the morning; she found the respondent, her husband, and Doris Adams sharing the same bed. Now that is another matter of which I have a serious cause to complain. It is a surprising complaint to make that the petitioner had in this case two or three years to think over this matter and there had never been a single suggestion in the petition of any adultery prior to September 1929. I fixed that as the date of the allegation in the petition is that for three years, to use the exact words of the petition "during the three years immediately preceding the 18th September 1932," the said respondent and Miss Doris Adams have been constantly, with few exceptions, residing together and the said Joseph Corroll, respondent, committed adultery with the said Miss Doris Adams.

To repeat myself, there was not slightest suggestion in the petition that there was any adultery prior to about September 1929 and it is an amazing statement, therefore, to make when the lady came into the witness-box. It is another indication of a danger to which I have already referred, namely, of not asking for particulars. I ruled the question and answer, out of the issue of adultery, but this is where the misfortune of the respondent comes in. As he allowed the petitioner to make the vague allegations contained in para. 7, I could not rule out the answer or the question on the question of cruelty, because, on the authorities in certain circumstances such a fact can be said to be cruelty, the circumstances being that the adultery was being committed under what I may describe the matrimonial roof. Had the respondent been advised to adopt the proper methods and ask for particulars, the question would have been impossible under any circumstances and would have had to be ruled out; but I say and repeat that I admitted it on the issue of cruelty.

I come then to a matter with which I was dealing, namely, the evidence that has been produced in the case on the question of adultery of the respondent. There was this admission made by the respondent. Now what does it amount to? He denies the inference which the petitioner asks the Court to draw. He denies, in other words, that his is a statement of fact constituting evidence of adultery or that one could infer from the facts that adultery had been committed by him. The child which I have referred to was born about the 16th September 1930. Some days or weeks afterwards the respondent went before the priest and then stated to priest when asked that he was the father of the child.

The most significant answer was given by the respondent in answer to a question by Mr. Yunus, and the answer was this: that he had made up his mind to State that he

was the father at the time or about the time of the birth of the child. I am not using the witness''s words, but I am giving the substance of his statement. He was then asked in cross-examination why he stated that he was the child''s father, if as he now suggested he was not. The witness went into what he considered to be an explanation which could be nothing more than a statement or reiteration of the facts and circumstances under which Doris Adams was brought to the house of the parties. That obviously was no explanation. He never stated who was the father of the child if he was not.

He contented himself, if one is to take the spirit of his evidence and not the letter, by stating that it was out of philanthropy that he consented to name himself the father of the child in the absence of any other. Now in addition to that there is the statement by himself that Doris Adams was from about September 1929 living right up to the date of the hearing of this case under the same roof with him, the respondent. The evidence is not quite clear as to what happened between the early part of July and September 1929, excepting that the lady went to various places in India and in some instances she was accompanied by the respondent. But whatever be the facts relating to that period between July and September, the fact does remain, as admitted by the respondent, that Doris Adams was living under his roof.

He makes no explanation as to why she is living there, and the only question which I have to consider is whether that evidence plus the statement which was made by the respondent to the priest can be said to amount to evidence of adultery, or in other words, whether I can draw the inference from those facts that he has committed adultery. A confession or admission by one of the parties in a matrimonial suit has got to be taken with great caution. It may be accepted as evidence of adultery without corroboration only in the most exceptional cases. In other words, usually the Court must demand corroboration of such an admission or confession. But if I am satisfied that there is no collusion in this case, there is nothing to prevent me in law from acting upon what in substance is a confession by one of the parties.

There is sufficient authority for that proposition on Williams v. Williams and Padfield, (1865) 1 P 29. Now I am quite satisfied in this case that there was no collusion between the parties and I am also satisfied from the statement made by the respondent himself in the witness-box and from the facts proved that I can draw one inference only and that is that the respondent is in fact guilty of adultery with Doris Adams. Now comes the much more difficult point--whether the petitioner had made out her case on the ground of cruelty. One of the leading oases in recent years in the English Courts in this connection is undoubtedly the case of Russell v. Russell, (1897) AC 895. It must be remembered, however, that this case was decided in the House of Lords, that first of all three Lords dissented and, secondly, that it was a case of a husband claiming judicial separation on the ground of cruelty of the wife.

But there are one or two observations which may be referred to as assisting me in coming to the conclusion as to whether in this case the petitioner has established legal cruelty. In referring to 3 Paterson v. Paterson, (1850) 3 HLC 308, Lord Halsbury L.C., in his speech states:

The principle of law that he lays down must be applied to the state of facts which he rightly or wrongly assumed to be proved, and nothing can be more emphatic than this negation of the proposition that personal violence, either threatened or inflicted, is an essential condition of the relief claimed by the petitioning spouse.

I have to read that observation, however, of the Lord Chancellor in the light of the fact that he dissented from the proposition that the cruelty alleged had been made out. But a reference to the speech of Lord Herschell in this connection is of some assistance:

(Speaking of the Matrimonial Courts). "It can only act and give relief on principles and rules as nearly as may be conformable to the ''principles and rules'' on which the Ecclesiastical Courts had ''theretofore acted and given relief.'' But the principle or rule that a judicial separation can only be granted on the ground of cruelty where there has been injury to body or health, or the reasonable apprehension of it, has been frequently recognized and acted upon since 1858."

Then reference is made to what undoubtedly is the leading case on the question of cruelty, being Evans v. Evans, (1790) 1 Hag Con 35. But in referring to the direction given to the jury by a question in Tomkins v. Tomkins, (1851) 1 Sw & Tr 168, that learned Judge in relying on a Statement of Lord Stowell in the case of Evans v. Evans, (1790) 1 Hag Con 35 made this statement:

There must however be bodily hurt-not trifling or temporary pain; or a reasonable apprehension of bodily hurt.

I must add in this connection, as Lord Herschell points out in his speech in the House of Lords in the case of Russell v. Russell, (1897) AC 895, to which I have referred, that these authorities on cruelty can be read in the light of the facts of particular cases. It cannot be said to lay down any rule which could be applicable to every possible case which might come before the Courts, but the reference is to the passages--one in the leading judgment and the other in the dissenting judgment to which I have referred for the purposes of indicating that although cruelty in its popular sense is undoubtedly a ground for divorce, yet the cases in which cruelty can be held to have taken place is not confined to that class of case which I have described as cruelty in the popular sense. The passages which I have mentioned refer to a reasonable apprehension of bodily cruelty.

In other words, there may be a case of cruelty in which either bodily injury has occurred or there may be those cases in which the evidence is such as to entitle the Court to infer that there was a reasonable apprehension on the part of the person alleging the facts that bodily injury would result. Now with a somewhat meagre statement of this very wide subject I go to the evidence in this case.

The evidence which was given by the petitioner amounts to this: that after Doris Adams came to the house, or after some short period after she came to the house, the attitude of the respondent completely changed. He began to neglect his wife; he began to take from her the direction of servants; he took from her the care of the household purse. I am using my own expression that he began to pay attention to Doris Adams; that he told her, the petitioner, that she was to get out of the house and that unless she did it he would kill her and on another occasion he threatened to push her teeth down her throat and made similar statements.

Now up to or during the period prior to her leaving the house her mother-in-law, Mrs. Carroll, came and she gives evidence not on all those points but as regards some. She first of all says that her daughter-in-law made certain statements to her. She then said that the respondent bad told her that he no longer loved his wife and she could not stay with him any longer. She states that he said on one occasion: "If you do not go away I will starve you go on leave, close the door and you stay there" There was some evidence also of the complaint made by the petitioner to Mrs. Carroll, her mother-in-law. She at a later stage in her evidence had repeated the evidence which she gave in her examination-in-chief that the respondent said that he would starve her and that he would lock the door of the house and make her sit on the door and so on. It is of course clear that in a case of cruelty it is necessary to have corroboration of the evidence of the petitioner and that is sufficiently indicated by the case of Judd v. Judd, (1907) P 241.

Now my difficulty in this case is to first of all ascertain whether the evidence which the petitioner has given is the evidence of cruelty, and secondly, whether in any material respect it has been corroborated. First of all as to petitioner''s evidence, it is quite clear that at this time she was to have a child. Exactly how long she had been enciente, I cannot say; the evidence is not clear but that she was in this condition is not disputed. I have to take her evidence in connection with the circumstances. I have already stated that up to the time that Doris Adams came to the house, the parties were apparently on reasonably good terms. There is no evidence to the contrary. Now something must have happened between the middle of May and June of 1929 for her to leave the house in the manner in which she did. I can only come to the conclusion that it was the conduct of the respondent.

Now in her condition can I possibly come to the conclusion that there was a reasonable apprehension of bodily harm within the statement of the law to which I have referred in the cases of Russell v. Russell, (1897) AC 895 and Evans v. Evans, (1790) 1 Hag Con 35? After a very careful consideration of the matter I have come to the conclusion that I am forced to the view that the acts and words of the petitioner do amount to legal cruelty in the circumstances of the case. That being so, I have to see whether there is any corroboration of the petitioner''s evidence. So far as Mrs. Carroll senior is concerned, I must confess that my view of her evidence is that it is very meagre but it does give some indication as to what the petitioner is saying is true and that is what I have to be satisfied with. But strangely enough corroboration in this case on one particular point comes from the respondent himself.

He does not remember the exact words, but when the question was put to him by Mr. Yunus he does say that he does remember something having been said about his pushing the teeth of the petitioner down her throat. That I think is sufficient corroboration again of the fact that the petitioner is speaking the truth and that in fact the petitioner has made out her case on this ground. I cannot part with this part of the case without saying that the matter has caused me considerable anxiety, and I think my burden has been increased and the respondent''s case made the more difficult because particulars of this alleged cruelty were not asked.

The evidence was to a large extent in consequence vague. I am not sure the witnesses themselves knew to what points they would be addressing their evidence and as will be seen from some of the statements I have already made they were allowed to refer to matters under which only on one point alone could the evidence be admissible.

Now, that being so, I have to consider the other two very serious questions. This is a case in which the petitioner has made out her case. I hold that she has admitted having committed adultery. She says that she committed adultery with a man who is dead and whose name she does not want to disclose. I did not force her to disclose it because the name is quite immaterial for this purpose. The respondent is seeking no relief against the deceased and it is merely an admission which the lady ought to have made to her lawyers at the first possible moment. She has stated that she had not confessed this matter to her lawyers because she thought it was unnecessary.

Her legal advisers discovered this state of affairs only after referring to the proceedings before the Allahabad High Court, the papers of which came into their hands at a late date. But the fact that she did not disclose it before she went into the witness-box does not preclude me from exercising my discretion in her favour, if otherwise I think I ought. In this connection there are three questions which arise. First of all, whether I should exercise discretion in her favour having regard to her confessed adultery; secondly, whether I should grant her a decree having regard to the fact that there has been some considerable delay, and, thirdly, whether I should ac-cede to the respondent''s request to adjourn the hearing of the case in order to enable him to adduce his evidence on the allegation of adultery against the petitioner with one Wilson. I mentioned this matter in the earlier part of my judgment and I must refer to it again in more detail, and the position so far as this last and third point is concerned is this that no adjournment will be of any avail to the respondent if I decided that the petitioner''s adultery was in any way induced or conduced by the action of the respondent. Now in this connection the Divorce Act of 1869 uses substantially the same words as the Matrimonial Causes Act 1857 and I repeat that it has been repealed and incorporated in the Judicature Act of 1925. They are these:

Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition, or of such wilful neglect or misconduct towards the other party as has conduced to the adultery.

I must repeat again that it is clear to me on the evidence that the wife would not have left the husband had it not been for his conduct. It is clearly also on the evidence that the petitioner was chaste certainly during 1929, right through 1930 and probably the first month or two of 1931. The child, who was born in December 1931 or January, 1932, could not have been conceived of course much before March or April of 1931 at the very earliest. It was about that time that she went to live with Wilson, or to use the expression which perhaps is a little less ambiguous, went to live in the house where Wilson was living. It was in 1932 about February that the respondent ceased to pay the allowance which he had undertaken to pay under the separation deed, and it is argued by the learned Advocate on behalf of the respondent that as the respondent had supplied his wife with means of living he cannot be said to have in any way conduced to the adultery to which the wife confesses.

This question with which I have to deal was dealt with in two cases amongst many others which are now looked upon as leading cases. One was the case of Symons v. Symons, (1897) P 167 and another the case of Constantinidi v. Constantinidl, (1903) P. Sir Francis Jeune, then President of the Divorce Court made this statement in the course of his judgment in Constantinidi v. Constantinidl, (1903) P, in which he had considered the previous authorities:

I think therefore one can find guidance only by reference to general principles of justice in regard to this matter seem to me clearer than these: first, that a petitioner who has been convicted of adultery should, not be allowed to obtain a divorce if such adultery in any serious degree contributed to the misconduct of the respondent; and, secondly, that a respondent should not be allowed to avoid the consequences of proved misconduct by putting forward an act or acts of misconduct on the part of the petitioner for which the respondent was, himself or herself, in any serious degree responsible.

The latter part of the observation of Sir Francis Jeune is relevant so far as the point that I have to determine is concerned that the respondent should not be allowed to avoid the consequences of proved misconduct by putting forward an act or acts of misconduct on the part of the petitioner for which the respondent was, himself or herself, in any serious degree responsible.

It is not a question of whether by the conduct of the respondent the petitioner was forced to commit adultery, but whether the conduct of the respondent conduced to the misconduct of the petitioner. I have no hesitation in coming to the conclusion in this case that it was the conduct of the respondent in forcing in the way that I have indicated, the petitioner, wife, to leave the home that has conduced to the adultery to which she has confessed. Now once having come to that conclusion, of course, it is obvious that no advantage is to be gained by allowing the respondent to have an adjournment of this case to serve the papers on Wilson and attempt to prove the misconduct of the petitioner with Wilson, because I am assuming the misconduct of the petitioner but not with Wilson for the purposes of this argument and this point alone is established; but as I have decided and as I must repeat that that misconduct was induced or conduced by the action of the respondent, even if the procedure which is suggested were adopted he could not possibly succeed in the case. Now the only other matter that I have to decide is whether there has been undue or unreasonable delay.

It is a surprising matter, especially regarding the evidence which was given by the petitioner, that she did not bring this proceeding long before. According to her evidence in the witness. box, which if I take at its face value, I should have to hold that the respondent; had committed adultery before June 1929, and in regard to that it seems almost incredible to say, as Mr. Yunus has said, that the petitioner was waiting for definite evidence of adultery against her husband. It must not be thought for a moment that I am holding that adultery was committed by the respondent in June 1929. I am merely dealing with the point which Mr. Yunus has urged and the question relating to the knowledge of the petitioner.

It must be remembered, however, that a delay on the part of the petitioner and the delay on the part of the husband may be two different things. The wife has certainly got no excuse here that she got merely evidence of adultery alone, because the fact and circumstances which constitute legal cruelty had already taken place prior to or about June 1929. In September 1930, Doris Adam''s child was born of which the respondent was the father. Mr. Yunus says that there was no definite or final evidence of adultery with the petitioner till December 1930 or January 1931. The date of her knowledge is not quite certain on the evidence, but the date at which the child was born to Doris Adams is certain. Within the first half of 1932 she was defending the proceedings taken in the Allahabad High Court after which she commenced proceedings in this Court in October 1932. It is thus approximately a delay of three years.

I have on this point to take, as I had in the other to take, number of questions into consideration. In Tickner v. Tickner, (1924) P 118 which was a case on the question of discretion u/s 31 of the Matrimonial Causes Act, which is the same in this connection as Section 14 of the Indian Divorce Act, the President of the Court, then Sir H.E. Duke, made this statement:

The present petitioner was and remains a woman grievously wronged. What I have really to determine is whether on grounds of public policy, and by way of example, she ought to be left under a disability to contract a new marriage until she is not free by the death of the respondent. To apply the test stated in Constantinidi v. Constantinidi, (1903) P, I do not think virtue and morality will be promoted by a decision having that effect.

This discussion of the principle which refers more particularly to the discretion to be exercised in the case of a petitioner who has been found guilty of adultery, is not irrelevant in considering the question whether the delay, which undoubtedly exists in this case, should be condoned by the Court. I feel that in the circumstances of the case the delay is not unreasonable and I therefore hold that neither on the ground of delay nor on the ground of admitted adultery of the petitioner must she be refused the decree nisi which she otherwise is in the circumstances entitled to.

I therefore pronounce a decree nisi for dissolution of marriage of the petitioner and the respondent.

There remains the question of the custody of the children. In the circumstances I give the custody of the children to the wife.

The wife is entitled to the costs but only the costs in the circumstances which have been provided for by the order of security for costs which I made in interlocutory stages of the proceedings.