Mrs. V.J. Abbotsford vs Mr. K.J. Abbotsford and Others

Courtney-Terrell, C.J.—This is an application u/s 17, Divorce Act, for the making absolute of a decree nisi granted by the District Judge of Shahabad on the petition of a Mr. K.J. Abbotsford for a divorce from his wife, Mrs. V.J. Abbotsford. The petitioner is an employee on the East Indian Railway. The petition with which we are dealing was brought as a counter petition to the proceedings having been started on 20th January 1931 by the wife who petitioned the Court for divorce. The husband on 22nd February 1931 appeared to the wife''s petition and asked for a month''s adjournment and on 20th March 1931 he filed a written statement which was subsequently amended -and himself cross-petitioned for divorce. He made at that time allegations though not in a very specific form against the person who has since been made a co-respondent, a Mr. W.H. Asling who is also a railway employee.

He stated in the petition which was originally launched by him that his wife and he lived together until July 1926. He then stated that his wife voluntarily left him and began to stay with the co-respondent at Gaya, that during his absence at Jamalpur in camp in February 1927 that he suspected adultery and that in fact as a result of the adultery one or two children had been born and one of them was still living with the co-respondent. He stated at that date that he had not been able to gather any further fact and would not be able to gather them until after inquiry. The vagueness of the petition led the representatives of the wife to apply for further particulars and for an order that Mr. Asling should be named as co-respondent.

As a result of this on 8th May 1931 Mr. Asling was made a corespondent and a written statement was amended. It was amended to include a specific statement that the wife and Asling were living in adultery and that two children had been born one of whom was still alive and living with the wife and the co-respondent and that the wife had been living in adultery since she left the husband''s place in January of 1927 and furthermore that the child who was alleged to be living was of the age of two or three years, and as to the child who had been born earlier and was now dead the husband alleged that he was unable to give further particulars. On the same date it was ordered by the Judge that the issues should be defined and as to any evidence concerning the birth of the alleged two children no evidence should be given unless the husband could furnish beforehand particulars concerning the birth of those children.

He did not in fact ever give any further particulars.

When the petition came on for hearing the wife was absent. The learned Judge proceeded to hear the husband''s petition ex parte and refused an application by the wife for an adjournment. Into the merits of his order upon that point it is not necessary, having regard to our decision on the main point in the case, to enter. The husband gave evidence in support of his petition and the evidence such as it is entirely fails to establish the allegation of adultery made by him in his written statement and counter-petition. First of all I may notice that he gave no direct evidence of the marriage. We have been informed by the learned advocate on behalf of the wife that he himself did file the certificate of marriage.

Nevertheless the onus of proof of the marriage was upon the husband who was seeking a divorce and whose petition was being heard, and unless such proof of the marriage were forthcoming in strict form the Court had no jurisdiction to enter into the matter of divorce. Nevertheless the evidence proceeded and the husband stated, evidently dealing first with the wife''s petition for divorce against him, that he never in fact treated her cruelly. He stated that she left him in February 1927 while he was in camp at Jamalpur and since then he had not seen her but she had been living with the corespondent.

The record of the evidence states that the witness then stated that he "understood" that she was now living with him as husband and wife. Needless to say this statement should not have been recorded and it is not evidence. Practically the whole of the rest of the husband''s, evidence with one exception which I shall mention in a moment is occupied with an attempt to refute the allegations which his wife had made against him of cruelty in her petition. He concludes his evidence however by stating that since August 1930 he had kept a woman as his mistress and that they had been obliged to live together not in railway quarters but in a house outside, it being the rule of the railway company that a man may not keep a mistress in quarters provided by them. This concludes his evidence and there is no proof by him of anything in the nature of adultery on the part of the wife. (After considering other evidence, his Lordship proceeded).

I have summarised the entire evidence given on behalf of the husband and it is perfectly clear that no adultery is established by that evidence. The difficulty has I think arisen owing to the fact that the Court and the advocates for the husband were dealing with a branch of law which to them was unfamiliar and furthermore the learned District Judge had apparently quite forgotten, in the absence of any representative of the wife who might possibly have reminded him of the fact, that evidence connected with the alleged birth of illegitimate children was by reason of the order made by his predecessor excluded from consideration the husband not having given any particulars before the case went to trial.

This case I think illustrates--I speak for myself only--the unfortunate state of law which throws upon the ordinary tribunals the duty of investigating what is a very technical matter of law of which by the very nature of things they can have very few cases coming before them. It is perfectly clear that the decree nisi pronounced by the learned Judge cannot be supported and the intervention of the wife and the co-respondent was entirely justified. I would therefore set aside the decree nisi pronounced by the learned District Judge and direct that the husband pay the costs of the wife and of the co-respondent.

Miscellaneous Appeal No. 33 of 1933 against the order of the District Judge refusing to set aside the ex parte decree or to set aside the order of dismissal for default of the wife''s petition is withdrawn by the learned Advocate on her behalf and no order is necessary.

Wort, J.

I entirely agree. I wish to make one or two brief observations. Had the learned Judge considered the position in which he was placed as a Judge of a matrimonial cause I venture to think that the difficulties which have arisen in this case would not have arisen. Had the learned Judge remembered that in trying a matrimonial cause his position was quite different from, that of a Judge trying an ordinary civil action, the result I am convinced in this case would have been entirely different. In the first place he might have remembered Section 7, Divorce Act of 1869, which provides that:

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.

I admit that in the case of District Courts that raises certain difficulties which have already been referred to by my Lord the Chief Justice, but in the case of a Judge trying a matrimonial cause he has got to see not that the petitioner has given prima facie proof of his case but, to use the language of the authorities, he has got to be satisfied that the justice of the case demands that the decree should be pronounced, That brings me to the other point which the learned Judge in this case seems to have entirely forgotten. Section 14, Divorce Act, makes the passing of the decree discretionary, and in the fourth subclause of that section it is 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. In this case there was admittedly adulterly on the part of the respondent who was bringing the cross-petition. The practice and law in England has recently been investigated in the case of Apted v. Apted (1930) P 246 which lays down that the primary essential for the exercise of its power (that is its discretionary power) by the Court is that there should be secured to it the means of knowledge of the material facts with reasonable certainty.

With this end in view the fact that the exercise of the discretion is sought should appear on the face of the petition. There should be lodged along with the application for the certificate of a Registrar that the proceedings are in order, preliminary to setting down a statement of the matters in respect of which the exercise of the discretion is prayed and the grounds on which the petition in this behalf is based. In this case neither was there a prayer in the cross-petition for the exercise of discretion in favour of the respondent nor was there any investigation by the Court of this most material question having regard to the provisions of the section to which I have referred.

There is another equally grave matter, and that is the same section provides that delay in bringing a petition is a matter which has to be taken into consideration. There was admittedly in this case a long delay which to my mind gives rise to the gravest possible suspicion, but at any rate whether these suspicions are justified or not, it quite obviously was a matter which the Judge should have considered and should have come to some definite conclusion with regard to it. There is only one further observation I should like to make because the matter frequently comes before me in matrimonial causes which I have to try in this Court.

In this case, as my Lord the Chief Justice has pointed out, there was no technical proof of marriage. It is forgotten very frequently in District Courts and sometimes in this Court that the Births, Deaths and Marriages Registration Act of 1886 has been passed by Section 9 of which provision has been made for what I have described as the technical proof. With these observations I would like to repeat that I entirely agree with the conclusions of my Lord the Chief Justice.

Macpherson, J.

I agree with my Lord the Chief Justice. Manifestly this Court is unable to confirm u/s 17, Divorce Act, the decree of divorce passed by the District Judge at the instance of the husband since the latter has failed to establish that the petitioner was living in adultery with Asling from February 1927. That was the issue on which the case went to trial. The only evidence is that the wife gave birth to two illegitimate children and inasmuch as the evidence with regard to the illegitimate children was shut out under the order on the point passed by the predecessor of the learned District Judge, there was no admissible evidence before the District Judge which could constitute legal proof of adultery.