Patrick Donald Stracey vs Eileen Stracey and Another

Ram Labhaya, J.—The District Judge, Lower Assam Districts passed a decree nisi on 4th April 1955 dissolving the marriage of the Petitioner with the Respondent. The records have been submitted to this Court for the confirmation of this decree.

The Petitioner Patric Donald Stracey sued Eileen Stracey, his wife, for the dissolution of their marriage, Harold Murray was made co-Respondent in the case.

The crucial issue in the case was as follows: "Whether the Respondent committed acts of adultery with the co-Respondent on different occasions-between 20th July 1952 and 10th April 1953 as alleged by the Petitioner". In the course of the discussion of the evidence, His Lordships observed:) (3) In ''Woolf v. Woolf, 1931 PD 134 (A), it was held that:

where evidence is tendered in good faith which under the usual circumstances clearly pointed to'' adultery, it was the duty of the Court to act upon it.

The evidence was that the husband had passed two nights in a bedroom at a hotel with a woman. This evidence was considered enough for an inference of adultery. In Earnest John White Vs. Mrs. Katheleen Olive White (Ne Meade) and Others, it was held that "in a divorce case the charge of adultery must be proved beyond reasonable doubt. Public policy, namely the peculiar duty of the Court of protecting the sanctity of marriage relationship-requires this.

Preston Jones v. Preston Jones 1951 AC 391 (C). was relied on in Mrs. Georgians G. Marks Gideon Vs. Edward Nathnial Gideon and Sm. Ram Pyari, The observations of Lord MacDermott in 1951 AC 391 (C), were reproduced. They were as follows:

The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognize this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court. might be satisfied, in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.

These decisions may be regarded as settling the standard of proof needed in a case for dissolution of marriage. If adultery is alleged as the ground for dissolution its proof beyond reasonable doubt would be necessary. This proposition does not conflict with anything laid down in the decision in ''1931 PD 134 (A)''. There it was laid down that evidence tendered in good faith should be accepted. The evidence when accepted was considered enough for an inference of adultery.

In the present case evidence of intimate and exclusive association is abundant. The Respondent and the co-Respondent had numerous opportunities of being alone at their respective residences. They have been seen on no less than four occasions alone at night in one or the other of these two places. On''4-9-52 they were at IB, Palmgrove Road after 2-30 A. M. for about 5 to 10 minutes when lights were dimmed and then brightened. There-is nothing improbable in this "circumstance. Lights may appear to have been dimmed if one of the-two available lights is switched off learned District Judge should receive confirmation of this Court and is hereby conllnued.

The question of alimony could toe considered only on the decueo being confirmed. This having happened, this question arises for consideration. This can be decided only after hearing the counsel for the parties who had no opportunity of addressing the Court on this point before.

Sakjoo Prosad, C.J.

It is with no small difference that I have agreed to the order proposed to be passed in this case by my brother colleagues.

The prayer for dissolution of marriage is based on allegations of adultery between the Respondent and the Respondent on various occasions as enumerated in paragraph 11 of the petition. There is indeed plenty of evidence of deep friendship and even intimacy between the Respondents. In fact a large part of it is admitted by the Respondents themselves and their witnesses.

But the question is whether this intimacy had ripened into criminal intimacy or adulterous intercourse between them. The evidence of general behaviour of the Respondents towards each other may lead one to entertain somewhat strong suspicion as to the illegal nature of their intimacy; but whether this suspicion enters the realm of proof and a well-founded conviction of the existence of such relationship is a different matter. I have my own doubts about the credibility of the evidence adduced by the Petitioner on the specific instances of adultery mentioned by him, (After discussing the evidence His- Lordship proceeded as follows;) (9) I have directed my attention only to the glaring features of the evidence. I am invited on this state of the evidence to hold that the allegations of adultery en the dates alleged have been substantiated. I naturally hesitate to do so. But, throughout this evidence there is at least one feature of the case, which emerges clear; and that is the fact that the Respondent and the corRespondent seem to be fond of exclusively associating with each other and have at all odd hours of the day and night freely enjoyed and indulged in each other''s company.

It is probable that this factor weighed with the learned District Judge in condoning the lacuna in the evidence adduced toy'' the Petitioner and in passing the decree for dissolution of marriage. It is probably this consideration, which has also weighed, and quite naturally, with my brother colleagues in proceeding to confirm that decree. On the whole, therefore, I am also disinclined to seek to interfere now with the decree passed by the learned District Judge and in view of the order which I propose to make, I consider it unprofitable'' to dilate upon the questions raised any further.

We are, however all agreed that it is a fit case in which an order for alimony should be made in favour of the Respondent...We, therefore, think that an adequate allowance payable by the Petitioner for her maintenance should be granted. As to what the amount should be we propose to determine after the Court has delivered judgment confirming the decree for dissolution of marriage and heard the parties on the question of alimony payable.

Deka, J.

10-a. (His Lordship after discussing the circumstances of the case expressed his concurrence with the view that the Respondent and co-Respondent had been leading an adulterous life.)

We have heard the learned Counsel for .the parties on the question of alimony. We think that the proper forum to determine the question .would be the court of the District Judge, who passed, the decree nisi. In the circumstances, we would refer the matter for appropriate orders to the District Judge. The record may be sent to the District Judge as early as possible.