JUDGMENT
Walsh, J.
1. This is a husband’s petition for divorce on the ground of his wife’s adultery in which a decree nisi was granted by the District Judge in September 1926. It comes before this Court for confirmation of the decree for the second time. On the first occasion, in May 1927, this Court’s attention was drawn to the fact that the petitioner admitted that he had contracted syphilis during his married life, and a Bench of this Court, presided over by the Chief Justice, remitted the case to the District Judge’s Court for a decision, without fresh evidence, whether this fact did not constitute a discretionary bar. The matter remitted was disposed of by another District Judge in July of this year, who held that the discretion might be suitably exercised in the petitioner’s favour because the husband’s record, though not spotless, was not so bad as his wife’s and it did not appear that
any useful purpose could be served by refusing to dissolve a bond that had ceased to perform any useful function.
2. This ground appeared to us so entirely inconsistent with the principles by which the English Court governs itself in deciding this somewhat difficult question, that we reserved judgment in order to enunciate, for the assistance and guidance of the lower Courts, the principles upon which this part of the Matrimonial Court’s duty in England is administered. It is obvious, from the decided cases to which reference will be made hereafter, that it is obligatory upon the Court carefully to consider all the circumstances of the married life, and in particular the circumstances relating to the petitioner’s adultery. On examining the record of this case we find the story to be in certain particulars a peculiar one, and, on the merits, we find ourselves unable to agree with the decision.
3. The parties are Indian Christians, engaged in mission work, and appear to belong to a circle, intermingling a good deal in residence, possessing rather loose habits, and using hyperbolic and occasionally mysterious language in their correspondence. No attempt unfortunately has been made in the examination of the authors of certain letters, to which we shall have to refer, to clear up mysterious phrases in the correspondence. The parties were married in January 1919, and the first and only child was born to them in December 1919, at Palwal, where the husband and wife resided. Miss Sahzadi, the wife, had been a member of the Baptist Church at Palwal, the husband being connected with the C.M.S. Miss Sahzadi had been intimate before marriage with the co-respondent, to whose brother her sister was married, and she had a child by the co-respondent. The husband said at the trial that he did not know this, and that he learnt it in Bombay late in 1920 from a brother of the co-respondent, from whom he also learnt that his wife had been continuing the intimacy with the co-respondent after marriage. The co-respondent’s brother contradicts this statement. He says that he negotiated the marriage, and that he told the husband about the existence of the child who was still alive. The probabilities would lead one to prefer the statement of this witness. In a small religious community like Palwal it is difficult to believe that the fact of the birth was not known to Mr. Sherring. The child was living with her when his marriage with Miss Sahzadi was arranged. At any rate, it is almost certain that he would have discovered immediately after matrimony, that she had already borne a child, and the fact that he knew is almost conclusively shown by certain expressions in the wife’s letters. (After dealing with evidence as regards adultery, the judgment proceeded.) There is a general allegation that at a later stage in the story of this married life, during the seven years when the husband says he was waiting because he thought he could not bring divorce proceedings until the expiration of that period, the respondent and co-respondent lived together at Meerut.
4. The story relating to the period between 1921 and 1926, the date of the petition, is extremely sketchy. It is really unsafe to attempt to infer any definite fact from the evidence about it. It does, however, appear that the respondent and co-respondent did at some time or another, during this period, occupy the same house in Meerut, but it was the house in which the mother of the respondent also lived. The respondent was understood to be living with her mother there, and it appears from the evidence that it was a house in which several people, all of them belonging to this family, either by blood or by marriage, lived together. There is not a scrap of evidence except this from which actual adultery can be inferred. As to this part of the case the learned Judge based himself upon the letters of the wife but, as none of them are later than 1921, the inference to be drawn from them must relate to misconduct either in Palwal or Bombay. In quoting from these letters the learned Judge has fallen into one very serious error, which, in our opinion, is unjust to the respondent. He says that she wrote in Ex. 12:
Whatever folly has been committed by me is past, and in future I will never commit this folly again and you should never consider that I will deceive you any more.
5. The words “any more” are not in the letter. On this misquotation, which, if it were accurate, might certainly justify an adverse inference against the woman, the Judge has said that it is clear that not only had she misconducted herself with the co-respondent, but that she had been taken to task for it, and that she was assuring her husband that she would not deceive him again. He then draws the correct inference that infidelity could only refer to postnuptial conduct, which is of course true, but we have been unable to trace any reference to infidelity in any letter written either by the husband or by the wife.
6. On the whole, therefore, we come to the conclusion that the finding of adultery against the respondent and co-respondent cannot be confirmed, that the respondent is entitled to a finding of “not guilty” on this issue, and that on this ground alone the petition must be dismissed. The woman’s misconduct before marriage must have been fairly well-known in the community. Her marriage with the husband no doubt rehabilitated her, and there are expressions in her letters which show how keenly she realized this, and it is difficult to understand what motive she could have had, after deciding to marry Mr. Sherring and being willing to bear him children, for continuing a connexion with the co-respondent which could do her no good, and would probably put an end to any chance of her continuing a respectable member of the community.
7. It is, however, incumbent upon us to continue our consideration of the case, as if we were in agreement with the Judge in his finding against the wife. This consideration raises questions of importance in the administration of the Divorce Act.
8. First we have to consider the state of mind of the petitioner when he was in Bombay. According to Irene, if she ever mentioned the alleged adultery at Palwal to her father, a fact which her father does not himself mention, she did not mention it until her father returned from Bombay. According to the husband he learnt of his wife’s infidelity in some casual conversation with the co-respondent’s brother, a circumstance strange, if true, and not consistent, either with a desire on the part of the co-respondent to continue in mission work in Bombay, or with an insidious attempt, as is alleged, on the part of the co-respondent, to persuade Mr. Sherring to bring his wife to Bombay. But, if this conversation ever took place, Mr. Sherring does not connect his adultery in Bombay with it. It was not an isolated act of adultery. According to the evidence he kept this woman, who was a Bombay prostitute, for some two or three months, and probably contracted syphilis from her. Even this is not certain, because he pretended to the Court that he had been told by a doctor that it was the result of something he had eaten. It would be in our opinion a case of the worst possible example if we were to treat this as one of those acts of adultery which could be brought by the Court within any rule, however much extended, upon which a matrimonial Court has acted in such cases.
9. The importance of this case is that, although the question of a discretionary bar is not one of frequent occurrence, it has to be dealt with in the lower Courts of these provinces, without the assistance of the English Law Reports where the principles of English practice, which we are bound to follow, are laid down, and without the advantage of expert assistance from the Bar.
10. The principles deducible from the English cases were formerly as follows: If a petitioner’s adultery has no special circumstances placing it in some category capable of distinct statement and recognition, the Court will refuse to grant a, decree. The Court will not assume to itself a right to grant, or withhold, its decree upon the mere footing of the petitioner’s adultery being more of less pardonable or capable of excuse. Morgan v. Morgan [1869] I.P. & D. 644. “A lose and unfettered discretion,” it was there said, “is a dangerous thing to entrust to a single Judge.” Re-marriage in the belief that the first wife is dead, or in ignorance that the decree nisi did not dissolve the marriage, and adultery long pardoned and condoned, and not repeated, are three cases in which the discretion has been exercised, Cases in which it has been exercised in favour of a husband are rare, Constantinidi v. Constantinidi [1903] P. 246. Even in the case of a wife no feeling of sympathy can be entertained. Her adultery must be shown to have been caused directly by her husband’s cruelty and adultery: Wyke v. Wyke [1904] P. 199. This principle of direct causation has been applied occasionally to a husband, but Bargreave Deane, J., said that misconduct may be excusable in a woman which would not he excusable in a man: Pretty v. Pretty [1911] P. 83. In more recent cases, the practice in England seems to have been somewhat relaxed in favour oven of a husband, e.g., Sir Samuel Evans, the President, exercised his discretion in one case in favour of a husband petitioner who, years after his wife had deserted him, had committed an isolated act of adultery with a woman whom he intended to marry, resulting in the birth of a child, and who had concealed it from the Court; The President, in his judgment, founded it upon grounds of public morality and the interests of the woman and her child. Schofield v. Schofield [1915] P. 207: The most recent decision is that of the President Sir Henry Duke as he then was, in Tickner v. Tickner [1924] P. 118. The decision of Lord St. Helier in Constantinidi v. Constentinidi [1903] P. 246 was subsequently discussed in the Court of appeal, and the President quotes from Vaughan Williams, L.J.:
The Court must have regard not only to the rights and liabilities of the matrimonial person wronged, and of the wrongdoer respectively inter se, but also to the interests of society and public morality: Constantinidi v. Constantinidi [1905] P. 253.
11. He also quotes Stirling, L. J,,as having said:
In the exercise of every discretion which is vested in the Court the Court should endeavour to promote virtue and morality and to discourage vice and immorality.
12. He further quoted Swinfen Eady, M.R. in Wickins v. Wickins [1918] P. 265:
Where Parliament has not thought fit to define or specify any cases, or classes of cases, fit for its application, this Court ought not to limit or restrict that discretion by laying down rules within which alone the discretion is to be exercised.
13. He ultimately prefers the broader view thus enunciated to the more restricted one of confinement to special categories of cases, as originally laid down in Morgan v. Morgan [1869] I.P. & D. 644 and exercises his discretion in favour of the wife petitioner, in that it case, on grounds of public policy.
14. We are of opinion that, if the above principles are kept steadily in view, there ought to be no difficulty in the Courts of these Provinces exercising the discretion rightly in any case in which the question arises. As we have said already, we are unable to approve the reasoning by which the District Judge reached his decision in this case, and we have no alternative but to decline to confirm the decree, which must be set aside. The husband must pay the costs both of the wife and of the co-respondent.
