CONSTANCE CATHERINE MORENO Vs. HENRY WILLIAM BUNN MORENO

JUDGEMENT

(1.) This is an appeal against a decree nisi for dissolution of marriage made upon a petition presented by a husband under Section 10 of the Indian Divorce Act, 1869, on the ground that his wife had, since the solemnization of the marriage, been guilty of adultery.

(2.) The petitioner and the respondent were married on the 21st May 1S02 and lived together until the month of February 1905, Daring this period, two children were born to them, a daughter, now sixteen years of age, and a son who is dead. In February 1905, the respondent left the petitioner and lived apart till the end of the year 1912, or the beginning of the year 1913. The petitioner alleges that after the respondent had left him, she lived in adultery with one Pratti, now deceased. She gave birth to two children in 1907 and 1908; but the petitioner was not aware either of the adultery with Pratti or of the birth of the children. In 1909 one Abro commenced divorce proceeding against his own wife and made the petitioner a co- respondent, on the allegation of adultery with her. Shortly after, in 1910, the respondent instituted divorce proceedings against the petitioner on the basis of the adultery alleged in the Abro suit. Both the suits were dismissed as against the petitioner. In 1912, the petitioner and the respondent became reconciled through the intervention of a friend, and from the beginning of 1913 they resumed cohabitation. According to the petitioner, he discovered, for the first time, towards the end of that year or in the beginning of next year, that his wife had committed adultery with Pratti and that children had been born of the intercourse. The parties accordingly separated again. The respondent instituted proceedings before a Presidency Magistrate for maintenance order under Section 438 of the Criminal Procedure Code, but withdrew them as the parties came to an arrangement. In December 1911 she again instituted similar proceedings, and on the 6th January 1915 the Magistrate made an order in her favour directing the petitioner to pay her maintenance at the rate of Rs. 50 per month. On the 19th December 1918, that is, nearly four years after the date of the maintenance order, the petitioner commenced the present proceedings for dissolution of marriage and for the custody of his daughter. The respondent did not deny the alleged adultery, but opposed the petition substantially on two grounds namely, first, that the petitioner had condoned the adultery, within the meaning of Section 13 of the Indian Divorce Act, and secondly, that the petitioner had been guilty of unreasonable delay in presenting the petition, within the meaning of Section 14, Mr. Justice Greaves has overruled both these contentions and has granted the husband a decree nisi for dissolution with the custody of the child of the marriage The respondent has appealed to this Court and Counsel on her behalf has reiterated the We defaces which were unsuccessfully urged in the trial Court.

(3.) As regards the first contention, namely that the husband had condoned the adultery and was consequently no longer entitled to an order for dissolution of marriage, reliance has been placed upon the admitted fast that the parties resumed cohabitation in 1913. The only point in controversy is whether at the time when cohabitation was resumed or during the continuance thereof the husband was aware of the antecedent adultery on the part of his wife The wife asserts that he had full and definite knowledge of all the circumstances before cohabitation was resumed; the husband maintains on the other hand that he had no such knowledge when he took back his wife and that as soon as he made the discovery, he separated from her in the beginning of 1914. There is conflict of testimony on this point; and upon an examination of the evidence we have arrived at the conclusion that, even though it may be difficult to ascertain whether the story narrated by either party is true in all its details, there is no room for reasonable doubt that, after cohabitation had been resumed, the husband became aware of the misconduct of his wife, and notwithstanding such knowledge continued to cohabit with her. Upon this part of the case, we have the following definite statement made by the husband on the 6th January 1915 in the course of the maintenance proceedings instituted by his wife in the Court of the Presidency Magistrate: "I lived with my wife for one year in 1913. I discovered about Pratti about the middle of 1S13. She lived with me up to the end of 1913." The statement was put to him in cross examination by Mr. Mitter, and it is sufficient to state that the witness was not able to explain it away satisfactorily. Besides this, indications are not altogether lacking that the petitioner was in all likelihood aware of the misconduct of his wife, much earlier than 1913. In the divorce proceedings instituted by the respondent against the petitioner, shortly after the Abro suit, Mr. Justice Pugh received an anonymous letter on the 19th August 1910. The letter was sent to the Government Solicitor, who submitted a report on the 18th November 1910 embodying the result of the enquiries made by him. This report states definitely that the then petitioner (the wife) had in 1907 and 1908 committed adultery with Pratti and that she had in 1907 given birth to a daughter who was in the Entally convent in the suburbs of Calcutta, and in 19l8 again given birth to another daughter who had died on the 1st January 1909, an infant five months old. The Government Solicitor added in the report that there was good ground to believe that there was collusion between the husband and the wife in the matter of those divorce proceedings. This report was made part of the record, and the proceedings were, as already stated discontinued immediately afterwards. No doubt, direct evidence is not available to show that the petitioner became aware of the contents of this report, but it looks very improbable that he could have remained totally ignorant of a report of this character which was filed in Court. He was a party to those proceedings and may reasonably be expected to have enquired why the proceedings suddenly collapsed. On the other hand, if the proceedings were collusive, as suspected by the Government Solicitor, that significant fact alone materially weakens his case. We cannot also overlook that although in 1909 and 1910 the petitioner used to live at Allahabad, he was in Calcutta in 1908 and employed a detective to watch his wife, who had left his protection and had already given birth to two illegitimate children, the survivor of whop was subsequently placed in the Entally convent. It seems hardly probable that a person in the position of the petitioner should remain entirely ignorant of the mode of life led by his wife and the consequences thereof. But even if all these circumstances do not show conclusively that he had definite knowledge of the misconduct of his wife before he resumed cohabitation with her, there is no escape from his own statement made on the 6th January 1915. The question thus arises whether there was such condonation on his part as is contemplated by sections 12 and 13 of the Indian Divorce Act.