JOHN HENRY RHINE Vs. MABEL RHINE

JUDGEMENT

(1.) These appeals arise out of cross-petitions for divorce under the Indian Divorce Act. The appellant, John Henry Rhine, who is an Engine Driver on the North- Western Railway, was married to the respondent Mabel Rhine in the Central Provinces in the year 1897. The last residence of the parties was at Saharanpur. There has been no issue of the marriage. Mrs. Rhine left her husband in April 1909 and went to her brother in the Punjab. She, on the 28th of May 1909, instituted a suit in Lahore against her husband for "dissolution of their marriage, or in the alternative for judicial separation". The plaint in this suit was returned to her to be filed in the proper Court, the Court at Lahore not having jurisdiction in the matter, and accordingly the plaint was filed in the Court of the District Judge of Saharanpur on the 30th of July 1909. Meantime, Rhine filed a petition for divorce on the 22nd of July 1909 on the ground of his wife s adultery with the co- respondent, Leonard A. Green, also an Engine Driver on the North-Western Railway.

(2.) By agreement of the parties the two suits were heard together and one judgment was delivered in both suits. Mrs. Rhine alleged in her petition various acts of cruelty on the part of her husband, and charged him with having committed at various places carnal intercourse with her against the order of nature forcibly and against her consent. The adultery of Mrs. Rhine with the co- respondent Green was established to the satisfaction of the learned District Judge and his finding is not now in controversy. He also found that the misconduct of Rhine, alleged by his wife, was established by the evidence, and dismissed Rhine s petition for dissolution of marriage as also Mrs. Rhine s petition for dissolution of marriage, but he granted Mrs. Rhine s prayer for judicial separation. In his judgment he remarks I have found that Rhine has been guilty of conduct which is not only criminal but which constitutes a high degree of cruelty of a most abominable kind, and I do not think that the idea can be tolerated that the wife should be obliged to live with her husband under such circumstances.

(3.) The present appeals were then preferred by the husband, and the grounds of appeal are that the evidence on the record did not justify the finding that the respondent was guilty of the criminal offence charged against him, and that a decree for judicial separation ought not to have been passed, having regard to the fact that Mrs. Rhine was proved to have been guilty of adultery, and further that a decree for dissolution of the marriage on the ground of his wife s adultery ought to have been passed in his favour. Mrs. Rhine does not resist the appeal and no one appears for her. As to the observation of the learned District Judge that he did not think that the idea could be tolerated that the wife should be obliged to live with her husband under the circumstances of this case, I may say that it does not necessarily follow if a decree for judicial separation be refused that she will be obliged to live with her husband. If he seek restitution of conjugal rights it will be for the Court before whom the case comes to say whether, under the circumstances, a decree should be passed in his favour.