WILLIAM K HEWSON Vs. ETHEL MHEWSON

JUDGEMENT

(1.) In this case the Judicial Commissioner of Sind has passed a decree nisi for dissolution of marriage in favour of the petitioner, William Knox Hewson, on the ground that his wife had committed adultery with some unknown person. It now comes before us for confirmation. In the first place, we may point out that there is no allegation in the petition that the parties are domiciled in British India. Unless it is shown that they are domiciled in British India, the Indian Divorce Act gives no jurisdiction to hear the petition. That is an allegation which ought to be contained in every petition under the Indian Divorce Act. In any event we should have to send the case back if we thought the decree was right, so that the evidence of domicil should be on the record. But we think on the evidence before the learned Judicial Commissioner that the petitioner was not entitled to a decree. He alleged in his petition adultery of his wife with one Sydney Judd, and he further alleged that his wife had become pregnant by the said Sydney Judd and had a miscarriage. The evidence to prove adultery between the respondent and the co- respondent fell very far short of what would be required by a Divorce Court, and accordingly the learned Judicial Commissioner dismissed the petition against him, and quite rightly in my opinion. The only evidence, therefore, of adultery would lie in the submission by the respondent that she had miscarriage, after she had become pregnant by some one other than her husband. The petitioner did not even take the trouble to prove by any evidence that his wife had as a matter of fact a miscarriage. Undoubtedly she was in the hospital for a certain time up to June 6, 1922, and it would have been a simple matter from the hospital records to prove whether or not she had a miscarriage. But there is nothing left on which a decree for dissolution could be granted except the submission, not the admission, of the respondent that she had a miscarriage. We cannot, therefore, confirm this decree. The petition is, therefore, dismissed. Shah, J.

(2.) I concur. Marten, J.

(3.) AS to the want of jurisdiction in the absence of an Indian domicil reference may be made to the recent case of Wilkinson V/s. Wilkinson, (1923) I.L.R. 47 Bom. 843 : 25 Bom. L.R. 945.