EUSTACE CHARLES PALMER Vs. CARMELINE MARY PALMER

JUDGEMENT

(1.) THIS is an appeal from a decision of the learned District Judge of Khandesh under the Indian Divorce Act (IV of 1869). The petitioner, who was the husband, prayed for a decree for a dissolution of the marriage on the ground of his wife s adultery with the second opponent, Augustus Gidley. It was not denied, and the learned Judge has found it proved, that the adultery alleged did in fact take place. But exercising the discretion confided to him under Section 14 of the Act, the learned Judge, in view of all the circumstances, has come to the conclusion that he ought to refuse to grant a decree nisi. The question before us now is whether we should interfere with that exercise of the learned Judge s discretion. In the first, place, there is this to be said that the discretion is primarily the District Judge s and not ours, nor are we, as I understand it, entitled to interfere merely because on a nice balance of the conflicting arguments,.it might seem to us that, if the matter lay originally in our hands, our decision would be the other way. It is certain that before exercising his discretion in this particular manner, the learned Judge gave full consideration to the facts and circumstances upon which his discretion had to be exercised. Having regard to those facts and circumstances, it seems to me impossible to say that we should now be warranted in reversing his order. Mr. Patwardhan has said everything on behalf of his client, the husband, that could reasonably be said, and has called Our attention to Sir Samuel Evans s decision in Schofield v. Schofield [19153] P. 207 The facts in Schofield s case do, no doubt, bear a certain superficial resemblance to those with which we are concerned, but the resemblance is only superficial. There the finding of fact was that the husband had committed only an isolated act of adultery which resulted in the birth of the child, and that act appears to have been committed after the wife had left the husband. Moreover, Sir Samuel Evanses own words supply the strongest caveat against accepting this decision as authoritative in any case where the facts are not precisely similar. For the learned President observed in his judgment: "It is a strange case: it is a case unlike any other which I have heard." Here so far from all the circumstances pleading in excuse of the erring husband, we have it, first, that there was" grave, and in my opinion, unexplained delay before any complaint was made by the husband as regards his wife s abandonment of him; secondly, as the District Judge observes, it is patent on this record that both the husband and the wife have combined to withhold facts from the Court, and that by no means all the truth has been disclosed, and lastly, it is apparent that the husband has been guilty, not of an isolated act, but of a persistent course of adultery with the girl Dias. Speaking for myself, I have little hesitation in drawing the inference that the improper intimacy with the girl Dias began when Dias was a visitor at the appellant s house, while the appellant s wife was yet living with him. Upon these facts it seems to me impossible for us, as a Court of appeal, to say that the District Judge s discretion has been wrongly or improperly exercised adversely to the petitioner. The appeal, therefore, must be dismissed. Shah, J.

(2.) I entirely agree.