EDITH WALSH Vs. EDWARD WALSH

JUDGEMENT

(1.) This is one of those unfortunate cases which begins with a blunder, and continues to run a crooked course. When the case was last before us, we sent it down for a remand, first, on an issue as to domicile, and, secondly, on an issue whether the parties reside or last resided together within the meaning of Section 3 of the Indian Divorce Act 1869, so as to give jurisdiction to the District Court at Poona. This was because neither of these essential points had been determined by the Court at the previous hearing of the case.

(2.) Mr. Lawrence, the present District Judge, has now heard further evidence on these two issues. As regards the first issue, viz., that of domicile, we agree with him that the domicile of the parties is shown to have been Indian at the date of the petition. As regards the second issue, the learned Judge has found that the parties last resided together at Kirkee within the meaning of Section 3. But when the evidence is looked into, it will be seen that it is of an extremely sketchy character. The wife appears to have lived with her mother at Kirkee, and the husband with his mother at Thana, and at the most the husband came for some week-end visits to his wife at Kirkee. The learned Judge further appears to have relied on the independent testimony of Thomas Dunn, Exhibit 26, that in 1924 the husband used to pay visits to his wife at Kirkee.

(3.) It appears, ho vever, to have been overlooked that this petition (which was presented on June 17, 1925) is founded on (1) adultery, and (2) desertion ; and that in paragraph 4 of the petition the petitioner pleads that since the year 1921 she has been deserted by her husband. Moreover, this desertion has been found proved by Mr. Davis, the predecessor of Mr. Lawrence, in his judgment, dated October 28, 1925, where he finds: "There can be no possible doubt from the evidence on record that the respondent has without any reasonable cause deserted the petitioner for more than two years prior to this petition."