CHARLES HENRY SMALLEY Vs. OLIVE MURIEL SMALLEY

JUDGEMENT

(1.) THE petitioner, Charles Henry Smalley, applies for revision of an order of the District Judge, Nagpur, lated 29th August 1927, in Civil Suit No. 3 of the same year. By this order the District Judge declined to issue any sitation or to proceed further on Mr. Smalley's petition for dissolution of marriage. In para. 5 of the petition in the lower Court it was alleged that Mrs. 3malley, the respondent, had commited adultery in Darjeeling in the year 1926 with a person unknown to the petitioner. The learned District Judge further examined counsel for the petitioner with reference to the fact of any so respondent having been cited, and accordingly the said counsel is said to lave stated orally that the petitioner was aware of the alleged adulterer; but mat as he was an officer holding a high position in Government service, he did act wish to disclose it. The learned District Judge held that this reason, as well as the fact that the petitioner having no absolute proof of the adultery, did not wish to cite any particular person as co-respondent, were inadequate ones and he, therefore, declined to proceed further as stated.

(2.) I have had an affidavit filed by the petitioner in this Court and have also examined him further on oath. Prom the affidavit and the said examination on oath it would appear that there has been some misunderstanding of the real position of the petitioner in this matter. It is now clear apparently that his wife, in the oral confession she is said to have made to him, did not disclose the name of her paramour or paramours. Prom independent enquiry, however, the petitioner has suspicions against two men, one of whom is a Government official, but he has sworn that his reason for not mentioning their names is that, in spite of efforts and enquiry, he has been unable to obtain any substantial proof against either man and he, therefore, is reluctant to take the risk of making them corespondents.

(3.) IN this view of the case, I am of opinion that the District Judge was justified in declining to proceed further until the petitioner has either satisfied the Court that, he is unable to discover the adulterer's name, or, in the alternative, satisfies the Court that due effort having been made, the name of the adulterer cannot be discovered.