JAMES PETER SHERRING Vs. SHAHZADI SHERRING JACKSON

JUDGEMENT

(1.) This is a husband's petition for divorce on the ground of his wife's adultery in which a decree nisi was granted by the District Judge in September 1926. It comes before this Court for confirmation of the decree for the second time. On the first occasion, in May 1927, this Court's attention was drawn to the fact that the petitioner admitted that he had contracted syphilis during his married life, and a Bench of this Court, presided over by the Chief Justice, remitted the case to the District Judge's Court for a decision, without fresh evidence, whether this fact did not constitute a discretionary bar. The matter remitted was disposed of by another District Judge in July of this year, who held that the discretion might be suitably exercised in the petitioner's favour because the husband's record, though not spotless, was not so bad as his wife's and it did not appear that any useful purpose could be served by refusing to dissolve a bond that had ceased to perform any useful function.

(2.) This ground appeared to us so entirely inconsistent with the principles by which the English Court governs itself in deciding this somewhat difficult question, that we reserved judgment in order to enunciate, for the assistance and guidance of the lower Courts, the principles upon which this part of the Matrimonial Court's duty in England is administered. It is obvious, from the decided cases to which reference will be made hereafter, that it is obligatory upon the Court carefully to consider all the circumstances of the married life, and in particular the circumstances relating to the petitioner's adultery. On examining the record of this case we find the story to be in certain particulars a peculiar one, and, on the merits, we find ourselves unable to agree with the decision.

(3.) The parties are Indian Christians, engaged in mission work, and appear to belong to a circle, intermingling a good deal in residence, possessing rather loose habits, and using hyperbolic and occasionally mysterious language in their correspondence. No attempt unfortunately has been made in the examination of the authors of certain letters, to which we shall have to refer, to clear up mysterious phrases in the correspondence. The parties were married in January 1919, and the first and only child was born to them in December 1919, at Palwal, where the husband and wife resided. Miss Sahzadi, the wife, had been a member of the Baptist Church at Palwal, the husband being connected with the C.M.S. Miss Sahzadi had been intimate before marriage with the co-respondent, to whose brother her sister was married, and she had a child by the co-respondent. The husband said at the trial that he did not know this, and that he learnt it in Bombay late in 1920 from a brother of the co-respondent, from whom he also learnt that his wife had been continuing the intimacy with the co-respondent after marriage. The co-respondent's brother contradicts this statement. He says that he negotiated the marriage, and that he told the husband about the existence of the child who was still alive. The probabilities would lead one to prefer the statement of this witness. In a small religious community like Palwal it is difficult to believe that the fact of the birth was not known to Mr. Sherring. The child was living with her when his marriage with Miss Sahzadi was arranged. At any rate, it is almost certain that he would have discovered immediately after matrimony, that she had already borne a child, and the fact that he knew is almost conclusively shown by certain expressions in the wife's letters. (After dealing with evidence as regards adultery, the judgment proceeded.) There is a general allegation that at a later stage in the story of this married life, during the seven years when the husband says he was waiting because he thought he could not bring divorce proceedings until the expiration of that period, the respondent and co-respondent lived together at Meerut.