ESME Vs. EDWARD JOHN ANDERSON

JUDGEMENT

(1.) This is a petition by Mrs. Esme Anderson for a declaration that the form of marriage through which she went with the respondent on 17 November 1922 may be declared null and void under Section 18, Divorce Act. It is combined-with a prayer for the custody of the children and for an order for their maintenance till they attain majority. It was remarked in the case of Betteridge V/s. Curry [1913] 29 P.R. 1913 that an application for custody and maintenance of the child should be made by a separate petition. But there the order for declaration of nullity had been made by the District Judge and amounted to a preliminary decree only. Under the English practice a prayer for the custody of children in a void marriage may be inserted in the petition (Langworthy V/s. Langworthy [1886] 11 P.D. 85, quoted in Vol. 16 of Halsbury's laws of England, p 499). The respondent has not been prejudiced in any way by the hearing of this issue at the same time as that of the main petition, and no objection has been raised on behalf of the respondent. In these circumstances I consider that there is no irregularity in disposing of both matters at the same proceeding.

(2.) Most of the circumstances are admitted and the only contested issue between the parties is the custody of the children. When the petitioner went through the form of marriage with the respondent at the Baptist Chapel, Howrah, on 17th November 1922, the respondent had obtained a final decree for the dissolution of his marriage with his first wife, who was still living. The copy of that decree is on the file and it is dated 2 November, 1922. So it is clear that six months had not elapsed from the date of that final decree before the respondent went through the form of marriage with the petitioner. These facts are proved by the admissions of the parties, the marriage certificate of the petitioner and the copy of the final decree in the respondent's petition for dissolution of marriage.

(3.) According to the evidence of the petitioner and of her mother Mrs. Tilbury (and indeed of the respondent) all the parties concerned were ignorant that it was necessary for six months to elapse after the final decree before the respondent was free to marry again. The parties lived together as man and wife from 17th November 1922 until 23 June 1928, They had no knowledge that their marriage was void until April 1928 when in casual conversation Mrs. Tilbury learnt from a Mr. Luke in connexion with another case that her daughter's marriage was illegal and this information she passed on to the respondent. From that date, according to Mrs. Anderson and Mrs. Tilbury, the attitude of the respondent towards both of them completely changed. Mrs. Tilbury, it should be said, had been living with them at intervals during the whole of their life together. On 27 April very shortly after the respondent had discovered the illegality of the marriage, he sent Mrs. Tilbury a letter (Ex. 4) asking her to leave the house. He says in it that he had asked her to leave before, and she accordingly left. The petitioner continued to live with the respondent until 23 June. With regard to an incident that happened on that date there is a controversy between the parties. The petitioner says that she was talking to their neighbour, Mr. Bennett, outside their quarters about 10 p.m. when the respondent came back from the line and accused Mr. Bennett of coming out of the petitioner's room. The respondent then treated the petitioner very badly and knocked her down and she lay unconscious for some hours. When she came to her senses the respondent told her that he would give her till 5 o clock in the morning to leave the house with the children, but he had already removed a number of clothes and other property of hers. She went to the Grand Hotel with her children and wired for her mother who came to her.