E C MATHERS Vs. GSAMATHERS

JUDGEMENT

(1.) The petitioner in this case then Emma Caroline Finlayson, was married to the respondent, George Stanley Alexander Mathers, at St. Paul's Church, Airdrie, Lanarkshire, on 18-11-1901. The parties are domiciled in Scotland. At the time of the marriage the petitioner was 21, and the respondent 23 years of age. The respondent was then employed by the East Indian Railway, and his employment terminated in 1933. After the marriage husband and wife resided together at various places on the Railway, to which the respondent was posted. There have been four sons and two daughters born of the marriage. They are all surviving. The eldest child was born in December 1910, and the youngest in October 1921. Cohabitation ceased in October 1935, in circumstances with which I shall deal hereafter. On 28 January 1936, the present petition was filed under the Indian and Colonial Divorce Jurisdiction Act, 1926, the petitioner asking for dissolution of her marriage on the ground of her husband's cruelty, the acts of cruelty alleged having been all committed in India. In filing the petition the petitioner sought to avail herself of the amendment of the English Matrimonial law effected by Section 2, Matrimonial Causes Act, 1937, which came into operation on 1 January 1938.

(2.) This Section amends Section 176, Supreme Court of Judicature (Consolidation) Act, 1925, inter alia by making it possible for a husband or wife to present a petition for divorce on the ground that the respondent has since the celebration of the marriage treated the petitioner with cruelty. On 18 March 1938 the respondent filed an answer whereby he denied the allegations of cruelty contained in the petition, and also stated that the petitioner was, and had been for some time past, living in adultery with a Mr. Colin Silvester, Mr. Silvester intervened and filed an answer on 27 April 1938, denying the charges of adultery, and stating that the petitioner was employed by him in the capacity of a house-keeper. This was the state of the pleadings when the case was first called on before me, I think, in the month of July. Having examined the record I expressed the following views as to the jurisdiction of the Court which I continue to hold.

(3.) In my opinion Section 1 of the Act of Parliament of 1926 together with proviso (a) thereto has the effect of conferring upon a Chartered High Court the power to grant a decree of dissolution where the parties are British subjects domiciled in England or Scotland on the grounds specified in Section 176, Supreme Court of Judicature (Consolidation) Act, 1925, as that Section has stood since 1 January 1938. In other words a High Court has power to grant a decree of dissolution on the ground of cruelty alone. This power is however subject to proviso (c) of Section 1 of the Act of 1926 which is to the effect that no Court shall make any decree of dissolution of marriage except when either the marriage was solemnized in India, or the adultery or crime complain, ed of was committed in India. Admittedly, the first condition, i.e., solemnization of the marriage in India is not satisfied in this case. Further in my opinion the word "crime" cannot include cruelty but must be taken to refer to the specific criminal offences mentioned in Section 176, that is to say rape, sodomy and bestiality. Matrimonial cruelty is not a crime though of course a particular act of cruelty may be punishable criminally.