P L D 1955 Dacca 1 (PLP)

ELLIS, J.--‑This matter comes before us under section 17 of the Indian Divorce Act IV of 1869 which requires that every decree for dissolution of a marriage made by a District judge shall be confirmed by the High Court. The petitioner in this case is one Herbert Gaulstan Manook who was married to the respondent Thelma Eileen Manook, then Thelma Eileen Pascall, spinster, at St. Thomas Church, Middleton Row, Calcutta, on the 2nd of April 1940. It is claimed that after the marriage the petitioner and the respondent cohabited at Narayanganj and there was one issue born of the marriage, a boy by name David Manook who is now 8 years of age. The petitioner and the respondent lived together as husband and wife until the 10th of April, 1951, when the respondent left for England taking the child with her, giving the petitioner to understand that she would return in June, 1951, after she had enjoyed a change. The respondent never returned and did not correspond by letter with the petitioner. The petitioner thereupon himself went to England in July, 1951, and when he went to the house of a friend of his, Mr. Paul, at 11 Claremont Terrace, Lewisham, London, he there discovered that his wife, the respondent, was staying with Mr. Paul. The petitioner was received very coldly by the respondent who informed him that she had decided to stay in England and not to return to Pakistan. She also informed him that she had decided to live a life of her own and there was no use in his attempting to get her back again. She further informed the petitioner that she had taken employment in a business house, was capable of living a life of her own independently of him and did not like to go back to married life with him. During his stay in the house of Mr. Paul, the petitioner discovered that the respondent used to be visited by a certain gentleman whose name the petitioner was unable to discover, and this same unknown gentleman used to take her out. The respondent refused to disclose the identity of her unknown visitor and Mr. Paul also was unaware of his identity. When the petitioner asked the respondent who this unknown stranger was, she replied that it was no business of his. One day in the third week of September, 1951, the peti tioner had occasion to pay a visit to the house of a friend, Mr. D. Wylie, at No. 5 Frant Road, Tonbridge Wells, Kent. On arrival there he found that Mr. Wylie had had to leave home on some urgent business and left a message behind regretting his absence. The petitioner thereupon returned unexpectedly to the house of Mr. Paul in 11 Claremont Terrace, and there discovered the respondent, his wife, in a most compromising position with the unknown stranger. When questioned the respondent lost her temper and told the petitioner that she had decided not to live any longer as his wife and it was useless for him to bother her any further. As the petitioner failed to influence her, he took his child away from the house of Mr. Paul, put him in school and thereafter returned to Narayanganj and instituted the present case for the dissolution of his marriage, with the respondent on the ground of her adultery with the unknown person. A short while ago we had before us the case of Bagley v. Bagley (P L R 2 Dacca 647=P L D 1954 Dacca 147.) which was disposed of by this same District Judge and in the body of our order of the 16th of May, 1952, we commented on the necessity of the learned judge deciding in his order the question as to the domicile of the contesting parties. In our order of that date we drew his attention to the observations of Manchanda in his book on "The Law and Practice of Divorce" and we also drew his attention to the cases of Wright v. Wright (I L R 58 Cal. 259), and Rooke v. Rooke (A I R 1934 Bom. 230.). It was observed by Manchanda in his book on "The Law and Practice of Divorce" that when a petition for divorce is presented, the Court must satisfy itself that the following conditions are fulfilled‑proof of marriage, proof that the, petitioner or respondent is a Christian at the time of presenting the petition, that the parties are domiciled in India (or Pakistan) and that the parties reside or la6t resided together within the jurisdiction of the particular Court which is hearing the petition. These conditions the petitioner must: prove by evidence and he cannot be excused from doing so on the ground that the respondent admits them. The question, of domicile, in particular, must be treated with the utmost care Jand a definite finding arrived at by the Court before assuming jurisdiction. So much was decided in the cases of Rooke v Rooke and Wright v. Wright and in the former case when no finding was given on the question whether the domicile of the party was India the case was remanded for a further enquiry. In the present case the learned District judge in his extremely brief order has not considered the question of domicile at all. His order merely reads: "7. 14‑6‑

52. Plaintiff files hazira. The case taken up for ex parte hearing. P.W. 1 H.G. Manook is examined. Docu ment marked Exh.

1. Claim proved. Ordered : That a decree nisi be passed dissolving the marrige of the petitioner with the respondent on the ground of adultery. Let the records be submitted to the High Court for confirmation of the decree for dissolution of the marriage under section 17 of the Divorce Act IX of 1869." That the learned Judge did not apply his mind seriously to the case before him is established by one fact that he quoted the wrong Act under which he was passing his orders. Not only is there no finding by the District Judge on the domicile of the parties‑which is a requisite in law‑but the evidence of adultery is itself extremely unsatisfactory. The evidence is the mere ipse dixit of the petitioner who stated in his evidence : "As I did not get any letter from her, I went to England in July, 1951. She was staying with a gentleman named Mr. P. Paul at 11 Claremont Terrace in London. On my arrival in London, my wife received me coldly. She refused to live with me. I reasoned with her in vain. In the third week of September, 1951, I found my wife and another man in a very compromising position. They were living in adultery there. I could not trace that man, so r could not make him a co‑respondent." From his evidence as given in Court, an attempt is made to show that his wife and another person were living in adultery. This, however, is not what is set out in the petition, because the petition states that his wife was living with Mr. Paul, the petitioner's own friend, in 11 Claremont Terrace, Lewisham, London, and it its not alleged that she was living with him in adultery. On the petition the respondent took advantage of the temporary absence of the petitioner on one day in September to invite her unknown friend into the house and was discovered by the petitioner on his return as he says "flagrante delicto". It has been repeatedly held by the Courts that where only one act B of adultery is alleged, the Court should view the evidence with jealousy and vigilance and should be loath to act on suspicion. In the present case there is only the one act of adultery alleged and it is spoken to only by the petitioner in circumstances which conflict with the statements which have been made in the petition for divorce. For the above reasons, we are not satisfied that the petitioner has been able to make out any case in law for the dissolution of his marriage with the respondent on the ground of adultery and we accordingly decline to confirm the decree which was passed by the District judge under the Divorce Act IV of 1869. The reference is accordingly rejected. GUHA, J.‑‑I agree. AFZAL, J.‑I agree. A. H.Reference rejected.