P L D 1952 Lahore 138 (PLP)

A. R. CORNELIUS. A. C. J,‑The parties to the present appeal are British subjects domiciled in England. The appeal a‑rises out of a suit brought by the petitioner Major Burns Jones for dissolution of his marriage with the respondent Mrs. Christine Burns Jones by reason of her adultery with the co‑respondent, Col. P. E. Brown. It was stated that the marriage had taken place at the St. Pancras Registry in London on the 27th February 1938, and that the couple had cohabited at places in England and thereafter at places in India and finally at Simla, which on the date of institution of the petition (namely the 20th February 1946) was within the jurisdiction of this Court. It was alleged that adultery was committed on various occasions during a period of six months or more ending the 5th January 1946 as well as after that date. There was one child of the marriage, a son named Hugh, born about 1942. By the petition, the husband sought dissolution of the marriage, an order for the custody of the child, and an order to the co‑respondent to pay the costs of the petition as well as damages which were assessed as Rs. 15,

000. In a lengthy Written statement, the wife denied the adultery and at the same time averred that if adultery had been committed, the petitioner had, by his conduct and neglect, conduced to it and connived at it. In an additional plea divided into no fewer than 25 sub‑paragraphs, one of which was further sub‑divided into 19 clauses, the respondent alleged specific instances of cruelty, and further specified the various acts and omissions of the petitioner which she alleged furnished proof of‑his connivance. The co‑respondent in a brief written statement denied adultery and added that if there had been adultery, the petitioner had connived at it. Six specific acts of omission and commission by the petitioner were cited in support of the plea of connivance. Liability for damages was denied on the ground that the petitioner had stated that the respondent had never been a good wife to him and he was glad to get rid of her. The matters in the case which arose for proof were as to the allegations of adultery, and as to the recriminatory allega tions of cruelty and connivance. The case fell to be decided under section 178 of the (English) Matrimonial Causes Act, 1937. The provisions of this section which are relevant for the purposes of the present appeal are the following. Firstly, by subsection (1), it is made the duty of the Court to inquire into the facts, and also "whether there has been any connivance on the part of the petitioner" and "also to inquire into any counter‑charge which is made against the petitioner". Secondly, if the Court is satisfied that the case for the petition has been proved, and where adultery is alleged, that "the petitioner has not in any manner been accessory to, or conniv ed at, or condoned the adultery", the Court shall pronounce a decree of divorce, but "if the Court is not satisfied with respect to any of the aforesaid matters, it shall dismiss the petition". Finally, the proviso to subsection (2) gives a discretion to the Court to refuse to pronounce a decree of divorce, and instead to dismiss the petition, if, in its opinion, the petitioner has been guilty during the marriage "of cruelty towards the other party to the marriage". It should be noted that where the Court is not satisfied of the absence of connivance or condona tion, it has no discretion in the matter, but is bound to dismiss the petition. But in this way, the impression may perhaps be gained that the burden of establishing absence of connivance rests on the petitioner, but, as was held in Churchman v. Churchman (1945 (2) All England Law Reports Annotated, page 190), this is not equivalent to saying that by section 178, I aforesaid, a presumption of guilt of connivance has been created, displacing the earlier presumption which has always been against the existence of connivance. It was also held in that case that the incidence of the burden of proof is a determining factor only if the tribunal finds that the evidence, pro and con,' is so evenly balanced that it can come to no definite conclusion But that is not the case here, and these observations are necessary only because the learned Single judge who decided the, petition has employed certain language in his judgment which may be construed as having the effect of imposing or placing upon the petitioner, the burden of establishing absence of connivance. The learned Single judge has held that adultery was com mitted by the respondent with the co‑respondent on the night of the 5th January 1946 in the Grand Hotel at Simla. The petitioner and the two opposite parties are the only witnesses of this incident. The petitioner stated that having induced the opposite parties to believe that he had gone down from Simla to Delhi earlier in the evening, he returned to the hotel where the co‑respondent and the Burns‑Jones family both lived, and surprised his wife lying in bed with the co‑respondent in the latter's room. He also found an empty container of a pessary floating in the water closet in his own quarters. The corres pondent was wearing only a pair of pajamas, and was naked from the waist upwards. The respondent was wearing a single garment a silk night dress which had been given to her by the co‑respondent. The opposite parties do not deny that the petitioner found them together in the co‑respondent's bed room 'but they say that the respondent was merely sitting on the bed in which the co‑respondent was lying. This version has not been accepted by the learned Single Judge. It should be men tioned that immediately after making this discovery, the petitioner obliged the respondent to give him a confession in writing. She was obviously very unwilling to do so as is shown by the fact that after two attempts, she agreed to sign a quali fied statement written by herself to the effect that she had lain in bed with the co‑respondent on three occasions but no adultery had taken place although pessaries were inserted on two occasions, and further that she did this in the belief that it would advance her husband's career and that she cared for no one else but her husband. She admitted that he had returned unexpectedly that night and found her lying in bed with the co‑respondent. We feel no hesitation in accepting as correct, the conclusion reached by the learned single judge that adultery between the respondent and the co‑respondent took place on the 5th January 1946. We may mention that the respondent and the co‑respondent were represented before us by a single counsel, who did not seriously contest the finding regarding adultery on the 5th January 1946. The learned Single judge examined certain evidence led by the respondent to establish cruelty towards her on the part of the petitioner during the: marriage and has come to, the conclusion that no cruelty had been established. This finding also is not challenged before us. The petition was, however, dismissed and the parties were left to bear their own costs, on the ground that the petitioner had been guilty of connivance. This quest ion has been argued before us at considerable length by learned counsel for the petitioner, now appellant. We have gone through the entire evidence relevant to this question and have examined all the attendant circumstances and have come to the conclusion that the conduct of the petitioner in this case is not necessarily to be ascribed to a corrupt motive, and con sequently, although if he had paid due regard to the weaknesses of human nature and, in particular, the frailty of women, he might have acted in certain respects otherwise than he did, we find it difficult to hold that he took all the risks which he evidently did with his eyes open, with an object which, in the relevant respect, must be regarded as corrupt. Connivance‑is a matrimonial offence, and the same standard of ‑proof must be furnished in order to establish connivance as is ordinarily required for proving the commission of a criminal offence: Ordinarily, the facts which are adduced to establish connivance are numerous and distinct from each other, and while they may, in themselves, appear trifling, it is the effect of these facts taken together, and viewed in the light of the circumstances of the case, on which the person pleading connivance relies for establishing his case. Therefore, by its very nature a plea of connivance is circumstantial in its character, and to such a plea the ordinary rule of circumstantial evidence must apply, namely, that if the facts and circumstances are susceptible of an explanation which does not necessarily involve a corrupt motive or guilty intention on the part of the person against whom the plea is raised, then the plea cannot be held to have been established. We shall examine the proved facts and the other circumstances relevant to the plea of connivance in the present case in the light of these remarks. The petitioner and the co‑respondent were both in the Army Dental Corps and the co‑respondent was the peti tioner immediate superior at all relevant times. So far as we are aware, the Army Dental Corps did not include any large number of officers, and as an ancillary service we suspect that the association of these officers with those in fighting units and other units which by tradition enjoyed high standing in the army, was not either close or cordial. We are struck by the fact, appearing from the evidence in this case, that the three parties to this case were thrown very much into each other's company. That, it seems to us, was a natural consequence of their being in a service which was both small in its numbers and ancillary in character to the main stream of army life. In such circumstan ces, it was natural for association to be closer than if the parties had belonged to a large social circle. The petitioner and his wife first met Col. Brown in Poona where the petitioner was then posted, and Col. Brown was on a visit of inspection: They apparently developed very friendly relations, and Col. Brown lived in the petitioners house. They played games together and on one occasion, when they were returning home by car, the petitioner thought he saw in the driving mirror of his car that the respondent was being kissed by the co‑respondent. On returning home, he brought up this matter, but was satisfied that there was no kissing and the co‑respondent had only leaned across the respondent to pick up a bag of golf clubs. On another occasion, when the respondent was indulging in a somewhat rowdy game known as "cock‑fighting", the petitioner stopped her because her clo thes were becoming disarranged. These facts are adduced to show that the petitioner was sensitive regarding the honour of his wife, but another incident happened at Poona. which is employed by the opposite party to show a different temper. This was that in October 1944, one morning when the respon dent, was asleep the petitioner, the co‑respondent and another inmate of the house Col. Newton by name finding her asleep, thought to wake her up, and the co‑respondent was induced to lie on the bed by her side and wake her up by touching her. She was much annoyed and the co‑respondent admits that the incident was in bad taste, but, notwithstanding appearances, we do not think this can be regarded as an invitation to the co rrespondent to develop intimacy with the respondent. Having regard to the circumstances in which the incident took place, such a conclusion is in our opinion most unlikely. From Poona, the petitioner was transferred to Simla where he wor ked directly under the co‑respondent. After living in one or two other places, the petitioner and his wife and their child finally moved into a suit at the Grand Hotel which adjoined the rooms occupied by the co‑respondent and communicated with .them by means of an intervening door. The petitioner had gained promotion by his transfer to Simla, which had been brought about by the efforts of the co‑respondent, who, how ever, explains that the petitioner had been working very hard and well so that it is not necessary to suppose that in arrang ing this transfer; the co‑respondent acted with any dishonour able motive, much less to conclude that the petitioner accept ed the transfer with the knowledge that the price would be intimate friendship between his wife and the co‑respondent. It appears that the petitioner was required to go on tour from Simla fairly frequently, while the co‑respondent lived at Simla most of the time. Even, while the petitioner was in Simla, he and his wife and the Colonel lived as one family and enjoyed free access to each other's room. The co‑respondents room was apparently the most sunny and it is said that the three used to sunbathe in‑ the verandah outside this room, and on some occa sions, the respondent after sunbathing would come in and lie on the co‑respondent's bed. It is also said that the co‑respondent had a fire, in his room continuously; and the respondent used to take advantage of this to lie in his bed in the afternoons when her husband and the co‑respondent were still in. the office. On occasions, the respondent would enter the co‑respondent's bedroom in the early morning to fetch biscuits and fruit etc. for her child. Apparently, these things, belonging to both parties, were kept in the co‑respondent's bed‑room. There is evidence to show that the three went out on shooting trips together, and it is said that on one occasion when they were returning from such a trip in the Simla dills, they came to a pool of water, 'in which they all bathed. None of them had any bathing costumes and it is said that the two men entered the water naked while the respondent made a kind of bathing drawers for herself with two handkerchiefs. Then there is evidence to show that the respondent and the co‑respondent used to go out for walks, visits to hotels and restaurants and to the pictures together, without the petitioner raising any objection. At nights, they would sit in front of the fire in the co‑respondent's room in their night clothes and on one occa sion it is said that the" petitioner went down to dine in the hotel dining room, leaving the respondent and the co‑respondent to have their dinner sitting in front of the fire in their night clothes. On a number of occasions, the co‑respondent kissed the respondent. These were occasions such as the New Year's dance, her own birthday, and when they were parting, i.e., when the co‑respondent left Poona in May and October 1944 and when in May 1945 he bade them farewell at the aerodrome at Delhi when he was leaving for England. It is said that on two occasions, the respondent and the correspon dent travelled together by train, between Kalka and Delhi on the first occasion, and between Kalka and Kurkshetra on the second occasion in the same coupe compartment, and the petitioner made no objection. Finally, it is said that the co‑respondent to the knowledge of the petitioner, gave the respondent a number of valuable presents, such as lizard skin shoes, nylon stockings, a gold brooch and ear‑rings set with turquoises, a dressing gown, a frock, a fountain pen, a pencil, cosmetics such as lipsticks, powder and perfume, and drawing and painting books. It is admitted that these, presents were given, but it is said that they were given out of ordinary friendship, some of them to the knowledge of the co‑respondent's wife, and moreover they were given by way of recompense for a number of paintings which had been done by the respondent for the co‑respondent's son, at the request of the co‑respondent. The suggestion is that by allowing all these things to happen, the petitioner was in fact accessory to the very crime of which he complains, namely, the adultery of his wife with the co‑respondent. It has been seen that close association between the co-respondent and the petitioner and his wife was a natural consequ ence of their being members of a small corps. Another point which is of importance in this case is that the co‑respondent' was about 20 years older than either the petitioner or his wife, and this, coupled with the fact that he was almost at the head of the service to which the petitioner belonged, must have helped to invest him in the eyes of the petitioner and his wife with a special position. It would be natural for them to seek his protection and patronage, for their own welfare, and in consequence for a certain warmth of feeling to develop on both sides. In the absence of any indication that the co‑respondent was a man of loose character or evil tendencies, and bearing in mind that he had been to the petitioner a benefactor and pro tector, it would be natural for the petitioner to consider that the co‑respondent would stand in the same position to his wife as well. The petitioner was by no means a man of unsuspicious disposition. At the very outset of this association, he had made it clear that, despite, the subordi nation of his position to the co‑respondent: he would not tolerate any irregular relationship between his wife and the co‑respondent. Between that incident and the date of the proved adultery, there is no indication that anything happened which should have led the petitioner to suspect the character of the co‑respondent. It is true that, as stated by him, his suspicions regarding his wife's behaviour were excited by the discovery that during his absences on tour she had been using peccaries, but it is to be remembered that this discovery does not necessarily point to the co‑respondent as the partner in the suspected misconduct. Therefore, it is possible to understand why it was that the petitioner during the months which the three spent together in Simla, was a party to the development of such intimacy with the co‑respondent as made him practically a member of the family with himself and his wife. It is not uncommon to find an elderly person being admitted to the family circle by a young couple and treated as a relative although there may be no relationship but merely community of interest or similarity of tastes, etc., and where such a person is known to be, or is regarded as being, of sterling character, no suspicion of any kind need be aroused that any irregularities will take place. If the incidents adduced by the respondent and the co‑respondent be regarded in this light, they appear not to possess any out‑of‑the‑way quality which should necessarily have put the petitioner on his guard against the possibility of adultery between his wife and the co‑respondent. When the petitioner and his wife were in and out of the co‑respondent's room to get to the sun‑verandah all day long, there would be nothing unusual in the respondent resting for a while on the co‑respondent's bed or entering the room in the early mornings to fetch biscuits and fruit etc. It would be quite a normal thing for the co‑respondent to offer to take the respondent out for walks or to places of entertain ment, and the petitioner need have given no more thought to such incidents than if his wife had gone out with her own father. Similarly, for the three to sit in front of a fire in their night clothes was the most natural thing, and bearing in mind the difference in age and the special position of respect and authority occupied by the co‑respondent, the petitioner need not necessarily have been worried at the thought of leaving his wife and the co‑respondent sitting in front of the fire in their night clothes. Travelling in the same compartment would not be at all extra‑ordinary, particularly as the petitioner was told that they travelled together because of shortage of accommoda tion on the train, for it is well known that during the War years, that was a very real excuse. The respondent was a competent young woman of some education, who had had jobs in England and belonging to the post‑war generation could be fully trusted to look after herself, and we consider that the petitioner could have relied on this circumstance, equally with the fact that the co‑respondent had developed towards himself and his wife the position of a well‑loved elderly relative in whom full trust could he reposed. The occasions on which kissing took place were by no means numerous, and, again having regard to the special position which the correspondent had come to occupy in the life of this young couple, one cannot say that the occasions were inappropriate for such a greeting A birthday, or New Year's Eve or occasions of parting would be appropriate for a kiss between a woman and a man 20 years senior who had begun to occupy in her house the position of an elderly relative. As to the gifts, these again may be justified as tokens of regard as well as return for valuable work done by the respondent in making paintings for the co‑respondent's son. The total cost of these articles might be, say Rs. 500, and this may be somewhat in excess of the value of the work done by the respondent in return, but in the circumstances it would be natural to expect a somewhat exaggerated return on the part of an oldish man who had developed a real affection for the respondent and her husband. Finally, as to the incident of bathing naked in' the pool in the "Simla Hills, the parties have made it clear by their statements that this was done quite modestly, that the man entered at one end of the pool and the respondent at the other end, and it was so arranged that they saw nothing of each other's bodies except their heads above the water. We cannot suppose that by participating in such an incident the petitioner must have known or suspected, much less that he must have designed that intimacy should develop there-from between the co‑respondent and his wife. The incident appears to have been a perfectly natural one and the proceedings seem to have been conducted in a thoroughly modest fashion. If was stated by the respondent concerning the petitioner that he was very sparing in expenditure of money, and that he cared for nothing in the world but money and position. She attempted to give the impression that the petitioner winked at her behaviour and association with the co-respondent for the purpose of securing advantage and promotion for himself at the hands of the co‑respondent who was his superior. It seems that towards the end of the year 1945, the post which the petitioner held at Simla was brought under reduction and he had to revert to his proper rank which was inferior, and carried markedly less salary. The impression was sought to be created that the petitioner tolerated his wife's behaviour in relation to the co‑respondent only so long as there was an assurance of advantage to be gained from the co‑respondent, and as soon as it became clear that he must revert to a lower position and much. lower salary; he saw no reason why he should restrain his hand any longer and, there fore, he set a trap for the couple and caught them in bed together. On the other hand, the petitioner's statement is that he had for some time been keeping a check on the use of pessaries by his wife during his absences as well as during the periods that he spent in Simla and he discovered that they were being used on occasions when he was not with his wife. The respondent has tried to make out that she used them for other purposes for herself and her son, and the learned Single judge has not believed this explanation. The point, however, which arises for consideration is whether the view that the petitioner tolerated his wife's behaviour in relation to the co‑respondent only for the purposes of his own advancement and ceased to do so immediately that the prospect of advancement came to an end is the only possible view which will explain the petitioner's behaviour, and it is further necessary to consider whether, in a matrimonial sense, it is a corrupt motive to tolerate such association between one's wife and another person, for the sake of furthering, one's official career. On the latter point, an authority which is closely relevant is Moorsom v. Moorsom 3 Hagg. Ecc., 87 printed in 162 E. R. page 1090. There a timber merchant tolerated extremely compromising behaviour between his. wife and his "best customer", a man who was known to be of a very debauched life and unfit to be intro duced into any family including females which valued its honour, and who eventually eloped with his wife. On a con sideration of all the facts of the case, the learned judge held as follows :‑ "If the question were whether Moorsom acted as a prudent, a wise, or an attentive man, the result would be un-favour able : if it were a question whether in fact he contributed to the disgrace of his family, the answer would again be unfavourable ;but the question is whether he contributed with a corrupt intention and, on a consideration of the evidence, I do not think myself judicially warranted to pronounce that he did so." Those observations appear to us to be applicable to a con siderable degree in the circumstances of the present case, with this difference, in favour of the present petitioner, that he had reason not to doubt the chastity of his wife, and reason also to place complete trust in the honour of the co‑respondent, his immediate superior, from whom he had received nothing but good. On the other question we feel no hesitation in saying that the hypothesis of a corrupt motive is not necessarily the only explanation for the petitoner's lack of caution or wisdom or attention, whatever it might be called, in regulating his wife's association with the co‑respondent. The circumstances were such that close association was inevitable ; the character of the third party was regarded as unimpeachable and he had achieved what was equivalent to a parental and fiduciary posi tion‑a position which he had fully lived up to. Therefore, it may well be that the petitioner was lulled by appearances into a sense of security in this respect which prevented him from employing the usual precautions and checks. We cannot see that he was in any way accessory to the adultery which we believe took place, and we cannot see any sign of his having tolerated it once he became aware of it. But it is obvious that he was insensitive to the danger into which the presence of the co‑respondent in the midst of the family circle was drawing the honour of his wife, in the conditions which we find existed in the closing months of the year 1945. The unreasonable degree of trust which he reposed in the character of the co‑respondent may be the root‑cause of this lack of perception, but it cannot be ignored that the peti tioner's carelessness in this respect was placing the respondent and the co‑respondent in a situation where the temptation may have been more than could ordinarily he withstood. It seems clear. also that he was guilty of lack of attention towards his wife, and this was also likely to lead to her developing intimacy with the other man, namely, the co‑respondent who was always present as a protector and companion, solicitous to satisfy her desire for pretty and expensive things, etc., and in a general way, always helpful and considerate. It is to this contrast that, in our opinion, the wife's unfavourable estimate of her husband's character is to be ascribed. Although the co‑respondent was about 20 years older than the petitioner, and approaching retiring age, and although he seems to have given the petitioner no visible cause for suspicion, the fact that he was living away from his wife should have put the peti tioner on his guard in the matter and led him to take such steps as would constitute an effective bar to the development of any unhealthy intimacy. While, therefore, the conduct of the co‑respondent must be regarded as reprehensible, in the sense that he betrayed the trust reposed in him by a subordi nate officer, it must be admitted that that trust was naive to a degree and as it took no account of the ordinary weaknesses of human nature, its breach was both inevitable and natural. The petitioner had it in his power to alter the conditions so that the danger of intimacy developing between his wife and the co‑respondent would have been averted, and his failure to take such steps facilitated the formation of intimacy. But we prefer to impute this failure to the childish faith he had in the character of the co‑respondent, rather than to any conscious running of the risk of intimacy developing, for an ignoble object, namely, the furtherance of his career as an officer in the Army Dental Corps. For these reasons, we consider that the charge of con nivance in the act of adultery which has been established between the respondent and the co‑respondent has not been brought home to the petitioner, and accepting the finding of the learned single judge on the point of cruelty, we allow this appeal and hereby award the petitioner a decree nisi for dis solution of his marriage with the respondent. For the reasons already given, we do not consider that he is entitled to any sum by way of damages; the adultery of which he complains was materially assisted by conduct on his part such as a reasonable and prudent man should have avoided. Nor do we think that he is entitled to his costs, and we accord ingly direct that the parties. should bear their own costs in this appeal. The question of maintenance allowance for the child of the marriage, and alimony for the respondent has been raised before us, but we find no sufficient material on the record on which to reach any decision. These questions can be agitated at the time when the decree comes up for confirmation. A. H. Appeal accepted.