P L D 1967 Lahore 731 (PLP)

ANWARUL HAQ, J.‑This case has been forwarded to the High Court under section 17 of the Divorce Act (No. IV of 1869) by the learned District Judge of Lyallpur, for confirmation of the decree nisi passed by him, dissolving the marriage of the petitioner Isac Nazirullah with the respondent Dr. Dorothy Budh Singh.

2. The parties were married according to Christian rites on the 28th of August 1953 in village Tapiala of the Narowal Tebsil in Sialkot District. From the very beginning the union proved a difficult one for both sides, and it is common ground that up to the filing of the present petition in June 1963, i.e., during the period of nearly ten years, the parties had lived together as man and wife for only a few weeks, and that too for a few days at a time. In the petition as well as in the statements made by the parties before the learned District Judge there is a lengthy narration of the differences which cropped up between the parties and, of the factors which prevented them from being together. It appears from this narration that from the very beginning the wife was an unwilling party to the marriage. However, for the present purpose it is not necessary to recite all these details, and suffice it to say that the husband sought the dissolution of marriage on the following grounds: (a) Adultery with a Canadian national named Mr. Bester (Respondent No. 2) in the year 1958, particularly on the 16th of February 1958, (b) Adultery with Nawabzada Mazhar Ali of Gujrat (Respondent No. 3) between 1961 and 1963, and (c) Desertion without lawful excuse inasmuch as the wife refused to live with the husband on one pretext or the other.

3. The petition was opposed by the wife as well as by respondent No. 3 Mazhar Ali, respondent No. 2, Bester having left Pakistan. The wife pleaded that she had not lived with the husband for any appreciable period of time for the reason that he had no house of his own, he neglected to maintain her, and his mother was cruel and unreasonable. She admitted that she had gone to the United Kingdom for further studies, but asserted that she never refused to live with the husband and that, in fact, after her return from the United Kingdom she lived with the petitioner for six weeks at Gujrat where she was employed in the Dow Memorial Hospital. She denied the allegations of adultery with the two co‑respondents.

4. Respondent Mazhar Ali also put in a written statement denying the allegations made against him, and stating that Dr. Dorothy was a practising lady Doctor at Gujrat but she was not living in any house owned by him and that he was, in fact, living in Chak No. 28/10‑R in the Multan District since 1958, and had no illicit connection with the petitioner's wife. Mazhar Ali also appeared as a witness (R. W. 5) at the trial in support of the position taken up by him in tae written statement. Mr. Jeremy, the learned counsel for the respondent, has rightly pointed out that the learned District Judge is in error in thinking that beyond putting in a written statement, Mazhar Ali did not take any steps to controvert the allegations made against him by the petitioner. We find that Mazhar Ali did appear at the trial, as already stated, to vindicate his position.

5. On the pleadings of the parties the learned District Judge framed the following issues: (1) Whether Dr. Dorothy‑ defendant No. 1, had been living in adultery with Mr. Mike 1Bester respondent No. 2)? (2) Whether Dr. Dorothy, defendant No. 1, was living in adultery with Mazhar Ali (respondent No. 3)? (3) Whether Dr. Dorothy, defendant No. 1, is unlawfully living apart from the petitioner ; if so, what is its effect, and (4) Whether defendant No. I is entitled to special costs from the petitioner under section 35‑A, Civil Procedure Code?

6. After examining the evidence adduced by the parties the leaned District Judge held that both the allegations regarding adultery were proved. He further held that the wife was living away from the petitioner without any reasonable cause. On these findings he concluded that the petitioner‑husband was entitled to a decree nisi for the dissolution of his marriage with the respondent. On these findings he further held that no question arose of awarding any special costs to the wife under section 35‑A of the Civil Procedure Code.

7. The confirmation of the decree nisi has been opposed before us by Mr. R. A. Jeremy on behalf of respondent No.

1. The main contentions raised by the learned counsel are as follows:‑ (i) That the District Court at Lyallpur had no jurisdiction in the matter for the reason that according to the averments appearing in the petition itself, it was clear that the parties had last resided together in Montgomery, (ii) that under section 10 of the Divorce Act the only ground on which a husband can pray for the dissolution of his marriage is that the wife has been guilty of adultery, and accordingly it was unnecessary and irrelevant for the learned District Judge to frame an issue on the question whether the wife had refused to live with the husband without lawful and reasonable excuse, and (iii) that, in any case, both the charges of adultery are not at all substantiated on the record.

8. The facts relevant to the question of jurisdiction are contained in paragraphs 7, 8 and 17 of the petition. In paragraph 7 it is stated that on the closure of the Dow Memorial Hospital, Gujrat, where the wife was employed as a doctor, she came to live with the petitioner in 1960 and stayed with him for one night at Irrigation Bungalow, Doranpur, near Shorkot in the Jhang District, where the petitioner was posted at that time as a Canal Ziledar. It is further stated in this paragraph that she again visited him in December 1960 on the occasion of his brother's marriage in Chak No. 424/J. B. in the Lyallpur District, which is the ancestral home of the petitioner. On this occasion she stayed with him for four days. The next paragraph (namely, paragraph 8) deals with the year 1961 and recites that in 1961 Dr. Dorothy had taken up service with the American Mission Hospital at Montgomery on a five years' contract, and the petitioner visited her there in May 1961. The petitioner also managed to get himself transferred to Montgomery in July or August 1961, but on learning of his transfer to that place, the wife gave up service with the Mission Hospital at Montgomery and went back to Gujrat to set herself up as a private medical practitioner. In paragraph 17 the averment made by the petitioner is that the parties last resided together in the petitioner's Chak No. 424/J.B. situate in District Lyallpur and, therefore, the Court of the District Judge at Lyallpur, was competent to hear and decide this case.

9. In the written statement filed by the respondent wife the contents of paragraph 7 are admitted regarding the visit of the wife to the petitioner at Irrigation Bungalow, Doranpur in October 1960, and again to Chak No. 424/ J.B. in December 1960 on the occasion of the marriage of the petitioner's brother. As regards paragraph 8 some of the assertions made by the petitioner are denied, but in the present context it is only necessary to state that the petitioner's visit to Montgomery in May 1961 is admitted. Finally, as regards paragraph 17, the written statement contains only a brief reply to the effect that "para. 17 is formal".

10. It will be seen that, in the first place, the averment on the question of jurisdiction, as contained directly in paragraph 17 of the petition, was not denied in the written statement, and from this it can be inferred that it was accepted by the respondent wife that the parties had indeed last resided together in the petitioner's Chak No. 424/J.B. situate in District Lyallpur. In these circumstances, the District Court at Lyallpur clearly had jurisdiction to try this matter.

11. It was, however, contended by Mr. Jeremy, the learned counsel for the respondent, that the question of jurisdiction was essentially a matter for the Court to consider, irrespective of any objection which may or may not be taken in this behalf by one or other of the parties. In support of this proposition the learned counsel referred us to Kershaw v. Kershaw (I L R 12 Lah. 214) in which it was indeed observed by the learned Judges that "in cases under the Divorce Act the question of jurisdiction is of paramount importance and does not fall to be determined purely on allocation of the onus of proof. In these cases, it is the duty of the Court, apart from any objection that might have been taken by one or other of the parties, to enquire into and set out in the judgment facts which show clearly that it possesses jurisdiction to pronounce a decree for dissolution of marriage, Durand v. Durand (1870) 14 W R

416. It is, therefore, necessary to examine the matter independently of the form in which the issue was cast". 11‑A. It is submitted by Mr. Jeremy that even though the respondent did not specifically controvert the averment made in paragraph 17 of the petition on the question of jurisdiction, yet it is clear from the facts recited in paragraphs 7 and 8 of the petition itself that the parties last resided together at Montgomery in May 1961, and that their residence in Chak No. 424/J. B. of the Lyallpur District in December 1960 was prior to their last residence at Montgomery. It is, therefore, contended by the learned counsel that only the District Court at Montgomery could take cognizance of this matter.

12. We think that the proposition of law stated by Mr. R. A. Jeremy is correct, supported as it is by authority. Although by section 45 of the Divorce Act all proceedings under the Act between party and party have to be regulated by the Code off Civil Procedure, yet the application of this Code has been specifically made subject to tire provisions of tire Act, and according the prohibition contained in section 21 of the Civil Procedure Code to the effect that "no objection as to the place of suing shall be allowed by any appellate or revisional Court, unless such objection was taken in the Court of the first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice", cannot be invoked in the present case. According to the definition of the term "District Court" given in subsection (3) of section 3 of the Divorce Act, it is clear that the District Court competent to try a matrimonial dispute of this nature is the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together. If the conditions mentioned in this subsection are not fulfilled, the District Court concerned would not have jurisdiction to try the dispute, and this position would prevail irrespective of the fact whether objection to the Court's jurisdiction was or was not taken by one party or the other. Such being the case, we consider that the objection now taken by Mr. Jremy on the point of jurisdiction has to be examined.

13. According to Mr. Jeremy, the facts of this case make it clear that the parties never had a permanent matrimonial home, with the result that they either met at the place where the wife was working as a doctor, or at the place where the husband happened to the employed for the time being, apart from their short meeting at Chak No. 424/J. B. in the Lyallpur District, where the parents of the husband reside. It is submitted by the learned counsel for the respondent that in such circumstances the phrase "last resided together" appearing in subsection (3) of section 3 of the Act, has to be interpreted to mean "where they last happened to be together in a mare physical sense". On this view of the matter, the contention of the; learned counsel is that the parties last resided together at Montgomery in May 1961 as stated in paragraph 8 of the petition, In support of this contention Mr. Jeremy has placed reliance on Kershaw v. Kershaw, Bright v. Bright (I L R 36 Cal. 9 64) and Murphy v. Murphy (I L R 45 Bom. 547),

14. In the two cases, Bright v. Bright, and Murphy v. Murphy, the Court was dealing with parties neither of whom had a permanent residence anywhere and accordingly it was held that the phrase "last resided together" may be taken to mean, in tie peculiar circumstances of those cases, as "last lived together". In Bright v. Bright Fletcher J. observed that by was taking this view "not without hesitation". We consider that these two cases are clearly distinguishable from the facts of the instant case. It! is true that the petitioner was liable to transfer, as a Government servant, from one place to another, but he is not a person who could be described as one without a permanent home. It is in evidence that after solemnising the marriage in village Tapiala in the Sialkot District the wife was taken to the petitioner's home in Chak No. 424/J.B. in the Lyallpur District. It is also admitted that the petitioner's parents reside in this Chak, and the marriage of the petitioner's brother was also celebrated in this Chak. The letter Exh. D, 7 written by the petitioner on October 16, 1957 to his brother shows that he was writing it from Chak No 424/J.B., where he was convalescing after illness. Even in the present petition the petitioner has described himself as a resident of Chak No. 424/J.B., Tehsil Toba 'Tek Singh, District Lya1pur. In these circumstances, it is clear to us that the petitioner has a permanent residence, namely in this Chak, and ordinarily, keeping in view the social conditions prevailing in this Province, the permanent matrimonial home of the parties would be this Chak in the Lyallpur District.

15. The question then is where, in these circumstances, did the parties last reside together as contemplated by subsection (3) of section 3 of the Divorce Act?

16. In the case of Kershaw v. Kershaw the learned Judges observed that as the word "reside" had not been defined in the Indian Divorce Act and as it does not possess any technical meaning, it must be taken to have been used in its ordinary acceptation in which it conveys the idea, if not of permanence, at any rate of some degree of continuance. Quoting from Jogendra Nath Banerjee v. Elizabeth Banerjee ((1898) 3 C W N 250) the learned Judges went on to say that "the residence to which the Act points must be some thing more than occupation during occasional and casual visits within the local limits of the Court, more especially where there is a residence outside those limits marked with a considerable measure of continuance". Again, the same view was taken in Flower v. Flower (I L R 32 All. 203) where it was held that a mere temporary sojourn in a place there being no intention of remaining there, will not amount to residence in that place within the meaning of section 3 of the Act.

17. We are in respectful agreement with the conclusions reached in Kershaw v. Kershaw and the other two cases mentioned above that a person who has abode elsewhere but who comes to a place for a short period as a casual visitor cannot be said to reside there. Now, in the present case the petitioner's visit to meet his wife Dorothy at Montgomery in May 1961 was obviously a casual visit and on the basis of that visit alone it could not be said that the parties had last resided together at Montgomery. On the contrary, the petitioner's permanent residence being in Chak No. 424/J. B. in the Lyallpur District, and that place being in the ordinary course the permanent matrimonial home of the parties, the fact that the respondent wife was in that Chak with the petitioner in December 1960 seems to us to indicate that it was this Chak where they last resided together. If the respondent wife had been willing to live with the petitioner, this would obviously have been their permanent residence. We consider, therefore, that the District Court at Lyallpur had jurisdiction to deal with this matter.

18. The second contention raised by Mr. Jeremy, namely, that it was unnecessary and irrelevant for the learned District Judge to examine the causes which have kept the parties apart, has to be accepted in view of the clear provisions contained in section 10 of the Divorce Act which prescribes only one ground on which the husband can seek dissolution of his marriage, namely, that the wife has been guilty of adultery.

19. We now take up the question whether the charges of adultery have been proved on the record or not. The first allegation in point of time relates to adultery with a Canadian national named Mike Bester. The relevant averments in the petition are contained in paragraph 6 thereof, and are to the effect that while employed at the Dow Memorial Hospital, Gujrat, during the years 1958 to 1960 the respondent developed illicit connections with Bester who was working as a Supervisor of the Shadiwal Project in the Gujrat District. This man was a constant visitor to her and, apart from other occasions, he definitely committed adultery with the respondent on the 16th of February 1958. In support of these allegations the petitioner produced four witnesses, namely, Muhammad Shafi (P. W. 2), George Mclaren (P. W. 3), Walter David (P. W. 4) and Victor Samual (P. W. 11). The last named witness, namely, Victor Samual, has been regarded by the learned District Judge as being unreliable for the reason that he had written a letter (Exh D. 1) to the respondent asking her to meet him at Lyalipur Railway Station on the 17th of July 1964 at 8‑30 a.m. in connection with his evidence in the present proceedings. From this letter it appears that he wanted to have some sort of a deal with the respondent before appearing as a witness on behalf of the petitioner, and he also hinted in this letter that he was being coerced to give evidence in this case. Mr. Yaqoob Awan, the learned counsel appearing for the petitioner, was not able to persuade us that the view taken by the learned District Judge regarding the credibility of this witness was not correct. As a result, the charge of committing adultery with Bester has to be decided on the basis of the evidence of the remaining three witnesses.

20. Muhammad Shafi (P. W. 2) was employed by H. G. Acres & Company who were the consultants for the Shadiwal Hydro Project near Gujrat Town, and for whom Bester was working as a Supervisor. According to this witness, Bester was living single at Shadiwal and he and the respondent were on visiting terms. However, Muhammad Shafi never saw Bester and Dr. Dorothy in any compromising position. His evidence, therefore, only establishes the fact that Dorothy and Bester knew each other well and used to visit each other.

21. The second witness, namely, George Mclaren (P. W. 3), %as employed as a motor driver in the Mission Hospital, Gujrat, where Dorothy was working. He used to take Dorothy in his car to Shadiwal to the house of Bester, and these visits used to take place almost every week‑end. This man even took Dorothy and Bester to a place called Pabbi for an excursion and during their stay at Pabbi he saw Dorothy and Bester sitting together "with their backs reclining against each other". According to him, Dorothy did not stay with Bester during the night, but Bester's car also used to come and fetch the respondent, and he could not say as to what happened on those occasions. In cross‑examination he admitted that during the excursion at Pabbi Dorothy and Bester were accompanied by Sister Nicoll. It appears to us that the evidence of George Mclaren again establishes that there was a close association between Dorothy and Bester, that they visited each other, and that they even went out on excursions together. According to Mclaren, mutual visits between Dorothy and Bester were a regular feature and there was apparent intimacy between the two, although Mclaren never saw them committing sexual intercourse. 22.The next witness in this series is, as already stated, Walter David (P. W. 4) who was employed as a motor driver by Bester's firm at Shadiwal, and he used to come to fetch Dorothy, whenever there was a film show or a dinner at Shadiwal. According to Walter David, Dorothy used to stay at Bester's house until about 10 p.m. when there was a film show, and until midnight or later when there was a dinner. He has stated that on certain occasions several guests were invited by Bester to his dinner. However, at other times Dorothy used to be the only guest. This man then made a significant statement in examination‑in‑chief to the effect that "the respondent spent a Christmas night with Mr. Bester", In cross‑examination on this point he did state that "on the Christmas night Dr. Dorothy alone was not the guest. There were some other persons also who had been invited to the dinner". It was contended by Mr. Jeremy that the statement made by this witness in examination‑in‑chief bad to be read along with the information given by him in cross‑examination, and when the two are read together, it would show that Dr. Dorothy did not spend the night alone with Bester. We regret we cannot subscribe to this view, as the statement in the examination‑in‑chief seems to be very clear that Dorothy spent the Christmas night with Bester. In cross‑examination Walter David has simply elucidated that there were other persons who had been invited to the dinner, but in relation to those other persons there is no aver ment that they also spent the night with Bester or in his house. It seems to us, therefore, that this statement does give rise to the inference that Dorothy stayed the whole night on that particular occasion with Bester.

23. However, Walter David's evidence goes further to the effect that many a time Bester and Dorothy used to travel together from Shadiwal to Gujrat or vice versa and whenever he brought Dorothy to Shadiwal she used to walk into the house of Bester, and similarly whenever Bester came to the house of Dorothy he used to go upstairs into the house. It is true that David stated further that on those nights, when Dorothy came to attend dinners at the house of Bester, she used to be taken back soon after the dinner but his evidence leaves no doubt at all as to the degree of intimacy which had come to exist between Dorothy and Bester. They were constantly visiting each other and Dorothy was a regular guest at all functions taking place at Bester's house. Bester's car was always coming to fetch her from Gujrat to Shadiwal and to drop her back.

24. It is pointed out by Mr. R. A. Jeremy, the learned counsel for the respondent, that even though the learned District Judge had dubbed Victor Samual as unreliable, yet he had taken into account a statement made by this witness to the effect that Dorothy and Bester had gone to India together. This grievance of the learned counsel is justified as once Victor Samual is regarded as an unreliable witness, then the statement made by him cannot be used against the respondent. However, even apart from the statement of Victor Samual, it was contended by Mr. Jeremy that the facts deposed to by the other witnesses did not establish that the respondent committed adultery with Bester. The learned counsel also submitted that there vi as no evidence regarding the particular date, namely, the 16th of February 1958, mentioned in the petition. According to Mr. Jeremy the mere fact that Dorothy and Bester were on visiting terms did not lead to any irresistible inference that they also indulged in sexual intercourse with each other.

25. The principles which apply in the matter of assessment of evidence in cases of this kind have been elucidated in several authorities and we consider that it will be useful, at this stage, to make a reference to these principles, before we draw our final conclusions from the evidence discussed above. In Captain S. I. Davidson v. Norah MacDonald Davidson (62 I C 782) it was stated that "it was a fundamental rule that in a suit for dissolution of marriage it is not necessary to prove the direct fact of adultery. The Court may presume adultery when it is satisfied that a guilty attachment subsisted between the parties, and that opportunities occurred when a guilty intercourse might with ordinary facilities have taken place". This rule was followed in Mrs. D. William Kallen v. Mr. K. W. William Kallen and another (A I R 1933 Lah. 728). More or less similar observations were made in George Arthur Canning Hearsey v. Anna Marguerite Hearsy and another (132 I C 773) in which it was said that "it is a fundamental rule that it is not necessary to prove the direct fact of adultery. In every case almost, the fact is inferred from circumstances that lead to it by fair inferences as a necessary conclusion. But the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion". Finally, a Full Bench of the Lahore High Court observed in Geyer v. Geyer (28 I L R Lah. 867) that "it is not necessary that there should be direct evidence of adultery before a marriage can be dissolved. Association coupled with opportunity and evidence of illicit affection or familiarity creates an inference upon which the Court can act. The Court can also act on admissions of adultery by the principal respondent, which have been corroborated by the material on the record."

26. From the authorities cited above, it is clear that in order to prove a charge of adultery, it is not necessary to lead direct evidence, as it is not always easy to have such evidence available. Accordingly, the charge can be proved by circumstancial evidence suggesting a guilty association and illicit affections between the wife and a stranger, and the presence of such opportunities as would give rise to a reasonable presumption that intercourse might have taken place. Judged in the light of these principles, we find, ourselves in agreement with the conclusions reached by the learned District Judge about the nature of relationship that came to exist between Dorothy and the co‑respondent Bester. The two were not, in any manner, related to each other. Dorothy was living alone at Gujrat as an estranged wife of the petitioner, and Bester was living alone at Shadiwal. Dorothy became a regular guest at all the functions and parties held by Bester, whose car was constantly fetching Dorothy from Gujrat to Shadiwal. On several occasions Dorothy alone was the dinner guest of Bester, and on one Christmas night she remained with him. They used to go out on excursions together and even though some other persons may have been present on those occasions, yet their behaviour with each other suggested physical intimacy, namely, their sitting together for a considerable period with their backs reclining against each other. This constant association between the two and the informality with which each used to walk into the house of the other lead to a reasonable inference that guilty association and affection had come to exist between them, and there were opportunities when sexual intercourse might have taken place, especially on occasions when Dorothy was the sole dinner guest of Bester, and when she spent a Christmas night with him. In these circumstances and for these reasons we would uphold the finding of the learned District Judge that the charge of adultery with Bester stands proved against the respondent‑wife Dorothy.

27. We now proceed to consider the second charge of adultery with Mazhar Ali of Gujrat. We find that here Mr. Jeremy is on stronger ground. The allegation on this point is contained in paragraph 9 of the petition to the effect that "on going to Gujrat defendant No. 1 has started a nominal private medical practice. She is, however, living in adultery with Mazhar Ali, defendant No. 3, son of Nawab Asghar Ali, in Kothi Nawab Sahib, Gujrat. She is now putting up in the premises of defendant No. 3". From this paragraph it will be seen that the allegation related to Gujrat but it is surprising that the evidence led at the trial sought to prove the commission of adultery with Mazhar Ali at Montgomery. The witnesses belonging to Gujrat, who knew the movements of the respondent‑wife, did not make any incriminating statement with regard to Mazhar Ali and it seems that, faced with this situation, the petitioner obtained some evidence with regard to the respondent's conduct at Montgomery, but this was not the case set up in the petition. Ch. Azmat Ullah Khan, Additional District Magistrate, Gujrat who appeared as P. W. 1, had, at one stage, tried to intervene in the dispute between the parties, and he gave a clean chit to Mazhar Ali, as well as to the respondent‑wife. Muhammad Shafi (P. W. 2) also stated that he had never seen Dorothy moving about with Mazhar Ali. Similar statements were made by George Mclaren (P. W. 3) as well as by Walter David (P. W. 4) and Muhammad Aslam (P. W. 5). Evidence was also produced by the respondent to show that she was, in fact, not living at all in the house of Mazhar Ali c r his father Asghar Ali; on the contrary, she was a tenant of one Zafar Ali who appeared as R. W.

2. The petitioner therefore, completely failed to prove his allegation that the res pondent Dorothy was living at Gujrat in adultery with Mazhar Ali.

28. The evidence regarding the commission of adultery with Mazhar Ali at Mongomery is also unconvicing. The two witnesses who are relevant in this behalf are Fazal Din (P. W. 6) and Bannerji (P.W. 10). Fazal Din has deposed that he is a contractor working at Montgomery and that sometime in June 1961 Dorothy came to his house at about 5 p.m. in a Tonga and requested him to keep her guest at his house for the night, as she was not allowed to keep male guests with her in her quarter in the hospital. This guest was Mazhar Ali of Gujrat and he stayed at the house of Fazal Din for one night. The next morning Fazal Din met Bannerji (P.W. 10) in the Bazar, and the latter told him that the young man named Mazhar Ali was a person of doubtful character. It appears that the evidence of Fazal Din was intended to show that Mazhar Ali visited the, respondent at Montgomery in June 1961, but Fazal Din's evidence does not at all establish the existence of any guilty attachment between Dorothy and Mazhar Ali. Mazhar Ali does not say that the two behaved suspiciously in his presence or that Dorothy also spent the night with Mazhar Ali in Fazal Din's house.

29. S. K. Bannerji (P. W. 10) has deposed that one day Dorothy brought Mazhar Ali to his house and said that he should be kept by Bannerji for the night as she could not keep him at the hospital, that Bannerji agreed to do so, and that when they were all having dinner, Bannerji noticed that Dorothy and Mazhar Ali were on intimate terms. He has gone on to state that Dorothy also stayed with Mazhar Ali in his guest house for the night and the next morning he asked them to quit because he thought that their staying together in his guest house was improper. He stated that he accommodated Dorothy in this matter as his son was under treatment at the Mission Hospital where Dorothy was employed. It seems to us that this man's evidence can hardly be accepted as he does not appear to be a man of any moral scruples on his own showing. He knew that Dorothy and Mazhar Ali were not related to each other, that one was a Christian and the other was a Muslim, and yet he agreed to their spending the night together in his guest house. It seems to us that the evidence of such a witness can hardly be accepted as sufficient for proving an allegation of adultery, especially when the allegation made in the petition related to Gujrat and not to Montgomery. It seems difficult to believe that Mazhar Ali, would follow Dorothy to Mission Hospital, Montgomery, so as to be put up in the house of a stranger like Bannerji or Fazal Din for the night, thus creating a situation where these persons should come to know of the guilty association existing between him and Dorothy. We consider, therefore, that this charge must fail, firstly for the reason that it was not made in the petition, and secondly for the reason that the evidence in support thereof is highly unsatisfactory and unconvincing. It is also to be noted that the learned District Judge erroneously observed that Mazhar Ali had not appeared as a witness to refute the allegation made against him. As already stated, Mazhar Ali did appear as R. W. 5 and denied the allegations made against him. In fact, he asserted in his examination‑in‑chief that he regarded Dorothy as a mother and respected her as such.

30. The learned counsel for the respondent submitted in the end that, as would appear from paragraph 4 of the petition, the petitioner was seeking to have his marriage dissolved as early as 1955 when Dorothy went to England for further studies, and it was, therefore, obvious that the present petition was nothing but a fabrication so as to bring the case within section 10 of the Divorce Act by adding charges of adultery. We are unable to accept this argument fur the reason that paragraph 4 has to be read in its proper context, and when that is done, all that it amounts to saying is that as the respondent was refusing to come and live with the petitioner and instead decided to proceed to England for further studies, he approached the Lord Bishop of Lahore for a divorce. This paragraph cannot, in our view, be construed as meaning that the petitioner was out, at all costs, to obtain a divorce from the respondent, even by fabricating false charges of adultery. The paragraph, in fact, describes the desperate situation in which the petitioner found himself on account of Dorothy's persistent refusal to live with him.

31. For the reasons given above, we hold that the District Court at Lyallpur had jurisdiction to try this matter, and that the petitioner has succeeded in proving that the respondent Dorothy committed adultery with the co‑respondent Bester in the year 1958, when Dorothy was working at the Dow Memorial Hospital, Gujrat, and Bester was employed on the Shadiwal Project, a few miles away from Gujrat Town. Accordingly, the petitioner is entitled to have his marriage dissolved under section 10 of the Divorce Act. We, therefore, confirm the decree nisi granted by the learned District Judge in this behalf. A. H. Decree nisi confirmed.