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William K. Hewson Vs. Ethel M. Hewson - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberCivil Reference No. 18 of 1923
Judge
Reported inAIR1924Bom397; (1924)26BOMLR467; 85Ind.Cas.774
AppellantWilliam K. Hewson
RespondentEthel M. Hewson
Excerpt:
.....must contain an allegation that the parties are domiciled in british india.;where a petition for divorce alleges adultery with a named person and that adultery in not proved by evidence, the petition must be dismissed. a mere submission by the wife that she had become pregnant by home person unknown and had miscarriage would not furnish a around for divorce;per marten j. where a petition for divorce alleges adultery with a named person and also with some person or persons unknown, leave to dispense with the named co-respondent must first be given by the court, before relief can be granted on the petition.;it is permissible for spouses to deny sexual intercourse even when they are living together; but the evidence must be scrutinized with great care. - - the so-called evidence is..........halsbury, vol. ii, p. 429, paragraph 725, and russell v. russell [1923] w.n. 243, which was recently decided by the english court of appeal. it is i think, permissible to give that evidence, but it must be scrutinized with great care; and it will be borne in mind that such evidence, though admissible in a divorce court, may perhaps be inadmissible in legitimacy proceedings where the paternity of the infant is in question.6. but here one most important point of evidence has not been properly proved, namely the alleged miscarriage. the so-called evidence is little better than mere hearsay. i agree, therefore, that this petition must be dismissed. i regret that in the view i take it is impracticable for us to redraft this petition and start matters de nova. the petitioner, if he wishes to.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case the Judicial Commissioner of Sind has passed a decree nisi for dissolution of marriage in favour of the petitioner, William Knox Hewson, on the ground that his wife had committed adultery with some unknown person. It now comes before us for confirmation. In the first place, we may point out that there is no allegation in the petition that the parties are domiciled in British India. Unless it is shown that they are domiciled in British India, the Indian Divorce Act gives no jurisdiction to hear the petition. That is an allegation which ought to be contained in every petition under the Indian Divorce Act. In any event we should have to send the case back if we thought the decree was right, so that the evidence of domicil should be on the record. But we think on the evidence before the learned Judicial Commissioner that the petitioner was not entitled to a decree. He alleged in his petition adultery of his wife with one Sydney Judd, and he further alleged that his wife had become pregnant by the said Sydney Judd and had a miscarriage. The evidence to prove adultery between the respondent and the co-respondent fell very far short of what would be required by a Divorce Court, and accordingly the learned Judicial Commissioner dismissed the petition against him, and quite rightly in my opinion. The only evidence, therefore, of adultery would lie in the submission by the respondent that she had miscarriage, after she had become pregnant by some one other than her husband. The petitioner did not even take the trouble to prove by any evidence that his wife had as a matter of fact a miscarriage. Undoubtedly she was in the hospital for a certain time up to June 6, 1922, and it would have been a simple matter from the hospital records to prove whether or not she had a miscarriage. But there is nothing left on which a decree for dissolution could be granted except the submission, not the admission, of the respondent that she had a miscarriage. We cannot, therefore, confirm this decree. The petition is, therefore, dismissed.

Shah, J.

2. I concur.

Marten, J.

3. AS to the want of jurisdiction in the absence of an Indian domicil reference may be made to the recent case of Wilkinson v. Wilkinson I.L.R. (1923) 47 Bom. 843 : 25 Bom. L.R. 945.

4. Then on the point that the decree is one founded on adultery with some person or persons unknown, the ordinary practice is that leave to dispense with a named co-respondent must first be given by the Court before relief can be granted on such a petition. This will be found in Halsbury, Vol. XXI, pp. 505-6, paragraph 1030. I may also refer to Saunders v. Saunders [1897] P. 89 and Rush v. Rush [1920] P. 242 both decisions of the English Court of Appeal on this point. In the present case no such leave was obtained. Indeed the petition itself does not allege adultery with any unknown person. It is founded solely on an allegation of adultery with the co-respondent Judd which the learned Judge held was not proved.

5. Then as regards the question whether it is permissible for spouses to deny sexual intercourse when in fact, they are living together, I had to consider that point in ('odd v. Codd. : AIR1924Bom132 , 342. I may also refer to Halsbury, Vol. II, p. 429, paragraph 725, and Russell v. Russell [1923] W.N. 243, which was recently decided by the English Court of Appeal. It is I think, permissible to give that evidence, but it must be scrutinized with great care; and it will be borne in mind that such evidence, though admissible in a Divorce Court, may perhaps be inadmissible in legitimacy proceedings where the paternity of the infant is in question.

6. But here one most important point of evidence has not been properly proved, namely the alleged miscarriage. The so-called evidence is little better than mere hearsay. I agree, therefore, that this petition must be dismissed. I regret that in the view I take it is impracticable for us to redraft this petition and start matters de nova. The petitioner, if he wishes to pursue the matter, will have to start again with a new petition, and produce proper evidence to support it. In my opinion these petitions for divorce should be carefully scrutinized or else the risk of fraudulent or collusive decrees being obtained is substantially increased.


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