1. The eighth issue raised in the lower Court is in these terms:-'Has the plaintiff been guilty of adultery with Sorabji Nowroji Actor, or Edalji ArdeshirTeacher, and others.' The finding of the Delegates is as follows:-'No satisfactory evidence regarding Meherbai plaintiff's misconduct with any. particular individual, but there is evidence sufficient to raise a strong presumption of her general misconduct, that is, of adultery.' It is contended before us that this issue was improperly framed inasmuch as by charging the plaintiff with misconduct not only with the two persons named in the issue but with 'others,' it required her to meet a vague charge founded on mere suspicion. It does not appear that the issue in the form in which the last part of it was framed was objected to in the Court below. Evidence 'appears to have been led on it by both parties. It is too late now for the plaintiff to raise the objection that the issue should have been confined to the charge of adultery with the persons1 named in it. Nor is the finding of the, Delegates vague and indefinite. They substantially hold adultery on the part of the plaintiff proved.
2. But it is urged that the ' finding in question is not a valid ground for rejecting plaintiff's suit for divorce, because the adultery of a petitioner suing for dissolution of marriage or judicial separation is not mentioned in Section 32 of the Parsi Marriage and Divorce Act (XV of 1865) among the legal grounds which are specified as disentitling the petitioner to a decree. It is argued that as Section 31 of the English Matrimonial Causes Act (20 & 21 Vic. c. 85), from which the language of Section 32 of the Parsi Marriage and Divorce Act appears to have been substantially borrowed, expressly includes the adultery of a petitioner suing for dissolution of marriage among the legal grounds on which the Court may, in its discretion, decline to dissolve the marriage, whereas the Parsi Act studiously omits to include such adultery among those grounds, the plain inference is that the Indian Legislature intended that a petitioner suing for divorce under the latter Act should not be nonsuited merely on the ground of his or her adultery during the marriage. But Section 32 of the Parsi Act is not, whereas the corresponding sections of the English Act are, exhaustive. The latter specifies all the legal grounds on which a petitioner suing for divorce shall or may be nonsuited. The former enumerates only some of them and then says that if ''there is no other legal ground why relief should not be granted, the Court shall decree a divorce or judicial separation accordingly.' The words 'other legal ground,' construed as they must be on the principle of ejusdem generis, mean any other legal ground which is of the same kind as any of the legal grounds previously mentioned. As the section borrows its language substantially from the, English Act so far as it enumerates the legal grounds, and as the latter Act treats the adultery of a petitioner suing for divorce as a ground similar in character to certain other grounds which are the same as those enumerated in the Parsi Act, I think it a reasonable construction of the latter Act to 'hold that the Legislature intended that where such adultery is proved, relief by way of divorce should be refused.
3. This construction is supported by what we have ascertained to be the invariable practice on the Parsi Matrimonial Side of this Court. Counsel appearing in this case have brought to our notice at least eight causes, tried in that Court, in each of which one of the issues raised was whether the petitioner suing for divorce or judicial separation was proved to have been guilty of adultery and therefore not entitled to the relief claimed.
4. The last point urged in support of this appeal relates to the question of costs. The lower Court has by its decree ordered each party to bear his own. It is contended that the Court ought to have made the husband pay the wife's costs because even where the wife suing her husband for divorce fails, as a rule the husband is made to pay her costs. But the rule is not inflexible and in this case we are not satisfied that the lower Court exercised its discretion wrongly. The decree is confirmed with costs.
5. I agree that the order of the lower Court should be confirmed, but I feel great difficulty in construing the words 'other legal ground.' Perhaps they were inserted in the section to give scope to Parsi custom where it could be so fully established as to come under the head of customary law. Whatever the explanation however, it is clear that adultery on the wife's part is regarded amongst Parsis as a reason for refusing her application for divorce. This is shown by what has been gathered from former Parsi Matrimonial cases and from the decision of the Parsi delegates in this particular case.