1. This is a petition by Mrs. Esme Anderson for a declaration that the form of marriage through which she went with the respondent on 17th November 1922 may be declared null and void under Section 18, Divorce Act. It is combined-with a prayer for the custody of the children and for an order for their maintenance till they attain majority. It was remarked in the case of Betteridge v. Curry  29 P.R. 1913 that an application for custody and maintenance of the child should be made by a separate petition. But there the order for declaration of nullity had been made by the District Judge and amounted to a preliminary decree only. Under the English practice a prayer for the custody of children in a void marriage may be inserted in the petition (Langworthy v. Langworthy  11 P.D. 85, quoted in Vol. 16 of Halsbury's laws of England, p 499). The respondent has not been prejudiced in any way by the hearing of this issue at the same time as that of the main petition, and no objection has been raised on behalf of the respondent. In these circumstances I consider that there is no irregularity in disposing of both matters at the same proceeding.
2. Most of the circumstances are admitted and the only contested issue between the parties is the custody of the children. When the petitioner went through the form of marriage with the respondent at the Baptist Chapel, Howrah, on 17th November 1922, the respondent had obtained a final decree for the dissolution of his marriage with his first wife, who was still living. The copy of that decree is on the file and it is dated 2nd November 1922. So it is clear that six months had not elapsed from the date of that final decree before the respondent went through the form of marriage with the petitioner. These facts are proved by the admissions of the parties, the marriage certificate of the petitioner and the copy of the final decree in the respondent's petition for dissolution of marriage.
3. According to the evidence of the petitioner and of her mother Mrs. Tilbury (and indeed of the respondent) all the parties concerned were ignorant that it was necessary for six months to elapse after the final decree before the respondent was free to marry again. The parties lived together as man and wife from 17th November 1922 until 23rd June 1928, They had no knowledge that their marriage was void until April 1928 when in casual conversation Mrs. Tilbury learnt from a Mr. Luke in connexion with another case that her daughter's marriage was illegal and this information she passed on to the respondent. From that date, according to Mrs. Anderson and Mrs. Tilbury, the attitude of the respondent towards both of them completely changed. Mrs. Tilbury, it should be said, had been living with them at intervals during the whole of their life together. On 27th April very shortly after the respondent had discovered the illegality of the marriage, he sent Mrs. Tilbury a letter (Ex. 4) asking her to leave the house. He says in it that he had asked her to leave before, and she accordingly left. The petitioner continued to live with the respondent until 23rd June. With regard to an incident that happened on that date there is a controversy between the parties. The petitioner says that she was talking to their neighbour, Mr. Bennett, outside their quarters about 10 p.m. when the respondent came back from the line and accused Mr. Bennett of coming out of the petitioner's room. The respondent then treated the petitioner very badly and knocked her down and she lay unconscious for some hours. When she came to her senses the respondent told her that he would give her till 5 o'clock in the morning to leave the house with the children, but he had already removed a number of clothes and other property of hers. She went to the Grand Hotel with her children and wired for her mother who came to her.
4. The respondent's story which has been admitted as a reply to the allegations made by the petitioner in her petition for alimony is a somewhat different one. It is briefly to the effect that on the night in question he came home just in time to see his wife and Mr. Bennett turn off the switch in the verandah, go indoors and lock all the doors of the quarters. For about an hour he crept round trying to get in, and finally lifting up the Venetians saw his wife in bed with Mr. Bennett. He knocked his knee accidentally against the door and disturbed them, and the petitioner rushed out and called the cook from the back verandah and sent him to the front to see who was there. Meanwhile Mr. Bennett rushed out of the bathroom and the petitioner again barricaded herself. The respondent has brought two witnesses to support this story, but of these the cook only says that the respondent woke him at 3-30 a.m. and gives no support at all to the story of being awakened by the petitioner and sent round to the front at about 11-30; in fact he says that he was sleeping in the kitchen, and not a few paces from the door, as the respondent says, while the sweeper says that the respondent woke him up as he came from the station, as he generally did, and that the witness then saw Mr. Bennett rush out of the bathroom. This is altogether inconsistent with the respondent's story. The accounts of both parties may be exaggerated as to what happened on the night of the 23rd June but I am certainly not favourably impressed with the respondent's story and believe that it is almost entirely invented. It is possible that he may have suspected the petitioner of misconduct, but this is the utmost that can be said for him. He has not proved her to be unfit to have the custody of the children. On the other hand it is certain that after the discovery about the illegal marriage, the petitioner's position was altered very much for the worse, and her story that the respondent's behaviour changed towards her and her mother from that date is a very probable one. The fact that the respondent at once proceeded to turn out Mrs. Tilbury seems to be significant. The respondent felt that the petitioner had no legal claim on him, and that he need not treat her as his wife any longer, or recognize her people as his relatives.
5. There are two children who must be held to be illegitimate. The boy Claude Edward Anderson is aged six years and the girl Pauline Caroline Anderson is aged 5 years. The chief consideration in passing orders must be for the welfare of the children. I consider that the evidence shows that the respondent has taken advantage of the discovery of the illegal marriage to treat his wife at any rate with less consideration than formerly. Though it may be that her account of his brutality both to her and the children may be exaggerated, I have to take into account thus he is the party at fault, because it was his place to learn the legal effect of his own decree before marrying the petitioner. I have further to consider that his work takes him away from home fairly constantly and though this might not affect the children when they are at school it will prevent him from keeping up a proper home for them during the holidays. On the other hand he has not made out any reason why the mother should be considered unfit to be in charge of them. He has said that she may marry again. But the same remark applies to him. He has not apparently considered the advisability of retaining the custody of the children by marrying the petitioner as he might apparently legally do now. Taking all these circumstances into consideration I think it is proper to allow the petitioner to have the custody of the children. As regards an allowance for their maintenance the respondent has admitted that he receives from the railway a varying amount that averages about Rs. 350 a month after deductions. The petitioner cannot claim maintenance from him, and in these circumstances I think that a fairly generous allowance should be ordered for the children. I therefore direct that he pay to the petitioner an allowance of Rs. 40 per mensem for the maintenance of each child. If it is proved that the railway company contribute towards the maintenance and education of the children he may apply for a reduction of this sum.
6. I therefore give the petitioner a decree declaring that her marriage with the respondent is null and void. She will receive her costs of this petition from the respondent according to the scale laid down by the High Court Rules. The petition must be considered to be a contested one.