1. This is an application to confirm a decree passed by the District Judge of Jhansi, dissolving the marriage between G.T. Cockman and Olga Myrtle, his wife, the co-respondent on the record being one L/Cpl. C.G. Baker of the Air Force. The petitioner alleged adultery with soldiers unknown and with L/Cpl. Baker. Evidence was called on the first issue as to adultery with soldiers unknown, but the learned Judge has found that there was not sufficient evidence on this point. We agree with him. As to the adultery with L/Cpl. Baker, there is on the record a letter from him to the petitioner in which he admits adultery with the respondent. That letter owing to Section 32, Clause (3), Evidence Act, is admissible as evidence in the case, as Baker is in England, and his admission of adultery would have exposed him to a criminal prosecution. There are also several letters from the wife to the petitioner, in which she clearly confesses a guilty affection for the co-respondent. She however does not admit adultery. There is further evidence of guilty familiarity between the. respondent and the co-respondent, which the learned Judge believes and finally there is evidence that since the petition was filed the respondent had a miscarriage and that she produced on that occasion a foetus six weeks old. That miscarriage took place on 24th October 1932, the petition being filed on 16th February 1932. The petitioner gave evidence of non-access to his wife at the material date. This was corroborated by his mother. On the question of adultery we think there is enough evidence to satisfy the Court that adultery had been committed by the respondent. There was clear evidence of guilty affection an admissible admission by the co-respondent of adultery and also evidence of guilty familiarity between the respondent and the co-respondent. In addition to this there was ample opportunity for this couple to have satisfied their guilty affection. On this ground alone we may confirm the decree of the lower Court.
2. The learned Judge however bases his decision particularly upon the fact of the miscarriage taking place so long after the filing of the petition, and the evidence of non-access given by the husband. It was thought that the well known case of Russell v. Russell (1924) A.C. 687 decided by the House of Lords might apply to this case. The rule in Russell v. Russell (1924) A.C. 687, is authority for the proposition that evidence of non-access may not be tendered by a spouse and received by a Court with the object or possible result of bastardizing a child of the marriage. The rule in, Russell v. Russell (1924) A.C. 687, only applies however where there is the danger of bastardizing the living issue of the married coupla. It has been held in England in Fosdike v. Fosdihe (1925) 182 L.T. 672 and in Holland v. Holland (1925) P. 101, that the rule in Russell v. Russell (1924) A.C. 687, does not apply in the case of a miscarriage or a still-born child, the reason being that in neither of these leases is there any danger of bastardizing the living issue of the married pair. We do not need therefore to consider in this case whether the rule in Russell v. Russell (1924) A.C. 687 applies to India or not. This would necessitate a consideration of the effect of Sections 112 and 120, Evidence Act. It is to be noted that Section 3, English Act of 1869 allowing parties in divorce proceedings to give evidence which is somewhat similar to Section 120, Evidence Act, was considered in Russell v. Russell (1924) A.C. 687 and it was held that evidence of non-access on a proper construction of the section was not admissible. The evidence of the husband of non-access being admissible against his wife corroborated as it is by the evidence of the mother and of the miscarriage in October 1932 amply proves adultery by the respondent in this case. We therefore confirm the decree passed by the lower Court.