1. This is the petition of Edna May Olivia Hardless against her husband, Harold Robert Hardless of the 'Sanctuary,' Chunar. The petitioner by her petition claims a dissolution of the marriage on account of the cruelty and adultery of her husband. Both the parties are Anglo-Indians domiciled in India and resident within the jurisdiction of this Court. She also claims custody of her children. The parties were married in the month of June 1927 when the petitioner was 16 years of age. There have been three children of the marriage, one girl and two boys, the eldest child being four years old and the youngest two years old. The petition which was originally defended is now undefended. Mr. Saila Nath Mukerji, counsel for the respondent,, has intimated to the Court that he is unable to put his client in the box' in denial of the charges. The petitioner herself has given evidence, and she has satisfied me both as to the adultery and the cruelty. The husband, who is a handwriting expert, frequently had to be away from home in pursuance of his profession, and in the month of July 1930 he had to go to Kurseong, stopping en route at Calcutta. On his return to Chunar he was ill, and it now has been proved to me beyond any possibility of doubt that he was suffering at that time from the two well known venereal diseases. It is unnecessary to go into the particulars. He was treated by three doctors at different periods, all of whom have given evidence in this case. Eventually in October 1931 it was discovered that the petitioner herself was also suffering from venereal disease. I am satisfied that this venereal disease was given to the petitioner by the respondent. The fact that a husband has comunicated venereal disease to his wife is in law sufficient evidence of adultery. It also amounts to legal cruelty. Every fact therefore necessary for the petitioner to prove in order to be entitled to a dissolution of marriage has been proved in this case.
2. An interesting point arose during the case. All the doctors claimed privilege, alleging that the relationship of doctor and patient were confidential. The law on this matter is clear. Section 126, Evidence Act, gives protection to a barrister, attorney, pleader or vakil with regard to communications made to him in the course of his employment as such by a client. There is no protection afforded by the Evidence Act to a doctor as such. When a doctor is called to give evidence he is ' in the same position as any other person not exempted by the Act. It is his duty to assist the Court in every way possible and to disclose to the Court all the information in his possession relevant to the matter in issue. I therefore had to disallow the plea of the doctors that they were entitled to withhold their evidence in this case. The petitioner having proved both cruelty and adultery, is entitled to a decree nisi, and I so pronounce. She will also have the custody of the three children to which she is entitled. In this case, as the children are of tender years, it is very important that they should be under the control of their mother. Further the mother is living in Allahabad, and facilities for schooling are more easily obtained here than eleswhere. The husband I understand is coming to reside in Allahabad. The husband and wife have agreed that the wife should give to the husband reasonable-access to his children, and I have no doubt that the petitioner will carry out her undertakings. If any dispute arises in future as to the children, I give either party liberty to apply.
3. With regard to the costs, a sum of of Rs. 350 has already been awarded as costs in this case. Capt. Carleton has put on the record receipts almost to talling this amount, and he assures me that more than this amount has-actually been disbursed in this_ case. I order therefore that the costs in this case should be fixed at Rs. 350. Of this amount of Rs. 350 the respondent has handed over today in Court the sum of Rs. 250. The other Rs. 100 must be paid within two months of today's date. With regard to alimony pendente lite, I have had the evidence of the petitioner and the respondent I am satisfied that the respondent's average income is at least Rs. 3000 per annum. The petitioner has not only herself to keep, but has to provide for her three children. I think the proper order, in this case is that the respondent should pay to the petitioner on 15th day of each month commencing with 15th November 1932, the sum of 150 as alimony pendente lite.