1. Mrs. Muriel Blanche Hartley asks this Court to confirm the decree nisi granted to her by Mr. Badhwar, District Judge of Saharanpur, for dissolution of her marriage with Jack Fleming Hartley, on the ground of adultery and cruelty.
2. As the record stood when it came before us, we should have had no hesitation in refusing to confirm the decree. Both Mr. Badhwar, the District Judge who tried the case, and Mr. Wahid, who appeared before him and in this Court on behalf of the petitioner, would almost seem to have been under the impression that, if a petition for divorce is unopposed, it is sufficient basis for a decree if there is evidence that the respondent has committed adultery and has been cruel to his wife. There is not in the judgment one single word to suggest that the learned Judge gave one moment's thought to such very material questions as whether there had been unexplained delay in filing the petition, or whether there had been connivance on the part of the petitioner at the alleged adultery.
3. Paragraph 4 of the petition alleged:
that during the last two years or so one Miss Dorothy Gardiner was introduced into the home by the respondent, the said Miss Dorothy Gardiner continually living with the petitioner and the respondent wherever they were posted except with one or two breaks for a few days at a time.
4. Paragraph 5 alleges that on divers occasions during these two years the respondent committed adultery with the said Miss Dorothy Gardiner. Subsequent paragraphs set out the charges of alleged cruelty. In para. 14 the petitioner made the usual statement that there was no collusion or connivance.
5. The facts stated, then, in this petition plainly suggested a long continued course of adultery committed by the respondent over a period of two years, that adultery being well known to the petitioner and being committed actually with the woman living in the house practically throughout the whole period. It moreover suggested that the petitioner had left the house of her husband not in any way because she was displeased at the adultery but because she began to be afraid of her husband's violence.
6. The petitioner Mrs. Hartley gave evidence on 28th January 1929. She stated that in 1926 (neither the Judge nor her counsel took the trouble to ask to be more precise) her husband brought Miss Gardiner from Kathgodam to Bareilly, where the parties were then stationed, for a dance. The petitioner stated that since that time Miss Gardiner had stayed with her and her husband wherever they went, and that from the very outset respondent and Miss Gardiner were on intimate terms, things becoming very noticeable in November 1927. The petitioner alleged that she saw the respondent and Miss Gardiner kissing each other and Miss Gardiner sitting on Mr. Hartley's lap. Neither the Judge nor the petitioner's counsel Mr. Wahid took the trouble to record or get it recorded (even if the statement was made at all) when these incidents occurred. The next statement is to the effect that 'in the hot weather they used to sleep in the same room, while my bed was put aside' There is nothing in this to show to which year reference was being made. Mr. Wahid, petitioner's counsel, when asked by us informed us that it referred to the hot weather of 1927. If that were so, then, in the absence of some very convincing explanation, this statement would in itself be sufficient to wreck the petitioner's chances of obtaining her divorce, particularly when coupled with the failure to obtain any explanation from the petitioner as to whether she objected to this arrangement or not. The petitioner next states that
whenever Mr. Hartley went out on tour Miss Gardiner accompanied him. Whenever Mr. Hartley had to go to Delhi he took his dinner with us at 9 O'clock at night, after which both Mr. Hartley and Miss Gardiner used to go to the railway station and sleep in an empty carriage to catch the morning train at 4 a.m.
7. Mr. Hartley's duties as a Police Inspector on the railway manifestly required him to be constantly on tour, and this statement of the petitioner would equally plainly suggest that during all this period of association between Mr. Hartley and Miss Gardiner they were constantly going out all over the place on tour together, without any explanation at all being asked for or obtained from the petitioner as to why she did not resent it or leave her husband. We have, however, taken a further statement from Mrs. Hartley from which it has appeared that instead of Mr. Hartley and Miss Gardiner having made a number of trips to Delhi, as is suggested by the words 'whenever Mr. Hartley had to go to Delhi', he only took Miss Gardiner with him once to Delhi, and Mrs. Hartley seized the opportunity of his prolonged absence to leave his house, taking the children with her.
8. This is all that Mrs. Hartley said in her evidence to the District Judge on the subject of adultery. It is manifest that with her statement left as it was by the District Judge and her counsel Mr. Wahid, there was ample ground for the conclusion that mrs. Hartley had really been a consenting party during the best part of two years to the long continued course of adultery between her husband and Miss Gardiner, and upon this we should have had no hesitation in refusing to confirm the decree. From the questions we put to Mr. Wahid it appeared that he had given no serious thought whatever, if indeed any, to the questions of delay and connivance. Fortunately, however, for herself, the petitioner was in Court and, therefore, in a position to hear the inevitable comments on her evidence as it stood. At first she had remained seated at the back of the Court, but upon hearing our comments she came forward and took a seat at the side of Mr. Wahid. From an answer which she gave to a remark from one of the members of this Bench, we thought it desirable to take a further statement from her. She explained that though Miss Gardiner was brought to her house for the purpose of attending a dance in March of 1926, Miss Gardiner was in fact a nurse by profession and the petitioner was within a few months of her confinement and Miss Gardiner stayed on to help the petitioner through her confinement and no doubt generally with the children and household work.
9. Actually before the child was born the petitioner's husband was transferred to Agra. Miss Gardiner also went there with them and took up a post in a hospital for two or three weeks, visiting the petitioner and her husband during the weekends. After the three weeks Miss Gardiner came to live with the petitioner and her husband permanently, at first her father and subsequently her brother paying something towards the cost of her keep. About the end of 1926 all three of the persons concerned went to Saharanpur where they still were, when in June 1928, the petitioner left her husband's house, and very shortly afterwards filed the present petition. Mrs. Hartley says that for a long while she had never remarked anything wrong between her husband and Miss Gardiner, the latter of whom had been very good to her when ill. She explained that the hot weather to which she had referred, and which she has not been asked to specify more precisely in her previous statement in the trial Court, referred not to the hot weather of 1927 but to the hot weather of 1928 which put a wholly different complexion on this incident. She further has explained to us that it was not till April 1928 until a few weeks before she left the house, that her husband took to lying down in the same room with Miss Gardiner and making the petitioner lie down in another room. The earliest incident of cruelty which she mentions dates back from May, or possibly March 1928, and she says that it was not till then that she began to suspect that there was undue intimacy between her husband and Miss Gardiner; and finally she says that it was his taking Miss Gardiner with him to Delhi and threatening to shoot her, the petitioner, if he found her in the house on his turn, that finally drove her from the house and caused her to file the present petition.
10. It is manifest that the evidence that she has given in this Court throws an entirely new light on the case. While on the record as it was left by the District Judge and her counsel, Mr. Wahid, there was ample reason for dismissing the petition on the grounds of delay and connivance, we see no reason in the light of the further statement which we have obtained from the petitioner, for refusing to confirm the decree. No further application beyond this is before us.
11. We cannot leave this case, however, without putting on record our strong disapproval of the total omission by the District Judge to consider the issues of delay and connivance and his negligent failure to get on record with any precision the necessary facts; and the same comment must indubitably apply to the conduct of the case by the petitioner's counsel, Mr. Wahid, who even here did not appear to have any proper appreciation of the gravity of the omission. We make the decree nisi absolute.