1. This is a reference by the learned District Judge of Delhi for the confirmation of the decree 'nisi' granted to the petitioner lor the dissolution of her marriage with the respondent.
2. The petitioner, Joan Bernal Smith, was married to the respondent, Geoffery Charles Thomas, by the Registrar of Marriages at Allahabad on the 19th March, 1941. The respondent was eraployed in the Locomotive Department of the East Indian Railway at the time of his marriage but he joined the Indian army shortly thereafter and was transferred first to Kanpur and then to Assam and Java. He returned to Delhi on leave preparatory to demobilisation in December, 1946, and lived with the petitioner till the 4th April, 1947, On the latter date he went to Lucknow with the ostensible object of seeing his parents who were living there. He never came back. The petitioner addressed several communications to him but was unable to elicit a single line in reply. In May, 1950, Mr. Mathias, a friend of the respondent told the petitioner that he had met the respondent at a party given by another friend at Calcutta, that the respondent spoke to Mr. Mathias and that he introduced a lady who was accompanying him as his wife. As a result of this information the petitioner brought the present petition for the dissolution Of her marriage with her husband the respondent. The learned District Judge came to the conclusion that the respondent had deserted the petitioner and was living in adultery with another woman at Calcutta and he accordingly granted the petition as 'ex parte' decree 'nisi' the confirmation of which is now being sought.
3. The statement of the petitioner satisfies me that her husband deserted her early in the year 1947, but there is no convincing evidence on the file to justify the conclusion that the respondent committed adultery with a woman in Calcutta or with any one else. The only evidence that has been produced on this point is the statement of Mr. Mathias, a friend of the respondent and a resident of Delhi. He deposes that in February, 1950 he went to a party given by a friend of his in Calcutta when the respondent came to speak to him. He was accompanied by a lady whom he introduced to the witness as his wife. Everybody referred to her as Mrs. Thomas. The witness asked the respondent as to what had happened to his first wife. The respondent replied that they had been divorced long ago. I have no reason to doubt the correctness of the statement made by Mr. Mathias, but even if every word that he has said were accepted as true I am unable to hold that the charge of adultery has been established. A person who sets out to establish the charge of adultery must do so by clear and positive evidence. Jt is not necessary that direct evidence should be produced for it is open to a party to prove it by indirect or circumstantial evidence or partly by direct and partly by circumstantial evidence; but jf the factum of adultery is sought to be proved by circumstantial evidence the evidence should be such as would be incompatible with the innocence of the party charged. In any case it should lead a just and reasonable man to the conclusion that adultery has been committed. The evidence that has been produced in this case does not appear to me to satisfy this test. The fact that the respondent introduced a woman to Mr. Mathias or to certain other person as his wife at a party where a number of people had assembled does not in my opinion constitute an admission by the respondent of the fact that he had committed adultery with her. It is easy to imagine circumstances in which a person may wish a friend of his to pass off as his wife. The view taken by the learned District Judge that the respondent is living in adultery with a woman at Calcutta on the ground only that the respondent introduced, her as his wife cannot therefore be supported.
4. For these reasons I am of the opinion that the decree 'nisi' granted to the petitioner Cannot be confirmed.
5. I agree.
6. I agree.