Walter Salis Schwabe, K.C., C.J.
1. In this divorce case the petitioner and the Co-respondent are both engine-drivers. The trial Judge has found the respondent guilty of adultery on the evidence of her having given birth to a child over a year after leaving the petitioner, and granted a decree of divorce. He has exonerated the co-respondent from the charges of adultery brought against him, and dismissed him from the suit with costs. The petitioner asks that the decree be confirmed and appeals against the exoneration of the co-respondent and asks for damages and costs against him. There was a considerable body of evidence against the co-respondent on which the trial Judge refused to act, although he did in the course of his judgment say that in course of time the intimacy between the respondent and the co-respondent appeared to have overstepped the bounds of decency. There was fairly direct evidence of adultery given by the petitioner's mother and son, and this the Judge definitely disbelieved though, in my view, on inadequate grounds. There was also a considerable body of other evidence directed to show inclination to plus opportunity for adultery, acts of familiarity between the two, circumstances under which they were alone together when adultery may have taken place, constant association between the two, meetings arranged at out of the way places, and the like. To this must be added the admitted fact that the respondent gave birth to an illegitimate child, and no evidence or suggestion of any other person being the father was given, and the somewhat curious denials given on oath by the respondent and the co-respondent themselves. She gave no denials in examination-in-chief, but in answer to the co-respondent said ' The co-respondent had nothing to do with me sexually. I have my own resources and live on them '; and he said ' I never did anything to make the respondent misbehave or leave her husband, ' and ' I had no indecent relationship with the respondent when she was at Madura,' and nothing else on the subject. Now, it was definitely alleged that they had for some time been living together in the co-respondent's house. His answer was that his sister and others were living there and that the respondent was a friend of the sister; but no evidence was called to corroborate this. Indeed the respondent devoted attention mainly to proving ill-treatment by the petitioner, and neither seems to have taken much trouble to disprove the adultery alleged. It is possible that this was partly due to expressions that fell from the Judge indicating that he was not satisfied with the petitioner's case. On the evidence there was an overwhelming case against the co-respondent and, loathe as I am to disagree with the trial Judge's findings of fact, the reasons he gives for disbelieving the evidence are so unconvincing, that I think we must reverse his decision and find the co-respondent guilty.
2. There remains the question of damages. The damages in divorce are not punitive. The means of the co-respondent are an irrelevant consideration except in so far as they were of assistance to him in seducing the wife. It is not the intention that a man should make a profit out of the dishonour of his wife. The only question is what the petitioner has lost in his wife. Whether the co-respondent can pay that loss or not is immaterial. When damages have been assessed, in the absence of an order to the contrary, they must be brought into Court and dealt with in pursuance of the Judge's order. They may be ordered to be paid out to the petitioner, but this course is the exception and not the rule. They may be settled on the wife, or on her children, or otherwise dealt with in the 'discretion of the Court on now well established principles.
3. In this case I doubt if the petitioner has lost anything by the act of the co-respondent. The home was clearly an unhappy one owing to the incompatibility between the wife and the husband and the husband's mother. The wife took little or no part in looking after the. petitioner's house or his comfort and he derived little pleasure from her society. She left him long before he commenced proceedings, and it is not proved that the co-respondent in any way persuaded her thereto. She was of easy virtue and of a gregarious and pleasure-loving disposition. There were no children of the marriage to be provided for or the burden of whose up-bringing has been left to the deserted husband. The husband has no doubt been put to some expense in having his marriage dissolved. I do not accept his statement that he has injured his prospects with his Railway Company owing to the co-respondent's association with his wife, and I can find no other element of damages present. He will get his costs here and below and Rs. 100 to cover any loss he has suffered.
4. The decree is confirmed as regards divorce, but varied by finding the co-respondent guilty of adultery with the respondent The appeal will be allowed with costs here and below against the co-respondent. The costs of the co-respondent, if paid, must be returned and the co-respondent must pay Rs. 100 as damages, such damages to be paid to the petitioner.
Coutts Trotter, J.
5. I agree and have nothing to add.
6. I agree.