1. This matter comes before us under Section 17, Indian Divorce Act 4 of 1869 for confirmation of the decree nisi granted by the learned District Judge of Madurai.
2. The husband of the first respondent is the petitioner, and he claimed in the petition dissolution of marriage between himself and the respondent on the ground, that she was guilty of adultery with the co-respondent. The husband is a Hindu and the wife is a Christian. Their marriage was solemnised according to Christian rites on 22-8-1934 at Madurai, and Ex. A. 1 is the marriage certificate. They lived at Calicut for three years after the marriage and there was no trouble till 1938. In 1938 the husband saw the wife writing a letter to one Gnanamuthu Isac. He caught hold of the letter, which is dated 27-2-1938, Ex. A. 2. Gnanamuthu Isac was found in the house of the petitioner in July 1938, when he went away to his office and returned suddenly to his house. When asked to explain his presence, the wife could not give a satisfactory answer, and as he suspected her conduct, there was some quarrel between them and he gave her a beating. After he lelt the house the wife wrote a letter dated 14-7-1938, Ex. A. 3, in which she stated,
"There will be no connection whatever between you and me from today 14-7-1938. Hereafter you shall not take any notice of me for any reason whatever. I shall conduct myself in the said manner in your affairs. This has been written out of my own will and not on account of prompting from any other individual."
3. Leaving this letter in the house, she left the house, leaving the three children, which were born to them. The husband discovered this letter and made several searches to find out the whereabouts of the wife. She thereafter went from place to place in the course of her employment as school mistress, and it is in evidence that she came into illicit intimacy with several people. The names of Ratnam and Anantaraman were mentioned in the course of the evidence. Finally by 1949 she came into contact with the co-respondent. Before 1942 the husband made attempts to take back the wife, but the wife persisted and she refused to go back to the house. Finally on 5-10-1942 the husband issued a registered notice to the wife, Ex. A. 7, in which ho called upon the wife to return back to the house within 15 days, failing which he would institute proceedings against her. This was followed by another letter dated 5-11-1942, Ex. A. 8, in which he stated that as she did not return as required by the previous notice, he divorced her on that day and thereby informed her that thereafter she would have no connection whatever with him and the children. He also alleged in that letter that she will have no interest whatever in the moveable and immoveable properties that are in his possession. As he omitted in this letter to refer to the insurance monies, he issued a further notice on 27-1-1943, Ex. A. 9, in which he asserted that she would have no claim to the insurance amount in respect of which he was paying the premium.
These registered letters were not replied to by the wife and in 1951 while he was under the mistaken impression that a mere notice would be sufficient to bring about a divorce, he had occasion to go and consult a vakil in the matter, who advised him that that letter would not be enough to bring about the necessary result and that he had to institute necessary proceedings under the Divorce Act. As a result of that advice, he instituted these proceedings under Section 10, Divorce Act, in the District Court, Madurai, on 4-7-1951 alleging that the wife was guilty of adultery with the co-respondent. In the written statement filed by the wife she in her turn imputed adultery to the husband and also asserted that, in fact, he married another woman and as she died, he was making preparations to marry another, that it was with that object that these proceedings were instituted by the husband and that they were not 'bona fide'. She also repudiated the charges levelled against her.
4. The husband examined as many as four witnesses to establish the charge and on the respondent's side the sole witness was the wife. On this evidence the learned Judge accepted the case of the petitioner that from 1949 onwards she was living in terms of illicit intimacy with the co-respondent and the charge of adultery was established. He also found that the counter charges levelled by the wife against the husband were not established and that there was no collusion or connivance or condonation to warrant the refusal of a decree 'nisi' for dissolution. The learned Judge also took into consideration the delay in the matter of the filing of the plaint, but he was of the view that the delay should not count against the petitioner, as he was under a mistaken belief that the notice of 5-11-1942 was sufficient to bring about dissolution of marriage between them too and that he had commenced the proceedings soon after he became aware of the illicit intimacy between the respondent and the co-respondent, which commenced from 1949. In the circumstances he thought that there was no reason to reject the petition on the ground of undue delay.
5. The respondent is represented by counsel here and he urges that by reason of the delay the decree could not be justified as also the finding of the learned Judge regarding the adultery and that the charge of adultery was also not established by the evidence, as the witnesses examined on the side of the petitioner were interested. We are unable to agree with these contentions. There is overwhelming evidence of disinterested witnesses, particularly of P. W. 2 and 4, whose testimony convinces one that the charge of adultery was proved to the hilt.
6. On the question of delay we agree with the reasoning of the learned District Judge in para. 25 of his Judgment and that the petitioner was really under the 'bona fide' belief that the notice of 5-11-1942 was sufficient in law to bring about a dissolution of the marriage and that he realised his error only after he consulted his lawyer in 1951. Further, the act of adultery relied on is of recent date, 1949, and the petitioner came to know of it only in May 1951 and therefore there is no delay in the matter, which would justify the refusal of the dissolution of the marriage. We think that the view taken by the learned District Judge is correct and his findings are amply supported by the evidence on record.
7. One question of jurisdiction was raised in the Court below that the petitioner being a Hindu and the respondent being a Christian, proceedings under the Act could not be instituted, unless both of them are Christians. But this contention was negatived by the learned District Judge and we think in that he is right. Section 2 of the Divorce Act was amended in 1927 by including in it the words "or respondent". That is, the amended section reads as follows:
"Nothing hereafter contained shall authorise any court to grant any relief under this Act except where the petitioner (or respondent) professes the Christian religion."
which clearly shows that if either of them is a Christian, it would be sufficient to invoke the jurisdiction of the Court under the Indian Christian (sic) Divorce Act for relief under it and this was the view taken by the Full Bench of the Bombay High Court in -- 'Nina Dalai v. Merwanji', AIR 1930 Bom 385 (FB) (A). We therefore think that the District Court had ample jurisdiction to deal with the matter and the decree 'nisi' granted by the District Judge must be confirmed. The decree 'nisi' is accordingly confirmed.