John Wallis, C.J.
1. It has always been the practice of this Court, since the passing of the Indian Divorce Act of 1869, to post and dispose of decrees sent up from the District Court for confirmation after notice to the parties without requiring the petitioner to appear and move for confirmation. I see no sufficient reason to depart from this practice, which appears to me to give effect to the intention of the Legislature. It was in the interest of poor suiters that jurisdiction in divorce was conferred upon District Judges instead of on a Central Divorce Court as in England, and it would be a restriction of the boon to require a petitioner who has obtained a decree in a District Court, to take proceedings for confirmation in the High Court. The mere appearance of the petitioner would be no protection against collusion which is guarded against by the other provisions of Section 17, and as regards the possibility of the parties having died or come together again subsequent to the decree of the District Court the serving of notice seems a sufficient safeguard.
2. As to the facts the petitioner has no doubt failed to prove the specific act of adultery shortly after the marriage on which he relied, besides which condonation has been proved. But with regard to the allegation that the petitioner was not the father of the infant born to the respondent in September 1913, the District Judge, who saw the witnesses, has accepted the evidence of witnesses who, if believed, in my opinion sufficiently prove non-access on the part of the petitioner and misconduct on the part of the respondent. The case really turns on whether the husband had access to his wife about the time the child was conceived. The parties had been separated some months before, when at the instance of the missionaries an effort was made to reconcile them. Plaintiff's 2nd witness speaks to going with the petitioner to her mother's house and finding her absent and to staying the night and their going over to Achutapuram, where she was keeping a night school for adult men as well as boys. There does not seem to have been any opportunity of access on that occasion, and the evidence, in my opinion, negatives anything of the kind. The fact of her having previously to this contracted a venerial disease which she did not accuse her husband of having given her and of her keeping the night school shows the sort of woman she was. I think the adultery is sufficiently proved and would confirm the decree.
3. I agree.
Sadasiva Aiyar, J.
4. This ease is described as a 'case referred under Section 17 of Act IV of 1869 for confirmation of the decree nisi passed by the District Court of Godavari in Original Suit No. 15 of 1914' on the file of that Court. I have to make two remarks in connection with this. In the first place, Section 14 of the Act IV of 1869, does not call the decree pronounced by the District Court a decree nisi. It is only a divorce decree passed by the High Court on its original side which is called a Decree nisi in Section 16 of the Act. In the second place, there is no provision for the District Court referring the decree to this Court. Section 17 merely says 'that every decree for dissolution made by the District Judge shall be subject to confirmation by the High Court.' I am not aware of any rules passed by the High Court under Section 62 of the Indian Divorce Act enabling the District Court to make any such reference. I might further add that in this case I find that a head clerk of the District Court, as the officer in charge in the absence of the District Judge from the station, has made this reference on the 13th May 1914. Even holding that a reference by the District Court is contemplated by the Act and we are bound to act on such reference, I think we must decline to act on a reference made by the head clerk of the District Court who is left in charge of the administrative duties and of the establishment during the absence of the District Judge.
5. I further think that even if a reference is admissible and is properly made, the person who wants the confirmation of the decree pronounced by the District Judge ought to make an application to this Court for such, confirmation and without such an application, I am inclined to hold with the Full Bench of the Allahabad High Court see William Arthur Forshaw v. Eunice Geraldine Forshaw 3 Ind. Cas. 969 : 31 A.P 511 : 6 A.L.J. 793 : 6 M.L.T. 96 that we should not confirm the decree passed by the District Judge.
6. I might be permitted to quote the following from that judgment:
We are wholly unable to say whether or not the parties have come to terms and arranged their differences. It may be that since the decree nisi was passed the petitioner and respondent have co-habited and so the adultery has been condoned.
7. I might further add that it may be that one of the parties has even died after the pronouncement of the decree by the District Court which is now nearly a year old. While I am not prepared to say that we have no jurisdiction to consider this case because there has been no proper reference and there has been no application by the party, I think that the practice might be introduced of requiring an application from the interested party. Most of the Indian Christians are, no doubt, very poor and hence, jurisdiction in divorce matters was given to the District Court, so that the expenses and trouble of going to the High Court of Madras and securing attendance of witnesses there might be avoided. But, in such a momentous matter as confirmation of a divorce, often involving the [legitimacy of children, a petitioner might be expected to manifest at least the interest required to apply to the High Court therefor, and if it is too great trouble to go to Madras to put in the application, the rules might provide for his sending it through the District Court.
8. So much for the preliminary difficulties in this case. On the merits also I am inclined to hold that it is not proved that the respondent has been guilty of adultery. The petitioner (husband) is not at all a straightforward witness, and his story that he caught his wife in adultery with a man (now deceased) in broad daylight in a school house a few days after his marriage is not worth a moment's belief. The respondent is no doubt proved to be a bold, immodest woman. Her talking freely to other males and opening and conducting for sometime a school for adult males do show her to be a coquette and flirt, but I am not prepared to hold that she has lived the life of a public prostitute' as stated in paragraph 9 of the petition, in fact there is no evidence at all of her having led a life of promiscuous intercourse with all who sought her. See Roe v. Boe 3 B.L.R. App 9 as to who is a public prostitute. That the petitioner went to her residence in January 1913 is admitted by the petitioner. He says he had no intercourse with her on that occasion. She says, on the other hand, that he had and she attributes to him the paternity of the child born to her in September 1913, between eight and nine months after this visit. He, no doubt, went to her with mediators in order to persuade her to live with him. I, however, do not think it so very improbable that she did allow him to have intercourse with her at that time, though she refused to return to his place to live jyith him continuously. I am not prepared to brand the child born to her in September 1913 as a child born of the adultery of its mother with some unknown paramour, having regard to the stringent provisions of Section 112 of the Evidence Act. That the mediator witness says that to his knowledge there was no access between the petitioner and the respondent when he went to her in January 1913, is of very little value. In Atchley v. Sprigg (1864) 33 L.J. Ch. 345 : 3 N.R. 360 : 10 Jur. (N.S.) 144 : 10 L.T. 16 : 12 W.R. 304 : 143 B.R. 357 it was said that the presumption of a child's legitimacy can be rebutted if it is shown by strong, distinct, satisfactory and conclusive evidence that the husband, whether before or after marriage, had not access to his wife.' In the Barony of Saye and Sele (1848) 1 H.L.C. 507 : 9 E.R. 857, it was held that circumstantial evidence showing that the husband and wife were living separately from each other at such a distance that they could not have had intercourse during the three or four months during which alone the child could have been begotten was sufficient evidence. I do not think that in this case any facts proving non-access beyond reasonable doubt are proved, and I am not prepared on the mere denial of the petitioner to hold that he had no access to his wife in January 1913. I might add that there is clear evidence in this case that the petitioner, who was anxious to get at his wife even in March 1913, has since begun to love another native Christian woman and is, therefore, anxious to get rid of the respondent and that he is not a person of much delicacy of feeling. I would, therefore, on the merits also refuse to confirm the decree.
9. Following the opinion of the majority the decree is confirmed.