P. Chakravartti, C.J.
1. This is a reference under Section 17 of the Indian Divorce Act by the learned District Judge of Burdwan of a decree passed by himself on the 6th of March 1958, whereby he dissolved a marriage between one Myrtle Evelyn Mary Barrett and one Adrian James Benjamin Barrett. The decree has been submitted to this Court for confirmation.
2. The parties are of the Roman Catholic faith and were married according to Christian rites on the 31st of December, 1949. They appear to have been rather young at the date of the marriage, the respondent being only 23 and the wife 22. After the marriage, they lived first at Sindri and then at Sitarampur till July, 1953, when, for the first time their married life began to crack up.
3. The present proceeding was initiated by the wife. Her case was that in July, 1953, she found her husband and one Sheila Nichols sharing the same bed in the matrimonial home. This naturally led to an estrangement and the parties separated, each going to live with his or her parents. In September 1953, the wife again found the husband in a compromising position with the same Sheila Nichols, but this time, in a descried butcher's shop at Dhanbad. It was impossible after the discovery of this second instance of infidelity, that they should live together and in fact, they have not done so. The wife alleged that in October, 1953, her husband disappeared from Dhanbad and along with him the girl Sheila Nichols also disappeared. She however hoped that her husband would return after sometime, but he did not and in spite of frantic enquiries made in several quarters, she had been unable to discover his whereabouts. Since October, 1953, to the date of her application which was the 22nd May, 1957, her husband had neither been seen nor heard of nor had he done any thing to support her. On those allegations, she asked for a divorce on the ground of adultery coupled with desertion.
4. Unfortunately, this case suffers from the same defect as we have noticed in other cases regarding the evidence and findings on the question of the jurisdiction of the court dealing with the application. It was proved satisfactorily that the couple last resided together within the territorial jurisdiction of the learned Judge and, therefore, one of the facts which must be found before a court can assume jurisdiction in a matrimonial matter was properly found. The other fact required to be found is the Indian domicile of the husband which would also be the wife's domicile. On that point the evidence before the learned Judge was inconclusive, because all that the wife said was that her husband had been born in India and had an Indian domicile. Since India has changed, a mere statement that someone was born in India would not prove that he was born within the Indian Union and, therefore, domicile by birth cannot be found on a statement of that character. It is true that the wife also said that the husband had the domicile of the Indian Union, but what she meant by that is, by no means, clear. If the husband had been born in what was formerly a part of India, but is no longer so, it would be necessary to establish that he had made some place in the Indian Union his permanent home and had no desire to leave it. Ordinarily, we would have felt compelled to remand the case to the learned Judge for a proper finding on this fundamental question, but we find that the wife used the term 'Indian Union' in her petition and also in her evidence in describing her own place of birth. I think, therefore, that we shall not be stretching the language of her evidence too far, if we take it as meaning that her husband had been born within the Indian Union and that he had continuously lived there. Nevertheless, we would like to draw the attention of the learned Judge to the necessity of insisting on clear evidence on the question of domicile if, in future, an occasion arises for him to deal with a matrimonial case. A mere repetition of the formula that the parties are of Indian domicile by lay witness ought not be regarded as sufficient, but the necessary facts on which a finding of domicile can properly be based should also be elicited. We do not, for the reason I have already given, wish to make this defect in the evidence and in the learned Judge's finding a ground for sending the case back and adding a further chapter to the proceedings.
5. There remains the question of the merits of the case. The wife examined only herself, but no other witness. The husband did not appear. Ordinarily, in view of the nature of the allegations, one would hesitate to proceed on the uncorroborated testimony of the wife, but it appears to us that the instances of adultery on which the wife relied could not possibly have been witnessed by any other person. No one else could have seen the husband misconducting himself with a strange woman in the bed-room of his own house and it would be too much to expect that, except the wife who found herself unexpectedly there, anybody else would normally be near about the butcher's shop where the second instance of misconduct took place. That being so, and the learned Judge who ad seen and heard the witness having accepted her evidence as true, we think that there was proper material on which he could arrive at the finding which he has recorded.
6. There can be no question that if the wife's evidence is believed, there has been adultery and also desertion for a period exceeding two years. The decree for divorce was therefore, properly made.
7. For the reasons given above, we accept the Reference and confirm the decree.
8. As there is no appearance on behalf of the husband before us, there will be no order for costs.
S.C. Lahiri, J.
9. I agree.
B.N. Banerjee, J.
10. I agree.