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Rev. M. Bonhiem Vs. Ka Trolimon - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1931Cal1,129Ind.Cas.576
AppellantRev. M. Bonhiem
RespondentKa Trolimon
Cases ReferredHebbethwaite v. Hebblethwaite
Excerpt:
- .....married to a khasi girl, was deported from this country by reason of the war. he has sent to the deputy commissioner of khasi and jaintia hills an application for divorce, which has been treated as a petition, the ground being that the wife has been living with another man for a number of years. the petitioner produced no evidence in support of the petition. but the deputy commissioner of khasi and jaintia hills issued summons upon the wife and upon the co-respondent. he appears to have examined them and they both say that they were living together for a certain number of years during the time when the husband ' had been repatriated. there appears to be no doubt about the facts;but the procedure, as the deputy commissioner himself acknowledges, is irregular, to say the least of it. no.....
Judgment:

Rankin, C.J.

1. In this case, the husband, who appears to be a resident of Holland and who was married to a Khasi girl, was deported from this country by reason of the war. He has sent to the Deputy Commissioner of Khasi and Jaintia Hills an application for divorce, which has been treated as a petition, the ground being that the wife has been living with another man for a number of years. The petitioner produced no evidence in support of the petition. But the Deputy Commissioner of Khasi and Jaintia Hills issued summons upon the wife and upon the co-respondent. He appears to have examined them and they both say that they were living together for a certain number of years during the time when the husband ' had been repatriated. There appears to be no doubt about the facts;but the procedure, as the Deputy Commissioner himself acknowledges, is irregular, to say the least of it. No evidence having been given for the petitioner, it was unnecessary for the respondent or the co-respondent to give any evidence at all and no decree could be made upon the petition in the absence of evidence. The Deputy Commissioner, if minded to assist the petitioner in this case, although he could not, in my opinion, treat them as compellable witnesses on a question of adultery, could consistently with Sections 51 and 52, Divorce Act, ask them whether they were willing to give evidence to the effect that they[ had been living together; and, if they were willing, he could have treated them as witnesses for the petitioner and pronounced a decree. The law upon the question whether a respondent or co-respondent can give evidence against themselves of an adultery seems to be contained in India in the sections which I have mentioned, namely Sections 51 and 52; and there are cases upon the subject which are worth considering. One case is De Bretton v. Da Bretton [1881] 4 All. 49 and there is the English case of Hebbethwaite v. Hebblethwaite [1869] 2 P.& D. 29. In the present case, it does not appear that the respondent or the co-respondent was ever asked whether they were willing to give evidence for the husband and it rather appears that they were treated as parties to the suit who were obliged to give evidence. There is, however, a fatal objection to the decree, which we are asked to confirm. Not only is there no evidence that the domicile of the husband is in India, but all the facts disclosed point to the contrary. Act 25 of 1926 prevents any decree of dissolution of marriage being possible in the present case. The decree of the Deputy Commissioner of the Khasi and Jaintia Hills must be set aside and the petition dismissed.

C.C. Ghose, J.

2. I agree.

Pearson, J.

3. I agree.


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