1. This is an appeal by the defendant against the decision of the learned Subordinate Judge of the Assam Valley Districts, dated the 3rd January 1916, reversing the decision of the Munsif of Dabrugarh. The plaintiff instituted the suit under the provisions of Section 42 of the Specific Relief Act against the sole defendant, her late husband, claiming, first of all, for a declaration as to her marriage with the defendant and, secondly, for a declaration as to the legitimacy of four children whom she had given birth to or whom; she alleged to have given birth to and of whom she alleged that the defendant war the father, The learned Judge-of the lower Appellate Court has found that the plaintiff was divorced 20 or 21 years ago, by the defendant and has, therefore, refused to make a declaration as to the marriage of the plaintiff. As regards the declaration of the legitimacy of the children, he has found that the eldest daughter who is not a party to these proceedings was born shortly after the divorce, and, therefore, without any evidence as to the facts leading up to that birth, he has made a declaration in the absence of that young lady that she. is a legitimate offspring of the plaintiff and, the defendant. Whether this eldest daughter wishes to have such a declaration, we do not know, and also it follows that the declaration having been made in that form with-oat the Court knowing anything as to the circumstances of the case has cast a stigma of illegitimacy on the three other children, that the plaintiff alleges she has given birth 'to. It seems to me quite clear that a decree like that cannot stand. Section 42 of the Specific Relief Act speaks about a person entitled to any legal character. A wife has got a legal character.' But how can the mother of a child have a legal character as to whether her child, who is not a party to the suit, is or is not legitimate It is quite clear that the legal character would be vested in the daughter or the daughters as to whether the parties are their parents. The appeal must, therefore, be allowed.
2. Then, as to the cross-objection preferred by the wife, it is quite clear that the ex-wife--if I may use the expression--and a person who ceased to hold the legal character of a wife 22 years ago has not got a legal character to ask the Court to make a declaration under the provisions of Section 42 of the Specific-Relief Act. There is no legal character in having been a wife and then divorced. The cross-objection must, therefore, be disallowed.
3. In any case, in a suit of this nature, with regard to the legitimacy of the children who are not before the Court, the discretion of the Court under the provisions of Section 42 of the Specific Relief Act ought not to be exercised except on a most careful review of all the facts and circumstances relating to the birth of the children. No consideration has been given to those facts at all in this case, and I think in every view of the case the judgment of the Court of appeal below as regards that ought not to be allowed to stand.
4. The present appeal mast, therefore, be allowed and the cross objection dismissed. The appellant must have his costs in this appeal. We make no order as to the costs in the cross-objection.
Shamsdl Hoda, J.
5. I agree.