Rev. M. Bonhiem vs Ka Trolimon on 9 December, 1929

    Rev. M. Bonhiem vs Ka Trolimon on 9/12/1929

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.