(Delivered by Satyanarayana Rao, J.)
This matter comes before us under S. 17 of the Indian Divorce Act IV of 1869 for confirmation of the decree nisi granted by the learned District Judge of Madurai.
The husband of the first respondent is the petitioner, and he claimed in the petition dissolution of marriage between himself and the respondent on the ground, that she was guilty of adultery with the co-respondent. The husband is a Hindu and the wife is a Christian. Their marriage was solemnised according to Christian rites on 22nd August, 1934 at Madurai, and Ex. A.1 is the marriage certificate. They lived at Calicut for three years after the marriage and there was no trouble till 1938.
The husband examined as many as four witnesses to establish the charge and on the respondent's side the sole witness was the wife. On this evidence the learned Judge accepted the case of the petitioner that from 1949 onwards she was living; in terms of illicit intimacy with the co-respondent and the charge of adultery was established. He also found that the counter charges levelled by the wife against the husband were not established and that there was no collusion or connivance or condonation to warrant the refusal of a decree nisi for dissolution. The learned Judge also took into consideration the delay in the matter of the filing of the plaint, but he was of the view that the delay should not count against the petitioner, as he was under a mistaken belief that the notice of the 5th November, 1942 was sufficient to bring about dissolution of marriage between them two and that he had commenced the proceedings soon after he became aware of the illicit intimacy between the respondent and the co-respondent, which commenced from 1949. In the circumstances he thought that there was no reason to reject the petition on the ground of undue delay.
The respondent is represented by Counsel here and he urges that by reason of the delay the decree could not be justified as also the finding of the learned Judge regarding the adultery and that the charge of adultery was also not established by the evidence, as the witnesses examined on the side of the petitioner were interested. We are unable to agree with these contentions. There is overwhelming evidence of disinterested witnesses, particularly of P.Ws 2 and 4, whose testimony convinces one that the charge of adultery was proved to the hilt.
On the question of delay we agree with the reasoning of the learned District Judge in paragraph 25 of his judgment and that the petitioner was really under the bona fide belief that the notice of the 5th November, 1942 was sufficient in law to bring about a dissolution of the marriage and that he realised his error only after he consulted his lawyer in 1951. Further, the act of adultery relied on is of recent date, 1949, and the petitioner came to know of it only in May, 1951 and therefore there is no delay in the matter, which would justify the refusal of the dissolution of the marriage. We think that the view taken by the learned District Judge is correct and his findings are amply supported by the evidence on record.
One question of jurisdiction was raised in the Court below that the petitioner being a Hindu and the respondent being a Christian, proceedings under the Act could not be instituted, unless both of them are Christians. But this contention was negatived by the learned District Judge and we think in that he is right. S. 2 of the Divorce Act was amended in 1927 by including in it the words “or respondent.” That is, the amended section reads as follows:
“Nothing hereafter contained shall authorise any Court to grant any relief under this Act except where the petitioner (or respondent) professes the Christian religion.”
which clearly shows that if either of them is a Christian, it would be sufficient to invoke the jurisdiction of the Court under the Indian Christian Divorce Act for relief under it and this was the view taken by the Full Bench of the Bombay High Court in Dalal v. Dalal(1). We therefore think that the District Court had ample jurisdiction to deal with the matter and the decree nisi granted by the District Judge must be confirmed. The decree nisi is accordingly confirmed.
V.C.S