This Court (consisting of the Chief Justice, Newbould and Buckland, JJ.), on 17th November 1924, remanded the case, when the following observations were made by:—
Sanderson, C.J:— In this case we are of opinion that the matter must be remanded to the learned District Judge on the ground that in our opinion the judgment of the learned Judge is not sufficient.
In the first place there is nothing in the learned. Judge's judgment to show that the case comes within the provisions of sec. 2 of the Indian Divorce Act, 1869. That section provides that “Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except in cases where the Petitioner professes the Christian religion and resides in India at the time of presenting the petition.” There is no finding as to the matters referred to therein. The section further provides “or to make decrees of dissolution of marriage except in the following cases (a) where the marriage shall have been solemnized in India; or (b) where the adultery complained of shall have been committed in India.”
All that the learned Judge says in his judgment is as follows:—“I am satisfied of the factum of adultery, and that the Petitioner has in no way connived at or condoned it. The marriage is therefore declared to be dissolved.”
This Court requires specific findings in respect of the material facts which it is necessary for the Petitioner to prove in order to bring the case within sec. 2 of the Divorce Act.
We have referred to this matter on several occasions; and, it is sufficient for me to refer to the case of Singrai Santhal v. Puraigi Santhalni.
In the second place it is not clear to this Court whether the learned Judge has proceeded upon the correct principle in assessing the damages at Rs. 20,000. The learned Judge said: “Apart from any question of sentiment, the wrong inflicted upon him is one for which he deserves substantial compensation, and moreover it is more than likely that he will incur considerable expense in the matter of the disposal of the two children of the marriage.”
For the purpose of stating the correct principle reference may be made to the charge to the jury of the learned President of the Probate Division in the case of Keyse v. Keyse and Maxwell, which is as follows:—
“There is no doubt about the adultery, it has been proved and admitted; and the question therefore that remains for you to consider is what damages, if any, the co-Respondent is to pay. Now I am obliged to explain the principle upon which damages are to be given; and, first, you must remember that you are not here to punish at all. Any observations directed to that end are improperly addressed to you. All that the law permits a jury to give is compensation for the loss which the husband has sustained. That is the only guide to the amount of damages to be given. But, undoubtedly if it is proved that a man has led a happy life with his wife, that she has taken care of his children, that she has assisted in his business, and then some man appears upon the scene and seduces the wife away from her husband, then the jury will take those facts into consideration. But the question in this case, as in so many others, is, whether or not these losses have been cast upon the Petitioner by the action of the co-Respondent. If he did not seduce her away from her husband that makes a very material difference in considering the amount of damages to be given. In considering these questions undoubtedly the conduct of the husband must be looked to. Here the husband and wife had been leading an unhappy life before they parted, and he knew she had no means of living. It is for you to judge whether he had really made any effectual efforts to discover where she was, I mean, in the sense of being such as a man would really take if he had his heart in the inquiry. If you come to the conclusion that he did not make any earnest inquiry after her, that is a fact you could consider when you are considering the question of the damages he has sustained by some man consorting with his wife afterwards. What can any husband expect who has separated from his wife, who, he knows, has no means? What will follow? Why, that in the ordinary course of things she may yield to the temptation of securing support from some other man. Therefore, take those matters all into your consideration in determining whether or not the Petitioner is entitled to damages, and if so, to what amount.
(In the course of the summing-up a juror asked what were the means of the co-Respondent).
The President:—“I am not at all surprised at your asking the question; but that indicates the great misapprehension that exists on this subject. It is not a single case, but it is very often asked. But do you not observe, on the principles that I have explained to you, the means of the co-Respondent have nothing to do with the question? The only question is, what damage the Petitioner has sustained and the damage he has sustained is the same whether the co-Respondent is a rich man or a poor man.”
The case must therefore be remanded to the learned Judge to be dealt with in accordance with the foregoing observations. It may be necessary for him to take further evidence with regard to some of the above-mentioned material facts. That is a matter for the learned Judge.
Newbould, J.:— I agree.
Buckland, J.:— I agree.
On 23rd December 1924 the case came before the District Judge when he observed:—
“My predecessor granted the Petitioner a decree of dissolution of marriage but the case was remanded for a finding whether the Court had jurisdiction and for reconsideration of the question of damages. I have further examined the Petitioner. He is a Christian and was resident in Chittagong at the time when he presented the petition. The marriage was solemnized in Scotland but the adultery complained of took place in Calcutta. This Court therefore has jurisdiction to make a decree of dissolution of marriage, subject to confirmation by the High Court.
It has already been found by my predecessor that the Respondent committed adultery with the co-Respondent, Victor Massey. The damages were assessed at Rs. 20,000 as claimed in the petition. The Petitioner allowed his wife to stay in Calcutta from February 1923 and to take up employment there. He explains his reasons for agreeing to this, viz., the children were being sent to school in Darjeeling, his occupation involves much absence from home and he thought some occupation would be good for her health. He came back to Chittagong about Christmas 1923 and he expected that she would stay with him permanently but shortly afterwards discovered that she had been unfaithful to him in Calcutta and elsewhere with the co-Respondent. I accept the explanation given by the Petitioner but the fact remains that when adultery took place, Mrs. Thomas was not living with her husband. The Petitioner's children had already been sent to school at Darjeeling and the Petitioner will not have to make new arrangements to look after them except during the holidays. Taking into consideration these facts, I assess the damages at Rs. 3,000. The Petitioner is entitled to his costs from the co-Respondent.”
On 13th January 1925 when the findings came after remand the Petitioner appearing in person the following order was passed by the Court.
Sanderson, C.J:— This case was remanded to the District Judge for certain findings. The learned Judge has now come to a conclusion in respect of the matter about which this Court desired the findings, and the result is that, in my opinion, the same should be confirmed.
Newbould, J.:— I agree.
Rankin, J.:— I agree.
P.D