Sir Barnes Peacock, Kt., C.J.@mdashI think it clear that the co-respondent has no right to be heard in this appeal in opposition to the appeal of Mrs. Kelly. The appeal is on the ground, first, that, upon the evidence, the learned Judge ought to have found that the adultery was not proved. If the co-respondent can appear and oppose on that ground, and say that the Judge was right in finding that adultery was committed, it would be contrary to the prayer contained in his written statement, in which he prayed that the Judge would reject the prayer of the petitioner. The same reasoning applies to the other two grounds of the appeal. It is said by Mr. Piffard, that possibly Mr. Saunders may have an interest in setting aside the decree, on the ground that if the divorce is granted, Mr. Saunders will be obliged to marry Mrs. Kelly; but I know of no legal obligation on the part of the correspondent to marry her, and under these circumstances it appears to me that there is no ground for hearing the co-respondent. It appears to me that there are no grounds for reversing the decision of Mr. Justice Phear, upon the question of fact as to whether adultery was committed by Mr. Saunders and Mrs. Kelly, or upon the ground that that adultery was condoned.
2. The rules upon which the Courts act in cases of this kind were very clearly laid down by Lord Stowell in the case of Loveden v. Loveden 2 Hagg. Con. Rep., 2. He there said: "It is not necessary for me to state much at large the rules of evidence which this Court holds upon subjects of this nature, or the principles upon which those rules are constructed: they are principles so consonant to reason, and to the exigencies of justice, and so often called for by the cases which occur in these Courts, that it is on all accounts sufficient to advert to them briefly. It is a fundamental rule that it is not necessary to prove the direct fact of adultery; because, if it were otherwise, there is not one case in a hundred in which that proof would be attainable: it is very rarely indeed that the parties are surprised in the direct fact of adultery. In every case almost, the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them, of a more obvious nature, and of more frequent occurrence, are to be found in the ancient books. At the same time it is impossible to indicate them universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, upon appearances that are equally capable of two interpretations; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature; they are facts determinable upon common grounds of reason, and Courts of Justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtitles and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same. It is the consequence of this rule that it is not necessary to prove a fact of adultery in time and place; circumstances need not to be so specially proved, as to produce the conclusion that the fact of adultery was committed at that particular hour or in that particular room; general cohabitation has been deemed enough."
3. The appeal was dismissed with costs, and the decree nisi was made absolute.
4. Mr. Creagh applied for permanent alimony, citing Keats v. Keats and Montezuma 1 S. & T., 334, and that the wife might have access to her child.
5. Mr. Marindin, contra, cited Winstone v. Winstone and Dyne S. & T., 246, Ratcliff v. Ratcliff and Anderson 1 S. & T., 467, and Thompson v. Thompson and Sturmfells 2 S. & T., 402, as to access.
Mr. Creagh in reply.
Peacock, J.
6. The cases which have been cited establish that, under the English Divorce Act, the Court has power to award permanent alimony to the wife, even when a husband obtains a divorce on account of adultery committed by her; and I have no doubt that, u/s 37 of Act IV of 1869, this Court may order permanent alimony to the wife under similar circumstances. The first clause of section 37 enacts that the "High Court may, if it think fit, on any decree absolute, declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money, for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, "it thinks reasonable;" and clause 4 says that, in every such case, the Court may make an order on the husband, for payment to the wife, of such monthly or weekly sums for her maintenance and support as the Court may think reasonable."
7. It was contended in the course of argument that the words "obtained by the wife" at the end of the 1st clause of section 37, overrode the whole of that clause; and that, consequently, the power given to the Court to order alimony was only when a decree absolute declaring a marriage to be dissolved should be obtained by the wife. But that is clearly not the grammatical construction of the clause, for two different kinds of decrees are evidently referred to,--the first is on any decree absolute declaring a marriage to be dissolved; the second, following the word "or," on any decree of judicial separation obtained by the wife.
8. I have no doubt that the intention of the Legislature by this section was to give the High Court the same power as the Courts have in England, and that the grammatical construction is the correct one; and consequently that the Court may, if it think fit, on any decree absolute, declaring a marriage to be dissolved on account of the adultery of the wife, make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable.
9. The evidence in this case did not satisfy me that the husband was conniving at the adultery of his wife, or that he had been guilty of such willful neglect or misconduct of or towards her as would justify the Court in refusing to pronounce a decree of divorce, under the 4th clause of section 14; but I do think that, in this case, the husband did not take that care of his wife which he ought to have done; for it appears from the evidence that he allowed her to go out to parties alone without accompanying her; and that he allowed her, on those occasions, to remain out until late hours of the night. The co-respondent has absconded, and there appears to be no hope that he will make any provision for Mrs. Kelly. Under these circumstances, the question is whether a small sum should be allowed to her for maintenance and support, or whether she should be left in a state of destitution.
10. From the affidavit of Mr. Kelly, it appears that his pay amounts to rupees 519-8 a month, and that his marriage expenses are rupees 443-12. He has two daughters, one by the respondent, Mrs. Kelly, and one by his former wife; and he swears in his affidavit that he fully expects that he will be obliged to retire on his pension at the end of the present year, and that then his income will be reduced from rupees 519-8 to rupees 220-12. The petitioner has offered to settle on Mrs. Kelly the damages which he may recover in the suit, but there appears to be very little prospect that those damages will be ever realized.
11. Under these circumstances, it appears to the Court to be reasonable that the Court should make an order on the husband, under clause 4, section 27 of Act IV of 1869, for the payment to Mrs. Kelly, the respondent, for her maintenance and support, of the sum of rupees 50 a month, so long as she continues to lead a chaste and proper life, and continues unmarried.
12. In addition to that, we think that Mr. Kelly ought to settle upon Mrs. Kelly any amount which may be realized of the damages awarded, for her benefit, so long as she continues chaste and unmarried; and after her death, or on forfeiture of that amount on account of any misconduct, the amount shall be for the benefit of the child by her.
13. The cases seem to establish that the wife is not entitled to have access to the children of the marriage, when the marriage has been dissolved on account of her adultery. We cannot, therefore, order that Mrs. Kelly should be allowed to see the child. We think that Mrs. Kelly ought to be allowed the costs of this motion for alimony out of, and not exceeding, the amount of the balance in Court. These costs will be taxed on the same scale as that on which her costs were taxed in the original suit. The costs of the settlement of the damages recovered will be paid out of the amount, if any, recovered.
