The provisions of the Indian Divorce Act govern proceedings related to marriage nullity, and positive proof is required to declare a marriage null and void.

Alfred Henry Lionel Leach, C.J.

1. This case is unparalleled and it raises an important question of law. The appellant was married to the respondent on the 9th June, 1933, at All Souls Church, Coimbatore. The appellant had been previously married, but he had not heard of his first wife for over seven years and consequently presumed her to be dead. The appeal arises out of a petition filed by the respondent on the Original Side of this Court under the Indian Divorce Act for a declaration that her marriage with the appellant was null and void because his first wife was still alive. She failed to prove this fact, but maintained that she was entitled to rely on the presumption stated in Section 107 of the. Indian Evidence Act, which says that when the question is whether a person is alive or dead, and it is shown that the person was alive within 30 years, the burden of proving the person to be dead is on him who affirms it. In other words, she maintained that all she had to prove was that the appellants first wife was alive within 30 years of the petition and if the appellant failed to prove affirmatively that his first wife was dead on the 9th June, 1933, she was entitled to the declaration. The learned Judge accepted this argument and as there was no evidence on the record that the first wife was dead when the second marriage took place he granted her petition. The appellant says that the respondent cannot be given the relief sought by her unless she proves positively that his first wife was alive on the date of the second marriage.

2. Before dealing with the question of law involved, we will state the facts in some detail. The. appellants first marriage was to one Mary Rachel Greenwood and look place at the Roman Catholic Church, Agra Cantonment, on the 10th September, 1913. On the 12th July, 1914, a son was born to this union. On the 20th January, 1920, the wife left her husband and took the boy with her; but in the month of November of the following year she handed over the child to him at Bellary where he was employed as the superintendent of the local jail. From then until the middle of 1923, they corresponded, but the correspondence then ceased. In 1924, the appellant took the boy to England, and placed him in a school there. In 1927, the boy was taken seriously ill and the appellant tried to get in touch with his wife but all his letters were returned and he failed to discover whether she was alive or dead.

3. Not having heard anything of his first wife after 1923 the appellant in 1933, presumed her to be dead and he proposed marriage to the respondent. The respondent is an Anglo-Indian and, being then 20 years of age, was a major. The appellant disclosed to her and to her father the fact of his previous marriage and the subsequent events. The priest whose duty it would be to marry them in the absence of lawful impediment was consulted and at his suggestion the appellant made further enquiries with the view to ascertaining whether his first wife was alive. The enquiries failed to produce any information with regard to her, and the respondent and her father being satisfied that the first wife had not been heard of for over seven years, the respondent agreed to marry the appellant. The marriage ceremony was duly performed and the respondent has borne to the appellant two children, a boy and a girl, both of whom are alive.

4. The appellant avers that the respondent filed the petition for the declaration of nullity of the marriage because she intended to marry an army officer with whom he alleges she is living in adultery. If the respondents marriage to the appellant is a nullity, the question of her intimacy with another man will not be a factor in the case; but the Court can inquire into the, respondents motive in instituting these proceedings. In her petition she asked for an order giving her the custody of the children and the appellant was prepared to resist this application on the ground that she was living in adul