The main legal point established in the judgment is the application of the Indian Divorce Act, 1869, and the Evidence Act, 1872, in determining the legitimacy of a child in a dissolution of marriage case.

1. This case comes before us, under Section 17 of the Indian Divorce Act for confirmation of a decree for a dissolution of marriage made by a District Judge.

2. The petitioner alleged in his petition to the District Judge that the respondent had been living in adultery in his (the petitioners) house and that she admitted that she was living the life of a prostitute. He also alleged that he did not know any of the persons with whom adultery had been committed and asked to be excused from making the alleged adulterors, co-respondents.

3. In the course of the proceedings the learned judge on his own initiative made an order making one Alexander a co-respondent In view of the terms of the petition, and in the absence of any application by the petitioner we do not think the learned judge was called on to do this. In our opinion he was certainly in error in not directing the amendment of the petition so that the allegations against the co-respondent might be stated therein. As the petition stands it contains no allegations against the co-respondent. An order for substituted service of "notice" on Alexander was made but he did not appear.

3. In this state of things we think the best course to adopt is that suggested by Mr. J. C. Adam who at our request, appeared to support the decree i.e. to strike out Alexanders name and deal with the case as if he had not been made a co-respondent.

4.In paragraph 8 of his petition, the petitioner with reference to his allegation that the respondent had been leading the life of a prostitute, asked to be excused from making any of the alleged adulterors co-respondents. He did not make any special application under Section 11 of the Act, and no order under the section was made by the court. The effect of the absence of any formal order does not seem to us, in the circumstances of this case, to be a matter which we need consider, since we are unable to agree with the learned judge in his findings with reference to the allegations in paragraphs 6 and 7 of the petition.

5. During the pendency of the proceedings the respondent gave birth to a child. The case for the petitioner was that this child was born some 11 months after he had ceased to have marital intercourse with the respondent. He relied on the birth of this child as evidence of adultery. Here again the petition ought to have been amended. It is quite clear, however, that the respondent was in no way prejudiced or embarassed in her defence by the fact that there was no amendment. The child was born on February 8th, 1912. The petitioner and his witnesses were examined on April 18th, 1912. They were not cross-examined on behalf of the respondent till September 24th 1912. The respondents witnesses were examined and cross-examined on that date. The explanation of the delay would seem to be (in part at any rate,) that when the suit came on for hearing in the first instance in April 1912 the respondent did not appear. On March 21st 1912 she had applied for a fortnights adjournment and produced a medical certificate. She stated that she desired to defend the case. The case would seem to have been adjourned till April 18th. On that day the respondent did not appear and made an application for a further adjournment. The suit proceeded on April 18th as an undefended suit and, after the the evidence of the petitioner and of 5 witnesses called on his behalf had been heard, was adjourned. Subsequently an order was made (we are told with the consent of the petitioner) that the respondent should be allowed to defend the suit. One thing is clear and that is that the respondent had ample notice of the case made against her in connection with the birth of the child. Her case was that marital intercourse took place between the petitioner and herself during March, April and May 1911 and that the petitioner Was the father of the child.

6. Their Lordships then considered the evidence as to adultery and concluded as follows:

Although the evidence called on behalf of