The burden of proof in adultery cases, the requirement for confirmation of a divorce decree by the High Court, and the intention of the Legislature to provide jurisdiction in divorce matters to District Judges.

John Wallis, C.J.

1. It has always been the practice of this Court, since the passing of the Indian Divorce Act of 1869, to post and dispose of decrees sent up from the District Court for confirmation after notice to the parties without requiring the petitioner to appear and move for confirmation. I see no sufficient reason to depart from this practice, which appears to me to give effect to the intention of the Legislature. It was in the interest of poor suiters that jurisdiction in divorce was conferred upon District Judges instead of on a Central Divorce Court as in England, and it would be a restriction of the boon to require a petitioner who has obtained a decree in a District Court, to take proceedings for confirmation in the High Court. The mere appearance of the petitioner would be no protection against collusion which is guarded against by the other provisions of Section 17, and as regards the possibility of the parties having died or come together again subsequent to the decree of the District Court the serving of notice seems a sufficient safeguard.

2. As to the facts the petitioner has no doubt failed to prove the specific act of adultery shortly after the marriage on which he relied, besides which condonation has been proved. But with regard to the allegation that the petitioner was not the father of the infant born to the respondent in September 1913, the District Judge, who saw the witnesses, has accepted the evidence of witnesses who, if believed, in my opinion sufficiently prove non-access on the part of the petitioner and misconduct on the part of the respondent. The case really turns on whether the husband had access to his wife about the time the child was conceived. The parties had been separated some months before, when at the instance of the missionaries an effort was made to reconcile them. Plaintiffs 2nd witness speaks to going with the petitioner to her mothers house and finding her absent and to staying the night and their going over to Achutapuram, where she was keeping a night school for adult men as well as boys. There does not seem to have been any opportunity of access on that occasion, and the evidence, in my opinion, negatives anything of the kind. The fact of her having previously to this contracted a venerial disease which she did not accuse her husband of having given her and of her keeping the night school shows the sort of woman she was. I think the adultery is sufficiently proved and would confirm the decree.

Ayling, J.

3. I agree.

Sadasiva Aiyar, J.

4. This ease is described as a "case referred under Section 17 of Act IV of 1869 for confirmation of the decree nisi passed by the District Court of Godavari in Original Suit No. 15 of 1914" on the file of that Court. I have to make two remarks in connection with this. In the first place, Section 14 of the Act IV of 1869, does not call the decree pronounced by the District Court a decree nisi. It is only a divorce decree passed by the High Court on its original side which is called a Decree nisi in Section 16 of the Act. In the second place, there is no provision for the District Court referring the decree to this Court. Section 17 merely says "that every decree for dissolution made by the District Judge shall be subject to confirmation by the High Court." I am not aware of any rules passed by the High Court under Section 62 of the Indian Divorce Act enabling the District Court to make any such reference. I might further add that in this case I find that a head clerk of the District Court, as the officer in charge in the absence of the District Judge from the station, has made this reference on the 13th May 1914. Even holding that a reference by the District Court is contemplated by the Act and we are bound to act on such reference, I think we must decline to act on a reference made by the head clerk of the District Court who is left in charge of the administrative duties and of the establishment during the absence of the District Judge.

5.