JUDGMENT

1. On 25th May 1939, the District Judge of Delhi granted a decree dissolving the marriage between Philip and Gladys Hardless. This decree was confirmed by a Full Bench of this Court on 7th July 1939. Mr. Hardless, the petitioner, alleged that his wife had committed adultery with an unknown European and also with Mohammad Habib, a cook. Mrs. Hardless confessed to the adultery with the European and the learned District Judge based his decree on this admission. He found that adultery with Mohammad Habib was not proved. Mr. Hardless has appealed seeking that the High Court should declare that it is proved that his wife committed adultery with Mohammad Habib. He also seeks that sentences in the judgment reflecting on his character should be expunged. He also prays for custody of the child of the marriage, Raymond. Mrs. Hardless has put in a petition for arrears of maintenance for the child.

2. The parties were married in 1932 and Raymond was born in 1933. In 1934 Mrs. Hardless went to England. Shortly before her return at the beginning of the cold weather, Mohammad Habib was engaged by Mr. Hardless as cook. The parties lived together in Delhi till April 1935, when they went to Waltair in Southern India, Mohammad Habib being dismissed at the time they left Delhi. At the end of the hot weather in 1935, the Hardlesses returned to Delhi, travelling via Calcutta where they stayed with Mrs. Gregory, aunt of Mrs. Hardless. The original intention had been to stay only for a day or so and this is what Mr. Hardless did; but Mrs. Hardless saying that Raymond was tired and peevish did not accompany her husband and stayed on in Calcutta for about three weeks. Mohammad Habib was then employed as cook by Mrs. Gregory. Shortly after Mrs. Hardless left for Delhi, he also came to Delhi and after some time obtained employment with Mr. Davidson, Manager of Messrs. Cooke and Kelvey.

3. In April 1936 Mrs. Hardless became seriously ill and was admitted to the Hindu Rao Hospital at Delhi. While there she confessed to her husband that she had committed adultery with an European from Rawalpindi, whose name she refused to disclose. On 26th June 1936, Mr. Hardless dined with Mr. Cannham, Manager of Manton & Co., whose premises were next door to those of Cooke and Kelvey. Mr. Davidson had meanwhile been succeeded at Cooke and Kelvey by Mr. Binns who had kept Mohammad. Habib as cook. The premises had a common staircase and Mr. Hardless saw Mohammad Habib stumbling down the stairs. Next morning he went to Cooke and Kelvey's godown where he found Mohammad Habib and took from him a bundle of letters. This was resented by Mr. Binns, there was some sort of a scuffle; and the papers were thrown to the ground. Mr. Hardless went outside to explain to Mr. Binns and on his return most of the papers had been burnt. This is the statement of Mr. Hardless, supported more or less by Mr. Gannham, Mr. Binns and one Shimbhu Lal. The same morning, according to the petitioner, Mohammad Habib left Delhi for Calcutta, sending a telegram to Mrs. Hardless on the way.

4. A little later, early in July, Mr. Hardless, at his wife's request, took from the hospital a suit-case which his wife had borrowed from and wished to return to a Mrs. Barrow. In the pocket of the suit-case Mr. Hardless found some other documents which will be noticed later. (After examining evidence regarding alleged adultery with Mohammad Habib, their Lordships proceeded further.) Obviously, taking all this evidence at its best, it falls very far short of establishing the charge made by the petitioner. We entirely agree with the learned District Judge that the petitioner's charge that his wife had committed adultery with Mohammad Habib is not proved. In his judgment the learned District Judge said:

Are we then to accept the statement of Mr. Hardless as gospel truth and to condemn his wife for ever? The evidence on the record and the behaviour of Mr. Hardless in Court lead me to the irresistible conclusion that he