JUDGMENT

Mackney, J - The plaintiff-respondent Ma Hla Mu sued the defendant-appellant Maung On Kyaw for divorce on the ground that he persisted in assaulting her and accusing her of adultery without ground. The Township Court of Pagan in which the suit was tried dismissed it on the ground that the plaintiff had failed to prove that she had been beaten and ill-treated by the defendant and that if she had been beaten it was not without cause because she did what the defendant did not want her to do. On appeal to the District Court the learned District Judge of Myingyan held that there was proof that the defendant-appellant Maung On Kyaw had ill-treated Ma Hla Mu and that he had persisted in a charge of infidelity without sufficient grounds. The learned District Judge considered that Ma Hla Mu was entitled to a decree for divorce. He therefore set aside the decree of the lower Court and granted Ma Hla Mu a decree for divorce against Maung On Kyaw. Maung On Kyaw has now appealed against this decision under Section 11 of the Burma Courts Act.

2. As regards the facts it would appear that Maung On Kyaw has for some time suspected his wife of improper conduct with one Maung Tin who appears to be the husband of her sister living in the house of Ma Hla Mu's parents. As a result of the suspicions it is also clear that be the husband of her sister living in the house of Ma Hla Mu's parents. As a result of the suspicions it is also clear that he quarreled with Ma Hla Mu and, at least, twice assaulted her; the last occasion was some time in February 1933, when he assaulted her so badly that she actually prosecuted him under Section 323 of the Penal Code in the Court of the Township Magistrate, Pagan. Maung On Kyaw was found to have caused hurt, but was released after due admonition. Whilst this case was pending Maung On Kyaw prosecuted Mung Tin under Section 497, I.P.C., in the Court of the same Magistrate. The trial resulted in the acquittal of Maung Tin. We have the evidence of Maung On Kyaw's own mother who says that they have been at sixes and sevens for a year because Ma Hla Mu went to her parents' house against the wishes of Maung On Kyaw. Daw Pon? the appellant's mother, states:

As the plaintiff did not listen to the defendant's advice the plaintiff was beaten and I heard the sound of the plaintiff being beaten.

3. Maung Tun Aye, the appellant's brother, says that the parties have not been on good terms for the last three years, and he gives the same reasons as Daw Pon. Daw Aye Mya, an aunt of Ma Hla Mu, says that she has had to separate the parties when they were fighting two or three times. She adds that the plaintiff is a woman of good disposition. Two other witnesses depose to Ma Hla. Mu's reporting to them that she had been assaulted, but their evidence is of very little value.

4. U Than Dun Aung states that on the last oocasion he noticed a swelling on her arm and back. Maung On Kyaw admits, that he did assault her on this occasion. This witness adds that Maung On Kyaw has a violent disposition, but he cannot give any satisfactory reason for his opinion. Maung On Kyaw is quite willing that they should be divorced but it must be on the footing that respondent is at fault and not he. He admits to having beaten her twice, last of these occasions being the occasion in February. Since then the parties have been separated. I think that it may be taken as established that the appellant persists in his charge of infidelity against the respondent, and that, before they were separated, this belief on his part led him to assault her on more than one occasion. He has not been able to substantiate, this charge of adultery. The only witness brought by him is Chit Toke, who says that on one occasion in February 1927, he noticed Ma Hla Mu and Maung Tin under a blanket but be does not know what they were doing. What the occasion was, or, indeed, any detail whatsoever about the affair, has not been divulged.

5. A somewhat similar case to the present i