On June 30, 1980, the husband petitioner in these divorce proceedings, was granted a decree nisi to be made absolute in three months on the ground of desertion by the wife respondent. However, both parties agreed that custody of the three children of the marriage shall be with the husband petitioner.

In August, 1983, almost three years after the decree nisi had been made absolute, the wife returned to the matrimonial home in an attempt at a reconciliation but this proved to be short-lived and in November 1984, she moved out again and brought this present application seeking custody of the three children, their maintenance and maintenance for herself.

At the hearing of the application for custody, the husband respondent raised the following objections.

1. There is no material change in circumstances as to warrant a change of custody.

2. The applicant is not a fit and proper mother to whom custody can be entrusted.

When the applicant consented to the respondent having custody of the three children in 1980, the arrangement was that the children continue to live with the respondent in the matrimonial home and that they will be tendered to by their paternal grandmother and a maid whom they loved and respected. The maid has since left the respondent's employment and her replacement is a complete stranger to them. Added to this is the fact that the respondent's mistress, a divorcee with a child from a previous marriage, is also living in the same house with the three children. Although the respondent admitted that he eventually intends to marry her, he appears to be in no hurry to do so and is quite content to allow matters to remain as they are. She had moved into the matrimonial home immediately after the applicant left in November, 1984 when the latter's attempt at a reconciliation failed.

Whether or not there has been a material change in the status quo of the party to whom custody has been granted must depend on the facts of each case. The presence of the respondent's mistress in the matrimonial home can hardly be described as conducive to the welfare and proper up bringing of a 13-year old boy and his two sisters aged 12 and 9. No right thinking parent can deny that the immoral arrangement by the respondent must have a negative effect on the minds of the three young children. Apart from this, I doubt whether the respondent can spend much time with them as his hours of work as a doctor, running three clinics stretch well into the night. Instances of neglect and cruelty were also cited by the applicant but the respondent chooses to brush these aside as his way of chastising his children and inculcating a sense of discipline into them as he admits that they come from a troubled home.

Allegations of the applicant's adulterous associations with other men during the marriage were also alluded to by the respondent to show that she is not a fit and proper mother to whom custody can be given. As such conduct was not cited in the respondent's petition, as a ground for divorce, I consider them to be mere allegations for which no proof has been tendered. For the same reason I also cannot accept the respondent's allegations that the applicant is leading an immoral life as evidence of this is merely hearsay. On the contrary, there is evidence that the respondent himself had been guilty of leading an immoral life as his present life style shows and that in 1982, he was sued for maintenance by a woman who claimed that from her association with him, a daughter was born on July 16, 1981. This is not disputed by the respondent.

I had also taken the liberty of speaking to the three children in the absence of their parents and in appearance, they appear to be small for their ages and if not for the fact that the respondent is a doctor, I would easily conclude that they appear to be anaemic to me. When asked whether they wished to move from their present environment, Gary, the eldest, without any hesitation, chose to be with the