1921. Present : Schneider A.J.

EBERT v. EBERT.

84-P. C. Kalutara, 57,114.

Maintenance-Application by wife-Refusal of wife to live with husband on ground of his adultery-Proof of adultery.

To establish adultery it is not necessary to prove the direct fact of adultery, nor is it necessary to prove a fact of adultery in time and place. The fact may be inferred from circumstances which lead to it by fair inference as a necessary conclusion.

THE facts are fully set out in the judgment.

H. J. C. Pereira, K.C., for defendant, appellant.

Allan Drieberg, K.C., for complainant, respondent.

Cur. adv. vult.

311

February 14, 1921. SCHNEIDER A.J.-

This is an appeal by the husband (defendant), who has been condemned to pay a monthly allowance of Rs. 50 for the maintenance of his wife (the complainant), and another sum of Rs. 50 for the maintenance of the child of their union, which is about six months of age. The wife refuses to live with the husband on the ground of his adultery with a Mrs. Daniel, and also on the ground of cruelty. The latter ground, the Magistrate has held, has not been proved, and rightly so on the evidence. The order is resisted on the ground that there is no proof of adultery subsequent to the marriage. The appeal, therefore, turns on this one point. At one stage of the argument I was inclined to think that, as contended for on behalf of the appellant, there was no proof of adultery. But further consideration has made me think otherwise. I accept, as proved by the evidence adduced, that the defendant was, prior to his marriage to the complainant, guilty of adultery with a Mrs. Daniel, who was a Miss White. Her father regarded the intimacy between her and the defendant with such grave disapproval that he asked her and her husband to leave his house. His evidence in this case is that he thought the defendant and his daughter guilty of a criminal intimacy for about two and a half years, and that he had reported the matter to the General Manager of the Railway. The defendant and himself are guards employed in the Ceylon Government Railway. He produced P 16, a letter written by the defendant to Mrs. Daniel. Defendant admits he wrote this letter, but endeavours to explain away its contents. But that explanation will not bear examination. The Magistrate has lightly rejected it. From its contents, from the evidence of Mr. White, and from the evidence of the complainant that the defendant admitted to her his misconduct with Mrs. Daniel, I am satisfied that there is evidence to prove that the defendant prior to his marriage to the complainant had committed adultery with Mrs. Daniel. The question, therefore, is whether, taking that to be a fact proved, adultery subsequent to marriage may be inferred from the conduct of the defendant. I think it may. The complainant and defendant were married in April, 1919. In February, 1920, the complainant came to her mother in Kalutara, leaving the defendant in Matara. The correspondence proves clearly that he promised to allow her Rs. 200 per mensem, and to come to Kalutara himself when he retired in June, 1920. The correspondence also proves that she came to Kalutara with only a sum of Rs. 50 in her hands (P 2). The evidence is that she received another sum of Rs. 60 after she came to Kalutara. In anticipation of her confinement and for her maintenance she was compelled to make purchases from a shop in Colombo and one in Kalutara. The defendant repudiated his liability for these purchases and published a notice in the newspapers. In May, 1920, the complainant wrote to him

(P 4) about this advertisement. She received no reply. She wrote to him subsequently ; her letters remained unanswered. In November she instituted the present proceedings. The defendant admits that since November, 1920, he has been living with Mr. and Mrs. Daniel in Colombo. The letter P 16 proves the, guilty affection between the defendant and