[PRIVY COUNCIL.]

Present: Viscount Haldane, Lord Blanesburgh, and Lord Darling.

ELIATAMBY v. ELIATAMBY et, al.

260-D. C. Colombo, 5,083.

    Divorce-Evidence of adultery-Undelivered letters from wife-Evidence against co-respondent-Evidence Ordinance, No. 14 of 1895 s. 9,

In an action by a husband for divorce, letters written by the wife to the co-respondent but not delivered to him, are not admissible against the co-respondent.

The fact that the co-respondent's Counsel has based questions in cross-examination upon the contents of the letters, which had been properly admitted against the wife, does not make the letters evidence against the co-respondent.

APPEAL from a judgment of the Supreme Court. The action was brought by the plaintiff for divorce from his wife the first defendant on the ground of her misconduct with the second defendant. The first defendant filed answer denying adultery. This answer she later withdrew. The second defendant also denied adultery. The District Judge found that there was evidence of adultery against the first defendant, but not against the second defendant. He entered a decree dissolving the marriage but dismissed the action as against the second defendant. In appeal the Supreme Court reversed the decision of the District Judge, so far as it related to the second defendant, and found that he had committed adultery with the first defendant.

The facts appear from the judgment of the Judicial Committee.

July 7,1925. Delivered by LORD DARLING :-

This is an appeal from a decree of the Supreme Court of the Eliatamby Island of Ceylon dated December 19, 1923, setting aside a decree of the District Judge of Colombo, dated May 28, 1923, so far as it related to the appellant, and further decreeing that the appellant do pay to the first respondent the sum of Rs. 5,000 as damages.

The questions for determination in this appeal are whether the evidence prove that the appellant has committed adultery with the second respondent and whether certain matters admitted as evidence were rightly so admitted.

On May 31, 1922, the first respondent instituted a suit in the District Court of Colombo praying that his marriage with the second respondent might be dissolved on the ground of her alleged adultery with the appellant and that the appellant be ordered to pay the sum of Rs. 50,000 as damages to the first respondent in respect of the alleged adultery.

The second respondent filed an answer dated August 2, 1922, inter alia denying the allegation of adultery. This answer she withdrew on October 11, 1922. The appellant had filed an answer dated July 26, 1922, denying the allegation of adultery.

The following issues were framed at the trial by the District Judge :-

(1) Did the second defendant (appellant) commit adultery with first defendant (second respondent) on various occasions between July 29, 1920, and February 11, 1922 ?

(2) If so, what damages (if any) is plaintiff (first respondent) entitled to ?

The second respondent was not called as a witness and the District Judge having heard all the evidence, was of opinion that there was no evidence of adultery against the appellant or evidence from which adultery could be inferred even if he accepted as true the evidence of the witnesses called on behalf of the first respondent.

The District Judge found that there was evidence of adultery against the second respondent consisting of-

(1) A verbal admission made by her to the first respondent on February 10,1922 ;

(2) Letters in her handwriting and addressed to the appellant but not delivered to him.

And he pronounced a decree dissolving the marriage, dismissed the action as against the appellant, and ordered the first respondent to pay the appellant's costs.

The wife's admission was made on February 10, 1922, in the presence of the appellant at a time when she was drunk and violent, and the appellant both as a doctor and a