http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: EARNEST JOHN WHITE

       Vs.

RESPONDENT: MRS.  KATHLEEN OLIVE WHITE AND OTHERS

DATE OF JUDGMENT: 10/03/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. BHAGWATI, NATWARLAL H. GAJENDRAGADKAR, P.B.

CITATION:  1958 AIR  441            1958 SCR 1410

ACT: Divorce-Adultery-Standard of Proof-Principle-Direct evidence if  imperative-Finding of fact when can be interfered  with- Divorce Act (IV of 1869), ss. 14 and 7.

HEADNOTE: The  appellant sued his wife for dissolution of marriage  on the ground of her adultery. On  the  evidence  the trial court found  that  it  was  not possible to hold that adultery had been committed, though it found that one of the letters contained "a large  substratum of  truth".   The High Court in appeal  concurred  with  the decision.   On appeal to the Supreme Court it was  contended for  the appellant that the finding of the courts below  was vitiated  because  certain  pieces  of  evidence  had   been misread, and some others ignored.  As a matter of legitimate and  proper inference the Court should not have  arrived  at any  other  conclusion,  but that the  wife  was  guilty  of adultery with respondent NO. 2. The evidence showed that the wife went to Patna and stayed in a hotel with respondent NO. 2 under an assumed name, that they occupied the same room in the  hotel, that the conduct of the respondent  indicated  a guilty  inclination,  and  that  so  far  as  the  wife  was concerned,  her  conduct was entirely  consistent  with  her guilt : Held,  that, the nature of the evidence adduced was such  as would satisfy the requirements of s. 14 of the Divorce  Act, and  that the finding of the Courts below that an  inference of adultery could not be drawn therefrom must be set aside. Although it is not usual for the Supreme Court to interfere 1411 on  questions  of  fact, where, however,  the  courts  below ignore  or  misconstrue  important  pieces  of  evidence  in arriving at their finding, and this Court is of the  opinion that  no tribunal could have come to such a finding oil  the evidence  taken  as a whole, such finding was liable  to  be interfered with by this Court. Held, further, that the words "satisfied on the evidence" in s. 14 Of the Divorce Act, 1869, imply that it is the duty of the  (Court to pronounce a decree only when it is  satisfied that the case lhas been proved beyond reasonable doubt as to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

the commission of a matrimonial offence. The  evidence  must be clear and  satisfactory  beyond  mere balance  of probabilities.  It is not neccessary and  rarely possible, to prove the issue by any direct evidence. The rule laid down in Preston Jones v. Preston Jones, [1951] A.C. 391, lays down the principle that should be followed by tile courts under s. 7 Of the Divorce Act. State of Madras v. A. vaidanatha Iyer, A.I.R. 1958 S.C.  61, Purvez  Ardeshir  Poonawala v. The State of Bombay, Cr.   A. 122   Of  1954,  decided  on  December  20,  1957,   Stephen Seneviratne  v.  The  A.I.R.  1936  P.C.  289,  Mordaunt  v. Moncrieffe,  (1874) 30 649 and Gower v. Gower [1950] 1  All. E.R. 804, referred to. Loveden  v.  Loveden, (1810) 161 F. R. 648 ; (1810)  2  Hag. Con. 1,3, referred to. Preston  Jones  v. Preston Jones, [1951]  A.C.  391,  relied upon.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil AppeAl No. 19 of 1956. Appeal from the judgment and decree dated July 21, 1954, of’ the  Patna  High Court in Letters Patent Appeal  No.  24  of 1951,  arising out of the judgment and decree dated May  15, 1951,  of the said High Court in Matrimonial Suit No.  2  of 1950. M.   C.   Setalvad,  Attorney-General  for  India,   N.   C. Chatterjee  and P. K. Chatterjee, for the  appellant.   Both the Courts below have failed to draw the proper inference of the  commission of adultery, which should legitimately  have been drawn from the facts proved.  Both the Single Judge and the  Appeal  Court failed to take  into  consideration  some pieces  of  evidence and certain other  pieces  of  evidence which   were   equally  important  had  been   misread   and misconstrued  and  as  a matter  of  legitimate  and  proper inference  the lower courts should not have arrived  at  any other 179 1412 conclusion  but that the wife was guilty of adultery and  in such  case the interference with the finding of facts  below by the Supreme Court will be called for. State  of Madras v. A. Vaidanatha Iyer, A. I. R. 1958 S.  C. 61 and Stephen Seneviratne v. The King, A. I. R. 1936  P. C. 289. N.C. Chatterjee continued.  The judgment of the High   Court suffers  from  certain serious infirmities  and  this  Court should  not act on the rigid principle that finding of  fact should not be interfered with in the final court of appeal. Sir William Scott’s dictum in Loveden v. Loveden, (1810) 161 E.  R. 648, as to " the guarded discretion of  a  reasonable and  just  man" does not mean there should  be  satisfactory evidence  of the commission of a matrimonial offence.   Lord MacDermott  has  pointed  out in Preston  Jones  v.  Preston Jones,  L. R. [1951] A.C. 391, that if a judge is  satisfied beyond  reasonable  doubt  as  to  the  commission  of   the matrimonial  offence relied on by the petitioner  as  ground for  divorce,  he  must surely  be  "satisfied"  within  the meaning  of  the  enactment,  and no less  so  in  cases  of adultery where the circumstances are such as to involve  the paternity of a child.  To succeed on an issue of adultery it is not necessary to prove the direct fact of, or even an act of  adultery in time and place ; for if it were so, in  many few  cases  would  that proof be attainable.   It  has  been pointed out in a number of cases that rarely the parties are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

surprised in a direct act of adultery and such evidence will have to be disbelieved.  Rydon on Divorce, 6th Edn., P. 115; Douglas v. Douglas, [1951] P. 85: [1950] 2 All E.R. 748.  In nearly  every  case the fact of adultery  is  inferred  from circumstances  which  lead  to it by  fair  inference  as  a necessary  conclusion.   Unless  it is so  held  there  will absolutely  be  no protection to marital rights.   Allen  v. Allen, [1894] p.248, approving Loveden v. Loveden. Counsel  then cited Davis v. Davis, [1950] P. 125: [1950]  1 All E. R. 40.  In that case Bucknill, L. J., and  Somervell, L.  J., held that when husband petitions for divorce on  the ground of wife’s cruelty, it is 1413 unnecessary  to  introduce any question of the  standard  of proof  required  of  a criminal  charge.   Denning,  L.  J., emphasised  that  a suit for divorce is a civil  and  not  a criminal  proceeding.   The same standard of proof  as  that required in criminal cases is not needed.  The stringency of proof required in a criminal court is not necessarily called for  in  divorce  suit.   Lord  Merriman’s  dictum   quoting Churchman  v. Churchman, [1945] P. 44, that the same  strict proof  is required in the case of matrimonial offence as  is required  in connection with criminal offence has  been  too widely  expressed and should be read in the light  of  later judgments. Recent judgment of the Court of Appeal (Bucknill, L.   T., and Denning, L. J.,) lays down the correct law in Gower   v. Gower, [1950] 1 All E.R. 804, that the correct approach  has been  laid  down by Denning, L. J., who  observed  that  the court should not be irrevocably committed to the view that a charge  of adultery must, be regarded a criminal charge,  to be proved beyond all reasonable doubt.  All that the statute requires is that the court must be satisfied on the evidence that  the case of the petitioner has been proved and  it  is submitted  that Denning, L. J., has enunciated  the  correct principle  and  the statute lays down a  standard  and  puts adultery  on  the  same footing  as  cruelty,  desertion  or unsoundness of mind. N.   C. Chatterjee cited also Mordaunt v. Moncrieffe, (1874) 30 L.T. 649. S. P. Varma, for the respondent.  The burden of proof is  on the   person  alleging  adultery  and  there  is  always   a presumption  of innocence.  In any event on a  petition  for divorce  some  strict proof is required of  adultery  as  is required in a criminal case before a person is found guilty. Ginesi  v.  Ginesi, [1948] P. 179: [1948] 1  All  E.R.  373. Applying  the  dictum  of  Lord  Merriman  in  Churchman  v. Churchman,  [19451 P. 44, the trial court was not  satisfied of  the  guilt beyond all reasonable doubt.  It is  for  the trial  judge  to  decide an issue of fact ;  unless  he  has misdirected himself his finding should not be disturbed. R.   Patnaik, for co-respondent No. 1. Submitted that 1414 the evidence in the case falls far short of the standard  of proof required. 1958.   March 10.  Tile Judgment of the Court was  delivered by KAPUR J.-This is an appeal with a certificate under s. 56 of the  Divorce Act (IV of 1869) (hereinafter called  the  Act) against  a judgment and decree dated July 21, 1954,  of  the High  Court  of Patna dismissing the  husband’s  suit.   The husband who is the appellant sued his wife who is respondent No.  I  for  dissolution of marriage on the  ground  of  her adultery with two co-respondents now respondents Nos. 2  and 3.  The suit was tried in the High Court by Shearer J.,  who

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

dismissed  the suit and this decree was on appeal  confirmed by the Appeal Court.  The question as to the legality of the certificate granted was raised but in the view that we  have taken it is not necessary to decide this question. The husband was married to the wife at Kharagpur on February 3,  1,943,  and  there is no issue  of  the  marriage.   The parties thereafter resided at "Rose Villa" at Samastipur and respondent  No.  2  was  residing  with  his  mother  in  an adjoining  house called " Sunny Nook".  The husband  alleged various acts of adultery between the wife and the other  two respondents.   As  regards allegations of’ adultery  of  the wife with respondent No. 3, the High Court has found against the  husband  and these findings have  not  been  challenged before us.  The allegations of adultery between the wife and respondent  No.  2  were also held not  proved.   In  appeal before  us the husband has confined his case to the acts  of adultery  alleged  to  have been committed  at  the  Central Hotel, Patna where the wife and respondent No. 2 are alleged to have resided together between July 25, 1950 and July  28, 1950,  under  the  assumed names of  Mr.  and  Mrs.  Charles Chaplin.   The  wife pleaded that she came to  Patna  solely with  the object of having her tooth extracted and  returned to Samastipur the same day and that she had to come alone as in  spite  of her request the husband refused  to  accompany her. 1415 Respondent  No.  2 pleaded that he came to  Patna  with  his mother  "  in connection with seeking employment  under  the Superintendent Of Police, Anti-Smuggling Department, also in connection  with mother’s tooth trouble and for  house  hold shopping  ". He also pleaded that he stayed with his  mother in the same room under his own name and not under an assumed name. The trial judge found that the wife and respondent No. 2 and the latter’s mother stayed in two rooms in the Hotel Nos.  9 & 10 from July 25, 1950 to July 28, 1950.  He accepted  the, testimony  of the Manager of the Hotel, Cardoza P. W. 3  and also of the sweeper Kira Ram P. W. 4. He found that the Wife and  respondent No. 2 were seen by Kira Rain in room No.  10 and  also that the party, i.e., the wife, respondent  No.  2 and the latter’s mother were served morning tea in one  room which  they  had together but he did not infer any  acts  of adultery  from  this  conduct.  The  document  Ex.  8  dated November 22, 1950, but actually written earlier was held  by the  learned Judge to contain " a large substratum of  truth ".  The  Appeal Court (S.  K. Das C. J.  and  Ramaswami  J.) agreed  with the findings of the trial judge but  they  also were  unable  to  draw the inference of  the  commission  of adultery  front  the evidence.  In appeal it  was  contended that the findings of the courts below. were vitiated because certain  pieces of’ evidence had been misread, some  ignored and as a matter of legitimate and proper inference the court should not have arrived at any other conclusion but that the wife was guilty of adultery with respondent No. 2. This  Court will not ordinarily interfere with  findings  of fact given by the trial judge and the Appeal Court but if in giving  the  findings the Courts  ignore  certain  important pieces  of evidence and other pieces of evidence  which  are equally  important  are  shown  to  have  been  misread  and misconstrued and this Court comes to the conclusion that  on the evidence taken as a whole no tribunal could properly  as a  matter of legitimate inference arrive at  the  conclusion that it has, interference by this Court will be called  for. (See 1416

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

State  of  Madras  v. A.  Vaidanatha  Iyer  Purvez  Ardeshir Poonawala v. The State of Bombay(2); Stephen Seneviratne  v. The King (3). The  Central Hotel, Patna, which is alleged to be the  scene of  adultery by the wife bad only 10 rooms, which  were  all single, but whenever necessary additional beds were put  in. At the relevant time M. C. Cardoza P.   W. 3 was employed as its Manager, Kira Ram P. W. 4 as a sweeper, Abdul Aziz P. W. 5  and Usman Mian P. W. 6 as bearers.  Kira  Ram  identified the  wife  as  the lady who had stayed  at  the  hotel  with respondent No. 2 but the other hotel servants although  they were  shown the photograph of the wife and also saw  her  in court were unable to recognize her as the person who  stayed with  respondent  No. 2. But they did identify  him  as  the gentleman who had stayed in the hotel along with two ladies. Examined by counsel Kira Ram stated: Q.   "  (Pointing  out to the wife) I ask you, do  you  know this lady?  A. Yes.  Q. Did they ever visit your hotel?   A. Yes.  Q. How long ago?  A. About 9 or 10 months ago.  Q. How long  did they stay there?  A. About 4 or 5 days.   Q.  What room did they occupy?  A. Room No. 10 ". He was unable to say as to the number of beds in room No. 10 nor is there any other evidence in regard to this.  He  also stated : Q.   "  During  their  stay for these 4 or 5  days  in  your hotel, did you go to clean their bath room ? A. Yes.  Q. Did you  see  them  in that room whenever you  went  ?  A.  Yes, whenever I used to go to sweep the room I found Memsaheb and Saheb there." (Questioned by the Court the witness said: Q.   "Can  you  remember was there any other  Memsaheb  with these two?  A. There was another Memsaheb who lived in  room No. 9. Q.   What was she like young Memsaheb or what ? A.   She was not very old, but she was old." (1)  A. T. R. 1958 S.C. 61, 64. (2)  Cr.  A. I 22 Of 1954, decided on December 20, 1957. (3)  A.I.R. 1936 P.C. 289, 299. 1417 And this obviously refers to respondent No. 2’s mother.  The evidence  of  Kira  Ram therefore shows that  the  wife  and respondent  No.  2  occupied  one room,  room  No.  10.   No question was put to this witness as to his hours of duty nor was the manager Cardoza asked anything about it but  another witness  Abdul  Aziz bearer P.W. 5, was asked  about  it  as follows: Q.   " What are the hours of work of the sweeper ? A.   He comes at 7 a.m. and he leaves in the evening.He   sometimes goes away at about 11 and 11-30 a.m.or  12 noon". Similarly no questions were put to Kira Ram about the  state of  habillement  of the wife and respondent No.  2  and  the witness  never deposed about this fact.  The  learned  trial Judge  erroneously thought that when Kira Ram spoke  of  the wife  and respondent No. 2 lie " speaks as if ’  they’  were fully  dressed and not en deshabille " and the Appeal  Court took  this  finding to be " as if  this  witness’s  evidence showed  that both of them were fully dressed".   The  Appeal Court also seems to have misdirected itself in regard to the duty  hours.  It said " the sweeper concedes that he was  on duty  from 6 a.m. to 11 a.m. " There is also evidence  which has not been rejected that morning tea was served to all the three,  i.e., the wife, respondent No. 2 and the  mother  of the latter in the same room.  The statement of Kira Ram that the  wife  and  respondent  No. 2  occupied  the  same  room receives corroboration from Ex. 6 the hotel bill and receipt dated  July 29, 1950 for room No. 10 in the name of Mr.  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

Mrs.  Charles Chaplin.  This document even though  contempo- raneous  with  the events under consideration  and  strongly corroborative of Kira Ram’s evidence and of the statement of Cardoza  that when Mr. and Mrs. Charles Chaplin  "stayed  in the hotel, they stayed in their own room " does not seem  to have  been  brought to the notice of either  of  the  Courts below.   Because  of the infirmities pointed out  above  the import  of the testimony of Kira Ram which has in  the  main been  accepted by both the Courts below has been missed  and its necessary consequences ignored. 1418 Then there is the evidence as to disappearance of the  entry in the Hotel Visitor’s Book which was in the handwriting  of respondent No. 2. This entry was in the assumed name of  Mr. and  Mrs.  Charles  Chaplin  from  Hong  Kong  but  when  he (respondent No. 2) was asked to fill in the Foreigner’s form the  entry  was changed from Hong Kong to  Samastipur.   The entry  itself  could  not be produced in  Court  because  as deposed  by Cardoza, respondent No. 2 came to the hotel  and by  managing  to send the hotel servant away from  the  room where  the  Visitor’s Book was kept, he tore off  the  pages containing this entry.  This fact receives support from  the complaint  which Cardoza made to the police on  December  5, 1950, and the entry in regard to this complaint made in  the Station   House  Diary  of  the  same  date.    Both   these documents  have  been  produced as Exs. 1/1  and  1/2.   The significance of this piece of evidence lies in the fact that it was done after the husband started collecting evidence of adultery  and  after lie and his sister  had  inspected  the entry   which  according,  to  his  statement  was  in   the handwriting of respondent No. 2. The  reason of the wife’s visit to Patna was tooth  trouble. After her tooth was extracted she did not ,ice her  -Dentist again  even though he had asked her to (lo so.  Her  version is  that she returned to Samastipur the same  evening  which the Courts below have not accepted.  Thus it shows that  she stayed  on  at the Central Hotel, Patna for four  days  with respondent  No. 2 without any reason being given by her  and so  far as the hotel bill and receipt Ex. 6 goes, the  hotel charges for her stay were paid by " Charles Chaplin ", i.e., respondent  No.  2  and not by her.   This  fact  has  again escaped  the notice of both the Courts below.  And  this  is more in consonance with guilt than innocence of the wife. There are then the statements of J. A. Baker P.W. 8 and T.H. O’Conior P.W. 9 to the effect that in September 1950, at the house of O’Connor respondent No. 2 in the presence of  these two witnesses boasted of his having had a good time with the wife and that she was a remarkable lady ". Respondent No. 2                      1419 had also love letters purporting to be from the wife,  parts of which he read out to these witnesses.  They repeated  the story  to  the husband which set him thinking.   Shearer  J. held  this  part of the evidence to be true and  the  Appeal Court  also  accepted it but construed it  as  showing  that there  was no adulterous connection at that time,  i.e.,  in September or it had ended at the instance of the wife.  Even as  it is this finding is not destructive of  the  husband’s case  as to adultery at Patna in the month of July;  on  the other hand it supports adulterous relations. The  presence of the mother of respondent No. 2  might  have been  a shield against the commission of adultery  at  Patna but the document Ex. 8 which has been accepted by the Courts below  to  have a substratum of truth just strips  it  away. This document is indicative of the mother’s attitude towards the  wife.   The  following extract from  this  document  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

relevant as showing that she wanted the wife for her son: "  How  nice it would have been if you had  married  my  son -David’.   On another occasion while having tea  along  with her  she begged me to leave my husband and go away with  her son who was ruining his life and health and could not settle down  to  a job as he could not bear to see  me  married  to another man." The  presence of the mother would thus be no  impediment  to adulterous  relations  between  the two.  The  wife  in  the witness  box wholly denied the episode of the Central  Hotel including  her stay there, which has deprived the Courts  of her  explanation.   We  are, therefore  unable  to  get  any assistance  from her or as a matter of that from  respondent No. 2 as to what happened in the hotel at Patna. The  appellant  contends  that the  only  conclusion  to  be arrived  at upon the evidence taken as a whole is  that  the wife was guilty of adultery with respondent No. 2. In  other words the evidence was in quality and quantity such that  it satisfies the requirements of s.   14   of  the  Act   which provides: S. 14 "In case the Court is satisfied on the 180 1420 evidence   that  the  case  of  the  petitioner   has   been proved....................................................." The  important words requiring consideration are  "satisfied on  the evidence ". These words imply that the duty  of  the Court  is to pronounce a decree if satisfied that  the  case for the petitioner has been proved but dismiss the  petition if  riot  so  satisfied.   In  s.  4  of  the  English  Act, Matrimonial  Causes Act of 1937 the same words occur and  it has  been  there held that the evidence must  be  clear  and satisfactory  beyond the mere balance of  probabilities  and conclusive  in  the  sense that it  will  satisfy  what  Sir William Scott described in Loveden v. Loveden (1), as "  the guarded  discretion  of’ a reasonable and just man  ".  Lord MacDermott referring to the description of Sir William Scott said’ in Preston Jones v. Preston Jones (2): "  The  jurisdiction in divorce involves the status  of  the parties  and the public interest requires that the  marriage bond  shall  not  be set aside  lightly  or  without  strict enquiry.   The terms of the statute recognise this  plainly, and  I  think  it would be quite out  of  keeping  with  the anxious  nature  of its provisions to hold  that  the  court might   be  "satisfied  "  in  respect  of  a   ground   for dissolution,   with   something  less  than   proof   beyond reasonable doubt.  I should, perhaps, add that I do not base my conclusion as to the appropriate standard of proof on any analogy  drawn from the criminal law.  I do not think it  is possible  to  say, at any rate since the  decision  of  this House   in   Mordaunt  v.  Moncrieffe  (3)  that   the   two jurisdictions are other than distinct.  The true reason,  as it  seems to me, why both accept the same general  standard- proof beyond reasonable doubt-lies not in any analogy but in the  gravity and public importance of the issue  with  which each is concerned." The  Act  lays  down in s. 7 that Courts in  all  suits  and proceedings  under  the  Act shall act and  give  relief  on principles and rules which in the opinion of the (1)  (1810) 161 E.R. 648, 649; (1810) 2 Hag.  Con. 1, 3. (2)  [1951] A.C. 391, 417. (3)  (1874) 30 L.T. 649. 1421 Court are as nearly as may be conformable to the  principles and  rules  on which the Court for Divorce  and  Matrimonial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

Causes in England for the time being acts and gives  relief. In  our  opinion the rule laid down by the  House  of  Lords would  provide  the principle and rule which  Indian  Courts should  apply to cases governed by the Act and the  standard of  proof in divorce cases would therefore be such  that  if the  judge  is satisfied beyond reasonable doubt as  to  the commission of the matrimonial offence he would be  satisfied within   the  meaning  of  s.  14  of  the  Act.   The   two jurisdictions,  i.e., matrimonial and criminal are  distinct jurisdictions but the terms of s. 14 make it plain that when the  Court is to be satisfied on the evidence in respect  of matrimonial  offences  the  guilt  must  be  proved   beyond reasonable doubt and it is on that principle that the Courts in India would act and the reason for adopting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes. Gower v. Gower (1) was pressed before us by counsel for  the appellant as to the approach that the court should have to a matrimonial offence.  But in view of the decision in Preston Jones Case (2) it is unnecessary to discuss that case. In a suit based on a matrimonial offence it is not necessary and  it is indeed rarely possible to prove the issue by  any direct  evidence  for in very few cases can  such  proof  be obtainable.  The question to be decided in the present  case therefore,  is whether on the evidence which has  been  led, the  court  can be satisfied beyond  reasonable  doubt  that adultery was committed by the wife with respondent No. 2  at Patna  between  July 25, 1950, and July 28,  1950.   In  our opinion   the   facts   proved   are   quantitatively    and qualitatively  sufficient to satisfy the test laid  down  by the House of Lords in Preston Jones Case (2).  The wife went to  Patna and stayed with respondent No. 2 under an  assumed name.   They  occupied  the same room, i.e.,  room  No.  10. There  was  undoubtedly  a guilty  inclination  and  passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to (1) [1951] 1 All E. R. 804. (2)[1951] A.C. 391, 417. 1422 the inclination and conduct of the wife.  On the other  hand her  conduct  as  shown  by  the  evidence  is  so  entirely consistent  with her guilt as to justify the  conclusion  of her  having  committed adultery with respondent  No.  2  and therefore  the finding of the Courts below as to  the  guilt should be reversed. We  would,  therefore,  allow this  appeal,  set  aside  the judgment and decree of the High Court and pass a decree nisi for  dissolution of marriage.  As adultery has  been  proved respondent  No. 2 shall pay the costs in this Court  and  in the Courts below.            Appeal allowed.