EBERT v. EBERT

087-NLR-NLR-V-22-EBERT-v.-EBERT.pdf


( 310 )
1921.
Present: Schneider A.J.
EBERT v. EBERT.
84—P. C. Kalutara, 81,114.
Maintenance—Application by wife—Refusal of wife to live with husbandon ground of his adultery—Proof of adultery.
To establish adultery it is not necessary to prove the direct factof adultery, nor is it necessary to prove a fact of adultesy in timeand place. Thefact may be inferred from circumstances whichlead to it by fair inference as a necessary conclusion.
f j XHE 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 beencondemned to pay a monthly allowance of Rs. 50 for the main*tenance of his wife (the complainant), apd another sum of Bs. 50for the maintenance of the child of their union, which is about sixmonths of age. The wife refuses to Ijve with the husband on theground of his adultery with a Mrs. Daniel, and also on the groundof oruelty. The latter ground, the Magistrate has held, has notbeen proved, and rightly so on the evidence. The order is resistedon the ground that there is no proof of adultery subsequent to themarriage. The appeal, therefore, turns on this one point. At onestage of the argument I was inclined to think that, as contendedfor on behalf of the appellant, there was no proof of adultery. Butfurther consideration has made me think otherwise. I accept, asproved by the evidence adduced, that the defendant was, prior tohis marriage to the complainant, guilty of adultery with a Mrs.Daniel, who was a Miss White. Her father regarded the intimacybetween her and the defendant with such grave disapproval that heasked her and her husband to leave his house. His evidence inthis case is that he thought the defendant and his daughter guiltyof a criminal intimacy for about two and a half years, and that hehad reported the matter to the General Manager of the Railway.The defendant and himself are guards employed in the CeylonGovernment Railway. He produced P 16, a letter written bythe defendant to Mrs. Daniel. Defendant admits he wrote thisletter, but endeavours to explain away its contents. But thatexplanation will not bear examination. The Magistrate haslightly rejected it. From its contents, from the evidence of Mr.White, and from the evidence of the complainant that the defend-ant admitted to her his misconduct with Mrs. Daniel, I am satisfiedthat there is evidence to prove that the defendant prior to hismarriage to the complainant had committed adultery with Mrs.Daniel. The question, therefore, is whether, taking that to be afact proved, adultery subsequent to marriage may be inferred fromthe conduct of the defendant. I think it may. The complainantand defendant were married in April, 1919. In February, 1920,the complainant came to her mother in Kalutara, leaving thedefendant in Matara. The correspondence proves clearly that hepromised to allow her Rs. 200 per mensem, and to come to Kalutarahimself when he retired in June, 1920. The correspondence also. 'proves that she came to Kalutara with only a sum of Rs. 50 in herhands (P 2). The evidence is that she received another sum ofRs. 60 after she came to Kalutara. In anticipation of her confine-ment and for her maintenance she was compelled to make purchasesfrom a shop in Colombo and one in Kalutara. The defendantrepudiated his liability for these purchases and published a noticein the newspapers. In May, 1920, the complainant wrote to him
1921.
Ebert v.Ebert
( 312 )
1921*
SOBNWPBR
A.J.
Ebert v.Ebert
(P 4) about this advertisement. She received no reply. Shewrote to him subsequently; her letters remained unanswered. InNovember she instituted the present proceedings. The defendantadmits that since November, 1920; he has been living with Mr.-and Mrs. Daniel in Colombo. The letter P 16 proves the guiltyafCeotion between the defendant and Mrs. Daniel before the defend-ant's present marriage. There is some evidence that in March,after his wife left for Kalutara, he took Mr. and Mrs. Daniel to livein Colombo, but this is not the best possible evidence. The defend-ant, however, admits that since November he has been living withMr. and -Mrs. Daniel in their house. He says a son of his-of 24years of age by a former marriage has also been living there. Thepresence of his son or of Mr. Daniel in the house is of little value inthe light of the relationship which had existed between the defend-ant and Mrs. Daniel before this event. This living in the samehouse is the opportunity which has to be taken into consideration.The numerous letters produced by the complainant prove thatthe defendant had deserted her since February, 1920; that he lefther destitute, and took no notice whatever of the-birth of the childin June. There, therefore, are three facts which should be takeninto consideration: guilty affection, opportunity, desertion of thelawful wife. Considering that defendant was under no maimer ofcompulsion to live with Mr. and Mrs. Daniel, the inference is notonly fair, but irresistible, that he has been guilty of adultery withMrs. Daniel since his marriage. I would quote with approval thefollowing from the judgment of Lopes L.J. in the case of Alien v.Alim and Bdl1: “ It is not necessary to prove the direct fact ofadultery, nor is it necessary to prove a fact of adultery in time andplace, because, to use the words of Sir William Scott in Lovedenv. Loveden,2 ‘ if it were otherwise, there is not one case in a hundredin which that proof would be attainable; it is very rarely indeedthat the parties are surprised in the direct fact of adultery. Inevery case almost the fact is inferred from circumstances which leadto it by fair inference as a necessary conclusion; and unless thiswere the case, and unless this were so held, no protection whatevercould be given to marital rights.' To. lay down any general rule,to attempt to define what circumstances would be sufficient and whatinsufficient upon which to infer the fact of adultery is impossible.Each case must depend on its own particular circumstances. Itwould be impracticable to enumerate the infinite variety of circum-stantial evidentiary facts, which of necessity are as various as themodifications and combinations of events in actual life. A juryin a case like the present ought to exercise their judgment withcaution, applying their knowledge of the world and of humannature to all the circumstances relied on in proof of adultery, andthen determine whether those circumstances are capable of any
1 (2894)mL. R. (C. A,) Pro. 24&, at pages 251-252. 2 Hagg. Cons. I, at page 2.
( 813 )
other reasonable solution than that of the guilt of the partjf soughtto he implicated.”
*1 should, therefore, hold it proved that the defendant has beenguilty of adultery with Mrs. Daniel, and that the complainant hassufficient reason for refusing to live with the defendant.
I dismiss the defendant’s appeal, with costs.
1921.
Schneider
A.J.
Ebert v.Ebert