A v B (CA. 19/1932.) [1932] EACA 32 (1 January 1932)

## APPELLATE CIVIL.

## Before THOMAS and DICKINSON, J. J.

## A. (Appellant) (Original Petitioner)

B. (Respondent) (Original Respondent).

## C. A. $19/1932$ .

Indian and Colonial Divorce Jurisdiction Act, 1926—Kenya (Nondomiciled Parties) Divorce Rules, 1928—Wife's petition for divorce.

$Held$ (10-9-32): That when a wife is the petitioner the adultery should be as strictly proved as when the petitioner is the husband. Should be as strictly proved as when the petitioner is the husband.<br>Provided that the evidence adduced is of such a nature that the<br>Court can feel justified in acting upon it, then the petition should<br>be granted; but where

Kaplan for Appellant.

On 11th March, 1932, appellant consulted her advocate, as she understood respondent was in Nairobi en route for England. On that date she brought her brother into Nairobi to assist her. to obtain the necessary evidence on which to file a petition.

On 12th March, 1932, a petition was filed by the appellant" against her husband alleging in general terms acts of adultery at Moiben, and a particular act of adultery on the evening of 11th March, 1932. No evidence was adduced as to the acts of adultery at Moiben.

The trial Judge (the Chief Justice) dismissed the petition and his judgment was as follows:-

"The petitioner and respondent were married in Nairobi on 7th June, 1930, and a son was born on 5th November, 1930. The copy of the marriage certificate filed shows that the petitioner was twenty years of age and the respondent twentyone at the date of the marriage. The respondent then had no. occupation, but after a visit to England, where the child was born, the respondent became a farmer at Moiben in this Colony.

The petitioner seeks a divorce on the ground of adultery with various persons on various occasions at Moiben and on 11th March, 1932, with a person unknown to the petitioner at Nairobi. I may at once say there is not a scintilla of evidence of any of the vaguely alleged adulteries at Moiben.

In May, 1931, the petitioner was in Nairobi on a visit when. she received Exhibit 2: In that letter the respondent stated that he would not have the petitioner on the farm again because of her conduct in Nairobi. Subsequently the respondent paid the petitioner maintenance at the rate of Sh. 300 per mensem, beginning in July, 1931.

On 11th March, 1932, the petitioner ascertained that her husband was in Nairobi and was leaving for England. The petitioner forthwith brought her brother, C., in from an outlying farm some time in the evening. He collected his friend, Mr. D., and the two, having ascertained that the respondent was in the bar of Torr's Hotel, watched outside. Their evidence is that the respondent took a rickshaw to River Road at about 9 p.m. and went into a brothel. These two witnesses followed in another rickshaw and saw where the respondent had gone. They followed after, they allege, some fifteen to twenty minutes interval, found the room in which the respondent was and entered it. The door was conveniently unlocked. They found the respondent in his shirt, holding his trousers, and a native woman in the bed. The suit is undefended and the respondent has left the Colony.

I am asked on this evidence to find adultery proved, and my attention has been directed to a dictum of Dr. Lushington, in Astley v. Astley (1 Haggard 714). That learned Judge said in the course of his judgment: "In Eliot v. Eliot, mentioned by Lord Stowell in Williams Case (1 Hagg. Con. 302), it was held 'that a woman going into a brothel with a man furnished conclusive proof of adultery.' Now if a married man goes to a brothel, he being perfectly aware of the nature of the house, I will not say that it does not supply an equal presumption of guilt as in the case of a woman, but supposing the Court is not inclined to push this presumption so far as to hold the proof conclusive, still it cannot be denied that such conduct furnishes a violent suspicion—a suspicion which must be rebutted, if rebutted it can be at all, by the very best evidence."

In the case of Astley $v$ . Astley there was ample evidence of improprieties with women of the town and a former visit to the brothel. There was also evidence of the petitioner being alone in a room in the brothel with a woman of notorious character for a considerable space of time at least for a quarter of an hour. This is, strange to say, the minimum time which is alleged to have elapsed between the entry of the respondent into the building and his discovery by the two witnesses with his trousers off.

The Astley case was a suit by the husband for separation a mensa et thoro on the ground of the wife's adultery and the. husband's adultery was pleaded in recrimination. Lord Stowell, in Forster v. Forster (1 Hagg. Con. 144), cites the elder Dr. Bettesworth in Lord Leicester and Lady Leicester as saying that where adultery was pleaded by way of recrimination only, to

bar, it was not necessary to prove such strong facts against the plaintiff as would be required to convict the other party in a suit for divorce.

The facts in this case give rise to thought. The two witnesses wait outside Torr's Hotel, the respondent appears and they follow him down to the brothel in River Road. A sufficient time is given, then the witnesses enter an unlocked door and find the respondent without his trousers and a native woman in the bed. To me it looks like a well arranged tableau. The alteration of the law giving women the right to sue for divorce on the ground of adultery has opened a very wide door, and it behoves Courts to have the strictest proof of adultery before granting a wife's petition.

In this case, in my opinion, the evidence falls short of such proof. The petition is dismissed."

From that judgment the petitioner appealed to two Judges of the Supreme Court in terms of the provisions of Rule 4 of the Kenya (Non-domiciled Parties) Divorce Rules, 1928.

Kaplan quoted Astley v. Astley, 162 E. R. 728. The facts in this case justify presumption of adultery and a suspicion of adultery should be rebutted by the best evidence. No evidence in rebuttal in this case. The trial Judge did not direct his mind to the character of the respondent. Dillon v. Dillon, 163 E. R. 663; Elwes v. Elwes, 161 E. R. 555; Williams v. Williams, 161 E. R. p. 559; Loveden v. Loveden, 161 E. R. 648. Submitted that it was not necessary to prove actual adultery, but that the Court is entitled to presume where surrounding circumstances appear to justify. Aylward v. Aylward, 45 T. L. R. 19. Evidence of hotel register sufficient. Woolf v. Woolf, 1931, L. J. 100, p. 73. Presumption from general conduct of respondent. Submitted that the circumstances of the present case leading to conclusion of adultery abundantly present.

THOMAS, J.—This is an appeal from the judgment of the Chief Justice, dismissing the petition of A. for the dissolution of her marriage with her husband, B., on account of his adultery.

The petition contained allegations of adultery at Moiben. The Chief Justice found that there was not a scintilla of evidence of any of the vaguely alleged adulteries at Moiben. There has been no attempt to disturb his finding in respect of these matters. The petition further contained an allegation of adultery with a woman unknown on the 11th of March, 1932, in Nairobi.

The witnesses in respect of this matter are one, C., a brother of the petitioner, and one, D., a friend of B.

Their evidence was to the effect that they were keeping a watch on the respondent; they saw him at Torr's Hotel bar at 7.30 p.m.; at 9 p.m. he left the bar and got into a rickshaw; they followed him in another rickshaw to a place which they subsequently found to be a brothel. They waited some fifteen or twenty minutes and then entered a room where there was a woman only. They thence proceeded to a room where they heard the respondent speaking. The door was unlocked and they entered. Within they saw a woman in a bed. Near to the bed was the respondent, who was wearing his shirt and holding his trousers in his hand.

A number of cases have been cited to the effect that it is seldom possible to prove actual adultery, but that under certain circumstances there is a presumption of adultery having taken place. The onus of rebutting such presumption is upon the Astley v. Astley, 162 E. R., p. 728; Dillon v. respondent. Dillon, 163 E. R., p. 663; Elwes v. Elwes, 161 E. R., p. 555. Williams v. Williams, 161 E. R., p. 559; Loveden v. Loveden, 161 E. R., p. 648; Aylward v. Aylward, 45 T. L. R. 19; Woolf v. Woolf (1931), 100 L. J. Probate D. & A. Division, p. 73.

The case of Woolf v. Woolf, 100 L. J. R. Probate, D. & A. Division, p. 73, which does not appear to have been referred to at the hearing before the Chief Justice was cited as a conclusive authority that where incriminatory circumstances were proved the Court had no option but to find that adultery had been proved, provided that no sufficient evidence in rebuttal had been called.

I should not attempt to question the various decisions which have been given. I unhesitatingly accept and agree with them.

In such circumstances as have been set out in $Woolf$ v. Wooff, where the respondent was for two nights sleeping in the same room as some unnamed woman, or in the case of Astley $v.$ Astley, where the respondent was for a quarter of an hour in a brothel with some unnamed woman, the presumption that adultery had taken place would seem to be inevitable.

In the case of *Woolf* $v$ . *Woolf*, Lord Hanworth, M. R., in his judgment uses the following language: "This Court fully recognizes the grave responsibility and serious difficulties which confront the Judges of the Divorce Court in administering the law of divorce. Serious efforts must be made to prevent collusion, by which parties may wrongly obtain divorce by devices which prevent a true knowledge of the facts coming before this Court. I need hardly say that if we were merely dealing with a question of the discretion exercised by the President, who has an unrivalled experience in dealing with these cases, we should hesitate long before altering his decision. But this case does not depend solely in the exercise of discretion. The President

has added something to the law, and upon that the appeal comes. before this Court." (His Lordship stated the facts, as set out. above, and having referred to the President's reference to there being no proof of an adulterous inclination by the respondent); continued: "That, I think, is a ruling of law not justified by the authorities."

Now the Chief Justice dealt with the law in his judgment. He was fully aware of the presumption that exists in cases of adultery. He deals with the evidence given in support of the petition. He says: "This is, strange to say, the minimum time which is alleged to have elapsed between the entry of the respondent into the building and his discovery by the two witnesses with his trousers off." Later, he says: "The facts in this case give rise to thought. The two witnesses wait outside Torr's Hotel, the respondent appears and they follow him down to the brothel in River Road. A sufficient time is given, then the witnesses enter an unlocked door and find the respondent without his trousers and a native woman in bed. To me it looks like a well arranged tableau."

By such words the Chief Justice is not, in my opinion, importing any ruling of law not justified by the authorities. He is saying that he is unable to accept the evidence as genuine. He considers that if the evidence is true (he does not say that it. is false), then the whole thing has, in his opinion, been planned by the witnesses with the petitioner. On such evidence he is not prepared to grant the petition.

I am of the opinion that in the view which he took of the evidence he was fully justified in dismissing the petition.

At the end of his judgment the Chief Justice says: "The alteration of the law giving women the right to sue for divorce on the ground of adultery has opened a very wide door and it behoves Courts to have the strictest proofs of adultery before granting a wife's petition." By those words I do not consider that the Chief Justice intended to infer that the actual act of adultery should be proved.

It has been held repeatedly that it is almost impossible to give evidence of actual acts of adultery. In most cases the best evidence that can be adduced is as to acts from which adultery can be presumed. I consider that what the Chief Justice intended was that there should be the same strictness required by Courts in dealing with petitions by the wife, as in petitions by the husband. Provided that the evidence adduced is of such a nature that the Court can feel justified in acting upon it, then the petition should be granted; but where the evidence is open

to suspicion that it is either not true and genuine, or is a deliberate piece of acting or is fraudulent, then the Court would not be justified in accepting the evidence as a matter of course or in granting the petition.

In this case the evidence was such that the Chief Justice was fully justified in refusing to accept it.

$\mathcal{L} = \mathcal{L} \cap$

The appeal must be dismissed.

$\Delta$

DICKINSON, J.-I have had the opportunity of seeing the judgment of my learned brother, Thomas, and I entirely concur with everything which he says and have nothing to add. I consider the appeal should be dismissed.