Daws v Mackenzie Daws (Divorce Cause No. 12 of 1954) [1954] EACA 125 (1 January 1954)

## **DIVORCE JURISDICTION**

### Before CRAM, Ag. J.

### ALBERT HENRY DAWS, Petitioner

# CLEMENTINE MACKENZIE DAWS, Respondent

### Divorce Cause No. 12 of 1954

Matrimonial Causes Ordinance (Cap. 145)—Section 9—Divorce—Standard of Proof—Undefended Cause—Respondent served—Failure to appear—How far probative of guilt—Degree to which silence should be taken against respondent.

The respondent was duly served with a copy of the petition praying for divorce on grounds of adultery but did not enter an appearance. The petitioner obtained leave to bring his petition within the three years' limitation on the grounds of exceptional hardship. The Court was of the view that a prima facie case had not been made out by the petitioner and reviewed the authorities in an endeavour to discover the standard of proof. The Court went on to consider the degree to which the failure of the wife to appear and give evidence in disproof of adultery should be taken against her and considered probative of guilt. In the result, the petition was dismissed.

Held (30-4-54).—(1) A statutory standard of proof is enacted by section 9 of the Matrimonial Causes Ordinance (Cap. 145), to the effect that on a petition for divorce the Court must be satisfied on the evidence that the case for the petitioner has been proved.

(2) A divorce suit is a civil and not a criminal proceeding. The burden of proof might be a variable, and conceivably might be higher in a divorce suit for adultery; a decree in which might result in bastardizing a child than for desertion. $\mathcal{L}_{\mathcal{M}}$

(3) An acceptable standard of proof was that of the "guarded discretion of a reasonable and just man leading him to the conclusion that the adultery was proved", The proof must be strict. There must be more than a probability. The proof of adultery need not be ocular but should be strict, satisfactory and conclusive. It need not go so far as to leave only a remote possibility in favour of the act not being committed, or that the<br>non-occurrence of the act could be dismissed with: "Of course it is possible but not in the least probable".

(4) Where the respondent does not appear to give evidence the Court is entitled to take into account all the circumstances connected with the failure to give evidence in disproof of adultery, but need not take the failure strongly against the party as proof of guilt.

Gaess considered: Ginesi v. Ginesi, (1948) page 179; Churchman v. Churchman. (1945) page 44, 51; Fairman v. Fairman, (1949) page 341; Davis v. Davis, (1950) page 125 (C. A.); Gower v. Gower, (1950) 1 A. E. R. 804 (C.

$\mathcal{L}^{\mathcal{L}} = \mathcal{L}^{\mathcal{L}}$

### Sirley for petitioner.

#### $Ex$ parte.

JUDGMENT.—The petitioner asks for relief by dissolution of his marriage with the respondent on the grounds of her adultery with a named co-respondent against whom he also prays for damages and costs. $\begin{bmatrix} 1 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 &$

This being a matrimonial cause, undefended, and the evidence being of a low standard, it is incumbent upon the Court, before weighing the same, to inquire carefully into the requisite standard of proof.

A very recent case was Ginesi v. Ginesi, (1948) p. 179, where the Court of Appeal applied its mind to the standard of proof required to establish adultery. Tucker L. J. said: — "I am satisfied that Hodgson J. was correct when he said that adultery must be proved with the same degree of strictness as is required for the proof of a criminal offence—and I limit my observations to cases of adultery.' He cited Lord Merriman in Churchman v. Churchman (1945) at page 51 with approval as saying, "The same strict proof is required in the case of a matrimonial offence as is required in connexion with criminal offences properly so called." In the same case Vaisey J. said: — "The close similarity of the offence of adultery" to acts which are properly to be described as criminal to-day is beyond question. The finding that the offence has been committed may be far more serious in its consequences both to the individual and to society than the conviction of a crime. All that is true even in these days when its seriousness is not so widely appreciated and accepted as it used to be. On the evidence in this case I should myself regard a suspicio probabilis of adultery made out. Is that enough however? I think not. Is there a suspicio violenta as Sanchez "Disputationem" 1626 puts it, or is there a vehemens præsumptio which Oughton 'Ordo Judiciorum' Tit. CCXIII paras. 3 and 4 lays down as the requisite standard or degree of proof. Like its English derivative the Latin word 'vehemens' is one of the strongest possible significance. Horace refers to the *vehemens lupus*, the ravening wolf. There is here, in my judgment, a suspicion but not a 'violent' suspicion. There is, in a sense, a presumption, but it is far from being a 'violent' presumption."

Lord Merriman, P., in Fairman v. Fairman, (1949) p. 341 reviewed the standard of proof laid down in Ginesi v. Ginesi with approval and expressly disapproved of Spring v. Spring and Jiggins, (1947) 1 A. E. R. 886; which dispensed with corroboration of the testimony of a wife alleging she had committed adultery, going on to hold that when a witness gives evidence in matrimonial proceedings that she or he has committed adultery with a party to those proceedings, that evidence must be treated with the same circumspection as the evidence of an accomplice in the criminal courts.

In Davis v. Davis, (1950) p. 125 (C. A.) both Churchman v. Churchman and Ginesi v. Ginesi were considered. The suit asked for relief on the grounds of cruelty. Bucknill L. J. said, "I myself think that 'strict' is quite sufficiently apt to indicate the measure and standard of proof in the case of cruelty and that it is unnecessary to bring the question of criminal charges into consideration. I may perhaps point out as a matter of interest that the matter has been considered in the High Court of Australia in Wright v. Wright, (1948) 77 C. I. R. 191, in which that court declined to follow the decision in Ginesi v. Ginesi. The statute (S. 178 of the Supreme Court of Judicature (Consolidation) Act, 1925, as substituted by section 4 of the Matrimonial Causes Act, 1937) requires that the court should be "satisfied on the evidence, that the case for the petition has been proved" I understand that to mean that, if there is any reasonable doubt at the end of the case then the burden of proof has not been discharged and the decree ought not to be granted. If on the other hand the court is satisfied beyond all reasonable doubt, then the petitioner is entitled to a decree. I mention this because it is possible that Barnard J. has set up a slightly too high standard of proof...."

(Barnard J. had said that a charge of cruelty must be proved with the same degree of strictness as a crime is proved in a criminal court citing Churchman $v$ . Churchman. It was submitted, on appeal, that he had misdirected himself.)

In the same case, Denning L. J. said: — "If that has been said.... If it is correct, it marks an important departure; for there is a considerable difference between the standard of proof required in criminal cases and that required in civil cases—a difference which I endeavoured to define in Miller v. Minister of *Pensions*, (1947) 63 T. L. R. 474, to which I need add nothing now, In considering the standard of proof in divorce cases it is important to remember that it has been held by the House of Lords in *Mordaunt v. Moncrieffe*, (1874) L. R. 2 Sc. & Div. 374 that a suit for divorce is a civil and not a criminal proceeding. One would expect to find that, in the ordinary way, the rules of civil procedure would apply to divorce suits and not the rules of criminal procedure. The standards and rules of the criminal courts have been built up out of the high regard which the law has for the liberty of the individual. No man's liberty is to be taken away unless the case against him is to be proved beyond reasonable doubt. The same stringency is not necessarily called for in divorce suits, or at any rate, in divorce suits on the ground of cruelty or desertion, where the court is concerned not to punish anyone but to give statutory relief from a marriage that has irretrievably broken down. I should have thought that the statute itself lays down a sufficient test by requiring the court to be 'satisfied on the evidence that the case for the petition has been proved.' That puts the burden of proof on the person who makes the allegation but it is not a burden of extraordinary weight. It is a burden which exactly accords with Lord Stowell's general rule in Loveden v. Loveden, (1810) 2 Hag. Con. 1, 3: 'The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion.' That was the rule in the Ecclesiastical Courts and it was cited with approval by Tucker L. J. in *Ginesi* y. Ginesi. The court in that case clearly did not intend to introduce a new rule. Whatever may be the position in adultery cases it is clear that Ginesi v. Ginesi gives no authority to the divorce courts to adopt for themselves, in all divorce cases, at one jump, the standard of proof in criminal cases, to say nothing of the rules as to corroboration of accomplices and so forth which apply in criminal courts. There is, it seems to me, a danger of asserting, what the statute does not assert, that the charge must be proved beyond all reasonable doubt, because of the temptation which it affords to give effect to shadowy or fanciful doubts. The standard is a proper safeguard to persons accused in criminal cases; but, if applied to divorce cases, it may mean unjustly depriving an injured party of the remedy he ought to have. In any case *Ginesi v. Ginesi* does not apply in cruelty cases; and I do not think that the court should require in them any higher standard than the statute itself requires, namely that it should be 'satisfied'. It is clear<br>from the judgment of Lord Merriman P. in the recent case of *Fairman* $v$ . *Fairman* that he has never required any higher standard in cruelty cases, and, strengthened by his authority, I say that no more should be required. The Judge here seems to have required more.... It seems to me therefore that the Judge misdirected himself on the standard of proof..."

In Miller v. The Minister of Pensions, Denning J. said of the degree of cogency required in a criminal case before an accused person is found guilty: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable' the case is proved beyond reasonable doubt, but nothing short of that will suffice." And of the degree of cogency required to discharge a burden in a civil case he said: "That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the

tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not."

In Gower v. Gower, (1950) 1 A. E. R. 804, the Court of Appeal again considered Ginesi v. Ginesi in a suit at the instance of a husband who had been divorced by his wife to reduce alimony on the ground of her alleged adultery. Denning L. J. said: "I think the real reason why the Judge fell into error may have been that he required an excessively high standard of proof. I would issue a caveat about the standard of proof. I do not think this Court is committed to the view that a charge of adultery must be regarded as a criminal charge, to be proved beyond all reasonable doubt. I can well understand the Judge applying that standard because of what was said in Ginesi v. Ginesi. But I would like to point out several things in regard to that case. First, it was not fully argued because counsel conceded that the standard of proof of adultery was the same as in a criminal case. Secondly, the decision of the House of Lords in *Mordaunt* $v$ . Moncrieffe was not cited. It was there decided that a suit for divorce for adultery is a civil and not a criminal matter and that the analogies and precedents of criminal law have no authority in the divorce courts. This strikes at the root of Ginesi v. Ginesi which appears to have proceeded on the supposed criminal or quasi-criminal character of adultery. Thirdly no reference was made to the<br>Supreme Court of Judicature (Consolidation) Act, 1925, section 178 (2) as substituted by the Matrimonial Causes Act, 1937, section 4, which simply requires the court on a petition for divorce 'to be satisfied on the evidence that the case for the petition has been proved'. This itself lays down a standard and puts adultery on the same footing as cruelty, desertion or unsoundness of mind. Fourthly, the High Court of Australia, in Wright v. Wright, after full consideration, declined to follow Ginesi v. Ginesi and held that on a charge of adultery the criminal standard of proof was not appropriate. Fifthly, this Court, in Davis v. Davis, held that the criminal standard of proof did not apply to cruelty. So far as the Act of 1925 is concerned, no valid distinction can be drawn between the standard of proof of. cruelty and adultery nor does public policy require any such distinction. These matters may well be sufficient to entitle this Court to reconsider Ginesi v. Ginesi if and when the opportunity arises."

According to section 3 of the Matrimonial Causes Ordinance (Cap. 145), the jurisdiction of this Court under the Ordinance is "subject to the provisions of this Ordinance, to be exercised in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England". That there is some conflict of recent date as to the standard of proof in charges of adultery is patent from the cases cited. I have to notice that section 4 of the Matrimonial Causes Act, 1937 (section 4 referred to by Denning, L. J.), has its counterpart in the Kenya Ordinance at section 9 which, most unusually in legislation, gives a statutory definition of the standard of proof. The standard of proof is in nearly all cases a matter for the law of evidence, but I am satisfied that it is well established that where a particular Ordinance purports to interfere with the ordinary law of evidence and lays down upon whom the burden of proof should lie or the standard of proof which must be attained before the court can arrive at a certain conclusion or finding, then that exception to the ordinary application of the law of evidence must prevail in all matters to which it is applied by that particular Ordinance.

The section runs: — "(1) On a petition for divorce..., (2) If the court is satisfied on the evidence that (1) the case for the petitioner has been proved... the court shall pronounce a decree of divorce...."

Referring back to Ginesi v. Ginesi, as Denning L. J. has noticed, the question of the standard of proof was not debated before the Court of Appeal but the high standard applied by the Judge of first instance was accepted by both counsel. The court however *ex proprio motu* went on to examine the authorities because, as it noticed, there had been no pronouncement on this matter to which the attention of the court had been drawn and it was though desirable to look to the authorities. Tucker L. J. commenced his research among the ancient authorities culled from the records of the Ecclesiastical Courts. Then he cited Sir George Hay in Rix v. Rix, (1777) 3 Hag. Ecc. 74, who, however, went no further than this "Ooular proof is seldom expected; but the proof should be strict, satisfactory and conclusive" with that statement of the law having regard to our statutory standard of proof there could be little dispute. Next, he quoted Sir William Scott in Williams v. Williams, (1798) 1 Hag. Con. 299, an undefended case: — "This proves a great facility, at least, and will make the court more vigilant to see that the two main points in such cases are sufficiently proved, namely, the criminal act and that the person against whom the proof of that act is established is the wife." This remark refers to law now obsolete. He cited the same Judge, in Loveden $\vec{v}$ . Loveden, (1810) 2 Hag. Con. 1, 3, on the requirements to establish such proof: — "The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable, just man to the conclusion." Once more this exposition of a standard of proof would not conflict with section 9 of the Ordinance. Putting forward my view with great diffidence, it is at least difficult to see how the later standards of proof laid down in the Ecclesiastical Court could be transmuted into the standard cited, go much further and to set $up \quad a$ new which seems to $me$ $to$ $proof$ strictissima juris, the proof required $\quad\textbf{in}\quad$ standard of proof, a the criminal courts. The Ecclesiastical Court of ancient times did regard adultery as a quasi-criminal offence and so demanded exacting standards of proof; but as Denning L. J. remarked, in Gower v. Gower, no notice was taken in Ginesi v. Ginesi of the statutory standard of proof set up in the Matrimonial Causes Ordinance. It does seem that the ancient authorities decided at a time when adultery was either a crime or a quasi-crime and there are commentaries which may have affected the judgment of the Court of Appeal as that same court at a later date did so seem to consider-nor am I able to find such strict standard of proof in the final case cited, that of Ross v. Ellison or Ross, (1930) A. C. (H. L.) 1, in the judgments of Lords Buckmaster and Atkin.

In terms of section 3 of our Ordinance, I am bound to regard English decisions as authoritative, subject to there being no conflict with our Ordinance. Where, however, our Ordinance lays down clear provisions for proof then, in accordance with well-established principles, I should require to interpret the wording of the Ordinance. In the event of the wording being identical or very like that of section 4 of the Matrimonial Causes Act, 1937, then I may extract principles from English cases and these principles will be very apt and persuasive to be applied here. That is as regards interpretation of standard of proof I need only read our own Ordinance at section 9 and then I may look for like words in section 4 of the Matrimonial Causes Act, 1937, and, finding them there, look to English decisions interpreting these words.

So doing, I find the principles set forth in Davis v. Davis and Gower v. Gower most apt. I think I may pay less heed to the principles set out in Ginesi v. Ginesi as they may not apply here because of the provisions of section 9 of our Ordinance. They are principles extracted from the ancient Ecclesiastical law on the standards of proof on criminal charges of adultery and might well have been authoritative here because of section 3 of the Ordinance, had it not been for section 9. That case does not take notice of the standard of proof in section 4 of the English Matrimonial Causes Act, 1937, as it seems it might have done and is not an interpretation of the like words to be found in our Ordinance. The instant suit does not have the complication of bastardizing a child which might increase the burden of proof.

I consider that I have to interpret the words in section $9:$ — "If the court is satisfied on the evidence...." It is to be noted that the wording is neither "satisfied beyond reasonable doubt" nor "satisfied on a balance of probabilities", but merely "satisfied". Standards of satisfaction are variable, but I am inclined, in a case of this nature to accept that a standard of "the guarded discretion of a reasonable and just man leading him to the conclusion that adultery was proved". That is, the proof must be strict but not most strict. There must be more than a probability. The adultery must be "sufficiently proved". The proof need not be "ocular", but "should be strict, satisfactory and conclusive". But it need not go so far as to leave only a remote possibility in favour of the act not being committed. It need not go so far that the non-occurrence of the act could be dismissed with, "of course, it is possible but not in the least probable". Any distinction between this standard and proof beyond reasonable doubt is barely discernible.

Turning now to the facts in this case, I am satisfied beyond any doubt that the petitioner has acquired a domicile of choice in this Colony and that the Court has jurisdiction to hear the petition.

The evidence alleging the adultery is much less weighty. The petitioner himself did not see the act take place nor did he go to see what was alleged to be going on at the Princess Hotel, although in his affidavit of 10th February, 1954, he deposes that the respondent and co-respondent were living there in "flagrant" adultery". The respondent, he alleges, and there is no evidence to the contrary, behaved in an outrageous manner and left him, so much so that he was enabled successfully to apply to the Court to have his petition heard within the three years' limitation on the grounds of exceptional hardship and exceptional depravity by drinking and scandalous conduct on the part of the respondent. The respondent is said to have lived at the Princess Hotel with the co-respondent as man and wife for 18 days from 31st January, 1954. That is, at the very time the petitioner was consulting his advocates about an application of urgency to the Court, he knew the adulterous association was going on, but took no steps to see for himself or to send any friend, or even a private inquiry agent to the hotel. As he was in receipt of legal advice, this lacuna is remarkable.

The petitioner then adduced a certain Thomas Angelo Simson who said he was manager of the Princess Hotel at the relevant time. Mr. Simson did not at all impress me as a witness who could be relied upon. He produced what he alleged to be a hotel register of the Princess Hotel. This document is a novelty in hotel registers. It commences on 14th September, 1947 and runs with regularity through the years 1947, 1948, 1949, 1950, 1951, 1952 until 25th March, 1953, with every appearance of being authentic and genuine, but there it stops with only four names on the last page. Then follows a wholly unexplained page with entries which suggest allotment of houseboys to guests. At this place there may have been pages extracted. Overleaf, once more, astonishingly enough is a page of four entries dated 19-1-54, 31-1-54... 5-2-54 and 5-2-54, but that is all and no more entries appear. The second entry is in different ink from any of the others and it is printed instead of written and is "Mr. and Mrs. E. E. Johnson" that being a name identical with the name of the co-respondent. Not a word of explanation is given about this dubious piece of evidence. Either the hotel ceased to keep a register and then, oddly enough, kept one for two weeks about the period of alleged adultery or it kept another register which has not been produced at all or it may not have been in existence as a hotel in the interval apart from two weeks of life. I may say that this fragment of evidence unexplained is enough to make any court suspicious. However, the petitioner does not entirely rely upon this piece of evidence, which, in my view, is not only worthless but derogates from the value of the oral evidence. The manager said that two persons lived at his hotel for 18 days in the same room under the name of "Mr. and Mrs. E. E. Johnson". There is no corroboration of Mr. Simson's evidence apart from what the register is worth and in my view it is worth nothing in corroboration and reflects on Mr. Simson's evidence. There is not even a signature. Even if two persons lived in a certain room as man and wife, and from that the Court. would find an almost irresistible inference of cohabitation and sexual intercourse, that in no way connects these two people with the respondent and co-respondent. The connecting link is a photograph, exhibit 2. Exhibit 2 has been torn into several fragments and pieced together again. It depicts a woman in full evening dress. The piecing together does not detract from its value as a photograph for the purpose of recognition. I do not doubt the petitioner when he says that it is a photograph of his wife. What he does not say, however, is when it was taken and if the sitter has aged since or still closely resembles the likeness, or looks the same in day dress; or whether it was a good or a touched-up likeness, nor does he give details such as colour of hair; eyes, height and build at the relevant time. I do not say that where the person identifying a wife, alleged to be living with another man in an hotel, need be given these details provided he has seen the wife acknowledged as such earlier in the flesh and the photograph is put in as a mere make-weight; but, where the whole case for identification is to depend on a hotel manager recognizing a woman he never saw before, who resided in his hote!, from a photograph presented to him, and the s'andard of proof is that the court must be satisfied, then the burden of proving the recognition to that standard lies squarely on the petitioner. Mr. Simson does not say when or where he has been shown the photograph, or whether it was before or after the couple left the hotel, and whether he had a chance of looking both at the photograph and the woman at one and the same time. The petitioner is likewise silent as to who showed Mr. Simson the photograph, when and in what circumstances and if there were any prompting or suggesting that the woman registered as "Mrs. Johnson" might be the woman in the photograph. 1 am not satisfied that the register produced is the current register of the hotel at the relevant time; I am not satisfied that any couple made an entry in the register "Mr. and Mrs. Johnson" by printing their names on an isolated leaf. No one has come here to say one or other was seen to do so. I am not satisfied that Mr. Simson is a witness upon whose veracity and powers of observation I can rely to prove that the woman depicted in the photograph is the respondent. I am not even satisfied from the evidence of the register and Mr. Simson that any couple at all of the name of "Mr. and Mrs. E. E. Johnson" were at the material time in the hotel. Looking at this most suspicious register for 1954 and to this entry unique in print in the register, I am entitled to entertain the gravest doubts as to its authenticity.

Finally, I have to regard the silence of the respondent who was, I accept, served with a copy of the petition. What am I entitled to infer from this? Is it, in the circumstances, a strong point or a weak one? Am I entitled to take this into account at all? It has not been urged upon me that I should do so. I refer to the case of *Poyser v. Poyser*, (1952) 2 A. E. R. 949 (C. A.) where the Court of Appeal considered the question of the degree to which the failure of the wife to give evidence in disproof of adultery should be taken against her and considered probative of guilt. It was held that the court was entitled to take into account all the circumstances connected with the failure to give evidence in disproof of adultery, but need not take the failure strongly against the party or as a proof of guilt. The learned Lord Justices took into account section 32 (3) of the Matrimonial Causes Act, 1950, which is in identical terms with section 34 of the Matrimonial Causes Ordinance (Cap. 145). They read with it a passage from Latey on Divorce, 14th Ed., page 406:-

"The section is peremptory. A party may give evidence denying his own adultery. If he does not, no questions on the point direct or indirect may be put either by counsel in cross-examination or by the court. If a party goes into the box and does not deny a charge or suggestion of adultery in chief or without sufficient reason fails to go into the box and give evidence when he or she ought to do so, the circumstances will be taken strongly against such party and may be considered so far corroborative of guilt as to make what was previously a weak case against him or her into a strong one. ..."

Singleton, L. J. commenting upon this said: $\rightarrow$

"I shall not be misunderstood if I say that I think that the paragraph $\ldots$ might be reframed in a sense. It is not always that the failure of a person to give evidence will be taken strongly against such a party and the words 'corroborative of guilt' are not, I think, very clear. Birkett, L. J. has pointed out that, if in a criminal case there is evidence of guilt to go before a jury and the accused does not go into the witness-box to give evidence, it is open to the Judge to point out to the jury, if he thinks it right to do so, that the accused man has not gone into the witness-box to deny the charge. Each case must depend upon its own circumstances and I would put this matter in this way. If, in the circumstances of a particular case the Judge thought the case for the petitioner called for an answer and none was forthcoming, it is open to him to have regard to that fact. In other words if there is a prima facie case of adultery and the respondent says 'I am not going into the witness-box to deny that', or the respondent's counsel says 'I will not ask my client a question on that so that he or she cannot be cross-examined upon it' it is a matter which the court is entitled to take into consideration. It is not of necessity a strong point, though it might be in some cases. It is possible to imagine a case in which a party might not desire to go into the witness-box for other reasons altogether, perhaps reasons of health. It is a circumstance, a fact, which the Judge is entitled to consider."

I consider this case of persuasive force being an interpretation of a section of the English Act in identical terms with our own Ordinance. I respectfully agree with the learned Lord Justice and am of the view that the learned treatise writer has been influenced by the principles of the law of criminal evidence to go beyond the effect of the section. Once more I have to emphasize that this is a civil and not a criminal proceeding and that the law of evidence and procedure in relation to suits for relief for adultery is, in my view, wrongly influenced by the fact that, of old adultery was regarded by the Church Courts either as a crime or a quasi-crime. That being my view, I shall endeavour to follow the principles laid down by the learned Lord Justice which seem to me both correct and applicable, in the present case.

In my view, the petitioner did not make out a prima facie case of adultery. He failed to satisfy the Court. In my view, the petitioner's case did not call for an answer. Further, according to his own affidavit, not only was his marriage with the petitioner a mockery; but his self-respect, well-being and happiness were gravely endangered. According to him, she was as bad a wife and a consort as it is possible to conceive. She became inebriated; assaulted him with her hands; wounded him with a knife; was expelled from local hotels; absented herself from his house; caused his landlord to give him notice and finally left him. In that event, the respondent who has already been divorced may be assumed not to have a spark of affection for her husband and it is equally possible that she does not care whether this petition succeeds or not. To be branded an adulteress would mean little to a woman if of the character condemned so fully and ably by the petitioner. In my view, therefore, little or no

weight can be attached to the failure of a wife of this sort to appear and deny the adultery. She may consider, as this Court considers, that there is no case to be made out but is utterly indifferent to the outcome. In these circumstances I find it impossible to attach so much weight to her mere absence and non-denial as to make a case as weak as the present one into one so strong that I should be satisfied the adultery is proved. It would have been different if the parties had lived amicably together and then, on a whim, she had run off to an hotel with another man. In this instance there were many grounds why the respondent should leave the petitioner and not care what he elected to do, not the least of these being his report on her conduct to the police.

Adultery not having been proved to the satisfaction of the Court, I dismiss the petition.