J. L. Kapur, J. - (1.) This is an appeal with a certificate under S. 56 of the Indian 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. 1 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 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.
(2.) The husband was married to the wife at Kharagpur on February, 3, 1943, 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 Chaplain. 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. 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 household shopping." He also pleaded that he stayed with his mother in the same room under his own name and not under an assumed name.
(3.) 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 and 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 where seen by Kira Ram 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 a 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 from 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.;