Pritam Singh Pattar, J. - (1.) This is a first appeal filed by Wing Commander Brain J. Cannel against the order dated July 20, 1972 of the District Judge, Ambala, dismissing his petition under Sec. 10 of the Indian Divorce Act 1869 against his wife Mrs. Fredda Anne Cannel.
(2.) The facts of this case are that the appellant was married with Mrs. Freda Anne Cannel, Respondent No. 1, at Ambala on March 1, 1948 according to Church of England rites. she bad given birth to an illegitimate daughter on Jan. 29, 1946 before her marriage with the appellant. From the loins of the appellant, she gave birth to a son on Sept. 10, 1948. Both of them lived as husband and wife amicably from March, 1948 till early 1953. The appellant was posted at Ambala and it is alleged that there the respondent No. 1 developed illicit connections with Fit. Lt. Dastoor with the result that they separated. The appellant was then posted at Dehradun and Respondent No. 1 went to Saharanpur where her elder brother lived. From 1953 onwards, the appellant and the Respondent No. 1 lived separately. In the year 1967, the appellant come to know that the Respondent No. 1 was leading an adulterous life with Mr. Clifford Davier, Respondent No. 2 at Saharanpur. He then filed an application for dissolution of his marriage with Respondent No. 1 under Sec. 10 of the Indian Divorce Act, 1969 (hereinafter called the Act) on the ground that she was leading an adulterous life with Respondent No. 2. The respondents in their written statements denied the allegations made against them in the petition. The respondent No. 1 further alleged in her written statement that the appellant himself was guilty of adultery with one Nova Willmer, with whom he developed illicit connection in the year 1954 and started living in adultery with her. On these pleadings of the parties, the following were framed by the District Judge:- (1) Whether the Respondent No. 1 has been and is living in adultery with Respondent No. 2 as alleged in the petition? (2) Whether the petitioner is living in adultery with Nova Willmer and if so to what effect ? (3) If issue No. 1 is proved, then whether the Respondent No. 1 is entitled to any alimony and if so to what amount? (4) Relief.
(3.) The learned District Judge held that it was proved that the petitioner has been guilty of adultery with Nova Willmer and he decided issue No. 2 in favour of Respondent No. 1. On issue No. 1 it was held that the Respondent No. 1 was found to be guilty of adultery with Respondent No. 2 for the last some years prior to 1969 and be decided this issue in favour of the petitioner. No finding on issue No. 3 was given. The learned District Judge bled that since the petitioner himself was found to be guilty of adultery, therefore, in view of the proviso to Sec. 14 of the Indian Divorce Act, he is not entitled to decree for divorce. As a result, the petition was dismissed, but the parties were left to bear their own costs.;