William Hay (commonly called Lord William Hay), - Appellant; William Gordon, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 31 July 1872 |
| Date | 31 July 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 452
ON APPEAL FROM THE CHIEF COURT OF THE PUNJAUB.
Mews' Dig. tit. Colony, III. Appeals to Privy Council, 5. Principles on which Privy Council acts, 6. Practice, o. Other Matters; tit. India, 3. Legal Decisions. S.C. L.R. 4 P.C. 337; 21 W.R. 11.
ON APPEAL FROM THE CHIEF COURT OF THE PUNJAUB. WILLIAM HAY (commonly called Lord William Hay),-Appellant; WILLIAM GORDON,-Respondent * [July 30, 31, 1872]. The Indian Divorce Act, No. IV. of 1869, sect. 7, provides, that in all suits and proceedings brought under that Act relief is to be given on principles and rules which, in the opinion of the Courts, are as nearly as may be conformable to the principles and rules by which the Court for Divorce and Matrimonial Causes in England acts on and gives relief [9 Moo. P.C. (N.S.) 109]. The alleged cause of action arose in 1859 or 1860, the misconduct of the Wife having come to the knowledge of the Husband in 1862. He took no steps till 1869, when he brought a, suit in India, under Act, No. IV. of 1869, for a divorce a vitneulo, charging his Wife with adultery with the co-Re-spondent A. and others. The suit was heard in the absence of A., and the Wife did not appear. The Court of First Instance dissolved the marriage. On an appeal to the Chief Court, application was made to hear further evidence, as provided by the 17th section of the Act, which the Court refused, and by its decree confirmed the sentence of the first Court:-Held, by the Judicial Committee, that in the absence of A., and the refusal to allow him to be examined to rebut the Plaintiff's case, and considering the inconclusive and unsatisfactory nature of the evidence, coupled with the long delay in bringing the suit, such decree of confirmation could not be main- * Present:-Sir James William Colvile, Sir Barnes Peacock, Sir Montague Edward Smith, and Sir Robert Porrett Collier. Indian Assessor:-Sir Lawrence Peel. 452 HAY V. GORDON [1872] IX MOORE N.S., 103 tained, and the sentence reversed, with costs, in the Courts below and on appeal. The reservations contained in the Limitation of suits Act, No. XIV. of 1859, sect. 1, cl. 16, do not apply to suits for divorce a vincvlo [9 Moo. P.O. (N.S.) 109, 110]. Although, as a general rule, the Judicial Committee will not reverse the concurrent findings of Courts in India on a question of fact, yet there may be circumstances to take such findings out of the scope of the general rule, as in the case of a divorce a vvnculo, in which, by Act, No. IV. of 1869, sect. 17, a decree made by the Court of First Instance is only binding on confirmation by the Chief Court, which decree is not to be considered as a separate judgment [9 Moo. P.O. (N.S.) 118, 119]. In this case the appeal was brought from the Chief Court of the Punjaub, which Court confirmed a decree nisi made by the additional Commissioner of [103] the Umballa division, in a suit for the dissolution of the marriage of the Respondent and his Wife. The suit was instituted by the Respondent under the Indian Divorce Act, No. IV. of 1869, intituled an Act " to amend the Law relating to Divorce (of persons professing the Christian religion) and Matrimonial causes in India." The Defendants were the Respondent's Wife, and the Appellant, who was joined as a co-Respondent. The Respondent filed his petition on the 25th of June, 1869, in the Court of the District Judge of Umballa, and in the petition alleged, amongst other things: - First, that he was on the 19th of July, 1849, married to Louisa Elizabeth Gordon, then Louisa Elizabeth Mercer, Spinster, at Loodiana, in the Punjaub. Secondly, that from his marriage he lived and cohabited with his Wife at different places in India, and that there was no issue of the marriage. Thirdly, that in the year 1853, at Mussourie, Lieutenant [104] Watson (since dead) and the Wife of the Petitioner on divers occasions committed adultery together. Fourthly, that in the years 1859 and 1860, at Simla, the Appellant, then Deputy Commissioner at Simla, and since of No. 2, Cleveland Row, St. James's, London, was in the habit of visiting the House wherein the Petitioner's Wife was residing, and she in the habit of visiting the House wherein the Appellant was residing, and that on divers occasions during that period, the dates of which are unknown to the Petitioner, the Petitioner's Wife in those Houses committed adultery with the Appellant. Fifthly, that in the year 1860 the Petitioner's Wife, at Simla, committed adultery with divers other persons; and the petition prayed for a dissolution of the marriage, and that the Appellant be condemned in costs. The petition was personally served upon the Petitioner's Wife, who did not appear, and has died since the institution of the suit. The Appellant was also personally served with the petition in the beginning of August, 1869, and on the 13th of that month he forwarded instructions to India, and on the 29th of Septembel following, Counsel appeared for the Appellant, who by his answer denied the adultery and prayed that the petition might be dismissed as against him. The cause was assigned for hearing on the 1st of October following, and was, at the instance of the Counsel for the Appellant, adjourned to the 15th of that month, when the issues in the cause were settled, and the further hearing was fixed for November following. No application for any further adjournment was made on behalf of either party, and on the 18th of [105] November, 1869, the cause came on for trial before the additional Commissioner at the Court of Umballa, and on that day, and the following day, Witnesses were examined and cross-examined on behalf of the Appellant and Respondent, the substance and effect of whose examination is stated and commented upon in their Lordships' judgment. On the 19th of that month the additional Commissioner, Mr. J. W. Macnabb, made a decree nisi for the dissolution of the marriage, and condemned the Appellant in costs. This decree was remitted for confirmation, as required by section 17 of the Act, No. IV. of 1869, to the Chief Court of the Punjaub, when the Appellant filed a 453 IX MOOEE N.S., 106 HAY V. GORDON [1872] petition to that Court submitting the following points:-First, that the suit was barred by limitation and unreasonable delay. Secondly, that the evidence...
To continue reading
Request your trial