( 396 )
Present: Viscount Haldane, Lord Blanesburgh, and Lord Darling.ELIATAMBY v. ELIATAMBY el at
260—D. C. Colombo, 5fl83.
Divorce—Evidence of adultery—Undelivered letters from wife—Evidenceagainst co-respondent—Evidence Ordinance, No. 24 cf iS95 8. 9,
In an action by a husband for divorce, letters written by, thewife to the co-respondent but not delivered to him, are notadmissible against the co-respondent.
The fact that the co-respondent’s Counsel has based questionsin cross-examination upon the contents of the letters, which hadbeen properly admitted against the wife, does not make theletters evidence against the co-respondent.
A PPEAL from a judgment of the Supreme Court. The action-*• was brought by the plaintiff for divorce from his wife the firstdefendant on the ground of her misconduct with the second defendant.The first defendant filed answer denying adultery. This answer shelater withdrew. The second defendant also denied adultery. TheDistrict Judge found that there was evidence of adultery against thefirst defendant, but not against the second defendant. He entereda decree dissolving the marriage but dismissed the action as againstthe second defendant. In appeal the Supreme Court reversed thedecision of the District Judge, so far as it related to the seconddefendant, and found that he had committed adultery with the firstdefendant.
The facts appear from the judgment of the Judicial Committee.
-( 397 )
July 7, 1925. Delivered by Lobd Darling :—
This is an appeal from a decree of the Supreme Court of theIsland of Ceylon dated December 19, 1923, setting aside a decreeof the District Judge of Colombo, dated May 28, 1923, so far as itrelated to the appellant, and further decreeing that the appellantdo pay to the first respondent the sum of Rs. 5,000 as damages.
The questions for determination in this appeal are whetherthe evidence prove that the appellant has committed adulterywith the second respondent and whether certain matters admittedas evidence were rightly so admitted.
On May 31, 1922, the first respondent instituted a suit in theDistrict Court of Colombo praying that his marriage with thesecond respondent might be dissolved on the ground of her allegedadultery with the appellant and that the appellant be ordered topay the sum of Rs. 50,000 as damages to the first respondent inrespect of the alleged adultery.
The second respondent filed an answer dated August 2, 1922,inter alia denying the allegation of adultery. This answer shewithdrew on October 11, 1922. The appellant had filed an answerdated July 26, 1922, denying the allegation of adultery.
The following issues were framed at the trial by the DistrictJudge:—
Did the second defendant (appellant) commit adultery
with first defendant (second respondent) on various
occasions between July 29, 1920, and February 11, 1922 ?
If so, what damages (if any) is plaintiff (first respondent)
entitled to ?
The second respondent was not called as a witness and theDistrict Judge having heard all the evidence, was of opinion thatthere was no evidence of adultery against the appellant or evidencefrom which adultery could be inferred even if he accepted as truethe evidence of the witnesses called on behalf of the first respondent.
The District Judge found that there was evidence of adulteryagainst the second respondent consisting of—
A verbal admission made by her to the first respondent
on February 10, 1922 ;
Letters in her handwriting and addressed to the appellant
but not delivered to him.
And he pronounced a decree dissolving the marriage, dismissedthe action as against the appellant, and ordered the first respondentto pay the appellant’s costs.
The wife’s admission was made on February 10, 1922, in thepresence of the appellant at a time when she w’as drunk and violent,and the appellant both as a doctor and a friend had been sent for
( 398 }
to attend her. The first respondent did not then separate fromthe second respondent and continued to live "with her till theinstitution of the suit..
The letters are exhibits “ P 2 ” to “ P 11,” and “ D 13 ” and“ D 14.” They are all subsequent in date to the interview atwhich the admission was made, and to the adultery alleged, andwere never received by the appellant. They are alleged to havebeen given to the first respondent’s motor car driver for trans-mission to the appellant, but they were in fact given by the motordriver to the first respondent. There is in exhibit “ D 13 ” internalevidence that the second respondent knew that these letters werenot reaching the appellant.
The appellant is a medical practitioner and a married manand had visited the house of the first respondent, not professionallybut as a friend, over the period during which adultery is allegedto have been committed.
Both the first respondent and the appellant appealed to theSupreme Court and that Court dismissed the appeal of the appellantand on the appeal of the first respondent reversed the decisionof the District Judge so far as it related to the appellant and foundthat he had committed adultery with the second respondent.
The Chief Justice of the Supreme Court held that:—
The evidence, apart from the confession and letters, was not
of such a character that the District Judge was boundto find adultery ; and
That the confession was not in itself evidence against the
appellant but relevant only to judge of the conduct of theappellant upon that confession ; but
That the letters were evidence against the appellant either—
(а)As having been “put in ” by his Counsel at the trial; or
(б)By virtue of the Evidence Ordinance of Ceylon.
The learned Puisne Justice of the Supreme Court agreed withthe Chief Justice as to the admissibility of the letters, but he heldalso that the evidence against the appellant, even apart from theletters, was amply sufficient to justify a finding against him.
The Supreme Court further ordered the appellant to pay to thefirst respondent the sum of Rs. 5,000 in respect of the allegedadultery, and said the damages were awarded for the purpose ofexpressing the reprobation of the Court and society.
From the decree of the Supreme Court the appellant has appealedto His Majesty in Council, and submits that it should be set asideand the decree of the District Judge restored with costs.
The decree against the second defendant, Celia Eliatamby,is based upon the evidence of her own admission of adultery, andupon the above letters written by her which contain admissionsto the same effect. Whether that admission or these letters
( 309 )
constitute sufficient proof of adultery even on the part of thesecond defendant is a question which their Lordships need notfurther pursue, for against this decree there is no appeal.
As to the appellant, their Lordships, after carefully consideringall the evidence in the case, agree with the District Judge and theChief Justice, that apart from the admission of Mrs. Eliatambyand the letters addressed by her to the appellant, but never deliveredto him, there is not sufficient evidence to prove him guilty ofadultery with her.
With regard to the verbal admission of adultery made by CeliaEliatamby, when drunk, in the presence of the appellant, theirLordships are of opinion that it is not evidence against the appellantfor any purpose whatever.
It now remains to consider the question whether the woman’sletters are for what they are worth legal evidence against theappellant. As to this their Lordships are of opiftion that none ofthe sections of the Evidence Ordinance in force in Ceylon applyin such a way as to affect the ordinary rules of evidence by whichthis particular matter must be decided. These letters were putforward as an essential part of the case against the appellant,were, as a series, opened by Counsel for the plaintiff, and he actuallyread all but two of them to the Court. To this course, as theChief Justice observes, it was impossible for the appellant’s Counselthen to object, for they were evidence against their writer thesecond respondent. But that Counsel in the trial Court and in theSupreme Court contended that they were not admissible as evidenceagainst his client, and this was in the trial Court admitted byCounsel for the plaintiff to be so.
The letters having being read as part of plaintiff’s case andbeing clearly admissible against the defendant, Celia Eliatamby asagainst whom they were tendered, it is contended that notwith-standing plaintiff’s Counsel’s admission to the contrary on thebasis of which the trial proceeded, they became evidence againstthe present appellant by reason of hiq Counsel having in cross-examination founded questions upon them, and this contentionthe Supreme Court has held to be well founded. In the words ofthe Chief Justice : “As soon as these letters were used by thedefence for the purpose of challenging the plaintiff’s honour andbona fides they became part of the case between these two partiesfor all purposes. They were * in ’ as between these two parties.”In this view their Lordships cannot concur. Before the defendant’sCounsel asked a single question regarding them they were “ in ”as part of the plaintiff’s own case, and therefore, questions andarguments might properly be founded upon them without inany way adopting them as part of the evidence produced on behalfof this appellant—for appellant’s Counsel had a right to rebutthat case, and to destroy it, by means of its own component material.
( 400 )
There is no identity or analogy, as suggested in argument, betweenthis case and one in which a defendant’s Counsel makes evidenceagainst his client of a document not already put in, by askingquestions on its assumed contents—which questions then lead to itsnecessary production. There he brings in a fresh document,,but these letters although all not read were all treated as put inby the plaintiff’s Counsel. A man does not draw his sword uponanother who being manacled, snatches the weapon from anassailant’s hand, and strikes him with it.
The Chief Justice relied on the Evidence Ordinance section 9,-as making these letters evidence, because it declares that facts“ which show the relation of parties by whom any fact in issue wastransacted are relevant.” And he observed that: “ It is difficultto see how it can be said that these lettero do not show the relationof the parties to this interview.” But it is precisely because theex parte statement of one person made in the absence of the otherwhom it concerns docs not show the relation of the parties, especiallyin regard to a third party (but merely amounts to a version byone of them possibly false), that the law of England excludessuch statements as hearsay—as not being evidence.
The Chief Justice gave his view as to the effect of the EvidenceOrdinance, and in this their Lordships regret to be entirely unableto concur. Ho came to the conclusion that the Evidence Ordinanc?
vhich is merely the application to Ceylon of the Indian EvidenceAct—had practically swept away all the English law relating tohearsay. Were this so the consequences must long ago have beenmanifest in the decisions in the Courts of India, and in those of theJudicial Committee of the Privy Council, yet in 1872, the veryyear of the passing of the Indian Evidence Act, it was laid down,in Hay v. Gordon} that “No statements of Mrs. Gordon (therespondent in divorce), written or verbal, are according to well-known principles of law admissible against Lord William Hay ”(the respondent). Their Lordships have been unable to findany authority for the contention that since that case was decidedany other rule has prevailed in the Indian Courts.
The Chief Justice himself had no doubt as to the revolutionaryconsequences of his decision, for'he used these words :—
“ I am conscious that by bringing the letters under this headI am in fact laying down that any intercepted corre-spondence between the respondents in divorce casesmay be considered as evidence against the person towhom it is addressed, and I appreciate the danger of thislatitude, but our duty is to interpret the words of thesection.” 1
1 Bengal L. R. JO»P- 201.
In their Lordships’ opinion no words of the section compel to sucha conclusion. The words of the Ordinance in this regard areprecisely those of the Indian Evidence Act, mid, therefore, were theyto be construed as the Supreme Court has now held that theyshould, the same reversal of the well understood principles ofEnglish law as are applicable in such cases as this would have beenaccomplished in India as well as in Ceylon. The principle is oneso reasonable in itself, fundamental and so long established, thattheir Lordships cannot conceive of its being overthrown and dis-carded except designedly, and by words so plain that their meaningwould be open to no manner of doubt.
Their Lordships will, therefore, humbly advise His Majestythat this appeal should be allowed, the judgment of the DistrictJudge of Colombo in favour of the appellant restored, and thatthe appellant should have the costs of this appeal and in theCourts below.
ELIATAMBTY v. ELIATAMBY et al