Rankin, C.J.
1. This is a wife's petition for dissolution of marriage brought on 18th July 1927. The learned Judge has dismissed the petition on the ground that on 1st June 1926 there was a previous petition by the wife against the husband whereby she sought and obtained a decree for judicial separation upon grounds of cruelty and adultery. That decree was granted to her on 17th August 1927. The present petition is founded upon the same acts of cruelty and adultery as founded the previous petition. The petitioner explains that she did not wish for a dissolution of marriage partly because she was a Roman Catholic and had scruples against divorce and partly because she desired to see whether her husband would take her back and also because she was able to get maintenance. She asked for a decree for judicial separation on the previous occasion though she was entitled by law to a decree for dissolution of marriage. It appears that these reasons no longer actuate the lady to the same extent. It appears further that she has been unable-to obtain by process of execution maintenance or alimony from her husband. Accordingly she brings another, petition on the same facts without alleging any new matrimonial offence committed subsequent to the decree for judicial separation and asks now for a decree for dissolution of the marriage. The learned Judge has ruled that without new matrimonial offences a new petition cannot be entertained in these circumstances.
2. Mr. Ormond for the appellant has brought to our notice that in Raydon on Divorce, 2nd edition, p. 133, it is said that
after a successful suit for judicial separation irrespective of whether further offences were committed either before or since, a suit for dissolution of marriage may be brought,
and it appears that in Halsbury's Laws of England, Vol. 16, p. 498 a similar statement is made in an article of which the same learned author is one of the writers.
3. The authorities given for the petitions so laid down are three, Green v. Green [1873] 3 P & D 121, Mason v. Mason [1883] 8 P. & D. 21 and Fullerton v. Fullerton [1922] 39 T.L.R. 46; and reference has been made in this connexion to the case of Hall v. Hall [1879] 48 L.J.P. 57. The learned Judge on going through these authorities has come to the conclusion that they do not support the proposition laid down, and upon going through these authorities and certain others, I am forced to the same conclusion.
4. The case law upon this subject may be said to begin early. Before the Matrimonial Causes Act of 1856, the ecclesiastical Courts had no jurisdiction to grant divorce. That relief could only be obtained from the House of Lords. Accordingly one of the first questions raised on the new Act was whether a person who had brought a suit for the relief which was then possible before an ecclesiastical Court could after the passing of the new Act come to the Divorce Court and get relief under the new statute. That matter was passed upon in the case of Evans v. Evans 27 L.J.R. (n.s.). Pro & M. 57, and the case there was that a suit had been brought by a husband for divorce a mansa et thoro, in other words, for judicial separation on the ground of certain acts of adultery. That petition had been dismissed but an appeal was pending. In the meantime, after the new Act, he brought a suit for divorce and the question was whether the Court could entertain that suit. Lord Campbell and the Court over which he presided was of opinion that there was no estoppel that the former suit was for a different object but that here the suit was for a dissolution of the marriage before a tribunal armed with much larger powers and governed by different rules. The same class of case was dealt with in the case of Ciocci v. Cioaoi 29 L.J. (n.s.). 60. There a decree for divorce a mansa et thoro had been obtained in an ecclesiastical Court and the same party, namely, the wife brought a suit under the new Act for a judicial separation on the same ground. The Judge ordinary was of opinion that such a suit could not lie and he pointed out that a great violation of principle would be involved in putting a party twice on his trial on account of the same acts. He also pointed out that it could not be said in this case that the object of the suit was entirely different from that of the suit before the ecclesiastical Court. Those two cases are governed by the circumstance that under the Matrimonial Causes Act there was a new jurisdiction and a new remedy available to the petitioner.
5. Until that Act was passed adultery coupled with cruelty or descretion was not a cause of action for a decree of divorce but gave a much more limited right in ecclesiastical Courts. I now come to the case of Green v. Green [1873] 3 P & D 121, which is one of the cases upon which the petitioner relies. That was a case in which the Judge ordinary had to deal with the petition of a wife who had obtained a decree for judicial separation upon the ground of her husband's adultery. The wife afterwards instituted a suit for dissolution of marriage on the ground of adultery committed by the husband subsequently to the decree for judicial separation coupled with his cruelty to her during the cohabitation. Even in spite of the fact that the cause of action there included a new matrimonial offence subsequent to the decree the Judge ordinary dealt with the matter as one of some difficulty. He came to the conclusion that the principle that a person cannot be vexed twice on the same facts was not applicable to such a case. He says:
The maxim that no one shall be twice vexed for the same cause is not in point, for the subject-matter of the two suits, as well as the remedies sought in them are different. The husband by his adultery subsequent to the former decree has committed a fresh matrimonial offence (for the decree of judicial separation is. not to be treated as a license to commit adultery for the future) and for this offence, aggravated by the previous cruelty, the wife has had no redress.
6. He points out that cruelty condoned is revived by subsequent adultery. He also points out:
If she had obtained a judicial separation on the ground of cruelty she might afterwards-have obtained a decree for subsequent adultery coupled with the cruelty already proved, and the fact that the respondent had previously been guilty of adultery would not have affected her position. It appears to me that the basis of that decision is the fact that there was a new matrimonial offence.
7. The same question came before the Court in the Court of appeal in 1883 in the case of Mason v. Mason 8 P. & D. 21 and Lindley, L.J., there says that the difficulty he had was removed by the authority of Green v. Green L.J. That was a case where a husband had obtained a judicial separation. The wife continued to cohabit with the co-respondent. Then the husband petitioned for a dissolution of his marriage. In these circumstances it was thought that Green v. Green 8 P. & D. 21 was applicable and that the only question was the question of delay.
8. In 1866 the case of Bland v. Bland [1886] P. & D. 237, came before the Judge ordinary
where a wife had obtained a decree of judicial Separation on the ground of the husband's cruelty and continued to live separate from him and the husband subsequently committed adultery, upon proof of such adultery, and of the decree for judicial separation, the Court made a decree nisi for the dissolution of the marriage.
9. Again in Fullerton v. Fullerton [1922] 39 T.L.R. 46 the learned President acted upon the decision in Green v. Green [1873] 3 P & D 121 a ease where a woman obtained a decree for judicial separation on the ground of adultery and afterwards applied for a dissolution of marriage on the ground of desertion prior to the petition for judicial separation and of adultery subsequent to the decree.
10. In these circumstances it appears to me that there is no authority for the proposition that upon the same facts before the same Court armed with the same jurisdiction the petitioner can present a new petition asking for a dissolution of the marriage. It appears to me that it would be not only contrary to the principle but inconvenient, and in some possible cases highly unjust to permit a party to have two suits about the game matter. One can imagine a case of a husband electing not to ask for a dissolution of marriage and then afterwards keeping in terrorism his right to ask for a dissolution of marriage. One can imagine a case in India or elsewhere where a matrimonial case might be presented to the Court in the form of petition for judicial separation in order that the parties might have a preliminary hearing of the evidence and then afterwards at a later stage present evidence on the same matter over and over again. In my judgment any such ruling as is asked for in this case would be opening the flood gates to practice which might be most inconvenient and objectionable.
11. In my opinion this appeal must be dismissed. No order is made as to costs as the respondent does not appear.
C.C. Ghose, J.
12. I agree.