JUDGMENT Henderson, J. - This is an appeal against a decree of the learned District Judge of the 24-Pergs dismissing the Appellant's petition for divorce. The ground upon which the petition was made was the adultery alleged to have been committed by the Respondent at various places with the co-Respondent. The trial was a most protracted one; but we have reached the conclusion that there was no evidence upon which the Petitioner's case could be supported. The first point urged in support of the appeal is that the learned Judge's judgment is null and void. The argument for the co-Respondent was concluded on the 20th of September, 1938. The argument for the Respondent was concluded the next day. The argument for the Petitioner began on the 22nd. On the next date of hearing the Civil Court vacation had commenced. The Petitioner had already filed a petition asking that the arguments might be concluded when the Court re-opened. This petition was rejected. When the case was called on the 24th, Mr. Sarkar, the learned Advocate for the Petitioner, stated that he had no instructions and declined to conclude his arguments. 2. The argument urged in support of this contention is that the learned Judge had no jurisdiction to hear the arguments on a gazetted holiday without the consent of the parties. In our opinion, the learned Judge was right when he said that the 24th of September was not a gazetted holiday. That of course concludes the matter. 3. We are further of opinion that on no view could the judgment be a nullity. The learned Judge certainly had jurisdiction to deliver it and the most that could be said is that it was delivered in an irregular manner. Before we could send the case back on such a ground we should have to be satisfied firstly, that some prejudice had been caused to the Appellant and secondly, that the petition was bond fide. 4. On the ground of prejudice the most that could be said is that, if Mr. Sarkar had concluded his arguments, the learned Judge might have passed a decree for divorce. Had he done so, we ourselves should have been bound to reverse it. No question of prejudice, therefore, can arise. 5. We are further of opinion that the application was not bond fide. I have already pointed out that the trial was an extremely protracted one. Had he done so, we ourselves should have been bound to reverse it. No question of prejudice, therefore, can arise. 5. We are further of opinion that the application was not bond fide. I have already pointed out that the trial was an extremely protracted one. The arguments of the Respondent and the co-Respondent had been concluded and the argument of the Appellant heard in part. We cannot suppose that any body could seriously have thought that it would have been an advantage to the learned Judge to hear the rest of the argument at a much later date when he would have forgotten a great deal of the evidence and the other arguments. We cannot understand why this application was ever made. We note, however, that the learned Judge was under orders of transfer and that he would not be present when the Court re-opened. It was obviously to the advantage of the parties that the case should be concluded rather than they should have been put to the expense of having it heard all over again by some other Judge. It appears that in the petition the reason suggested was the illness of the Petitioner; at that stage, it made no difference whether the Petitioner was ill as his presence in Court was quite unnecessary. As we are of opinion that this application was a mere device, we should certainly not be prepared to remand the case. 6. In support of his case the Petitioner alleged that the Respondent had committed adultery with the co-Respondent on board a ship and in Paris and other places in Europe. The learned Judge held that the Petitioner was not entitled to rely upon adultery committed outside India. In our opinion, this is not correct. The learned Judge undoubtedly had jurisdiction to hear the suit. The Petitioner was entitled to pray for the dissolution of his marriage on the ground that his wife since the solemnization thereof had been guilty of adultery. There is nothing in the Act to suggest that he can only rely on adultery committed within a certain jurisdiction. Were that the case the guilty parties would merely have to go abroad and would then be able to commit adultery with impunity. 7. We have, therefore, heard Mr. Mukherjee on the evidence in support of this allegation. There is nothing in the Act to suggest that he can only rely on adultery committed within a certain jurisdiction. Were that the case the guilty parties would merely have to go abroad and would then be able to commit adultery with impunity. 7. We have, therefore, heard Mr. Mukherjee on the evidence in support of this allegation. The strange thing about it is that the Petitioner offered no evidence whatever. He relies merely upon certain admissions made by the Respondent and the co-Respondent in their evidence. It appears that the co-Respondent had an illegitimate child which he was taking to England. It is not denied that he and the Respondent travelled to Europe on the same boat. They also proceeded overland from Marseilles and in the course of that journey they spent a night in the same hotel in Paris. The Respondent travelled under her own name and did not masquerade as Mrs. Greenwood. There is no evidence that they shared the same cabin or that they shared the same room in the hotel. The explanation of the co-Respondent that he paid half the Respondent's fare as a consideration for her looking after the child is perfectly consistent with his conduct. It is an arrangement which is frequently made and it would be quite impossible to infer adultery from such conduct. 8. The main support of the Petitioner's case was an allegation that the Respondent had given birth to a child in Kurseong, of which he was not the father. The Respondent denies that she ever gave birth to a child at that time in Kurseong. No witnesses have identified her. The only evidence is that they were shown a photograph of the Respondent and they then said that the person in the photograph was the mother of the child. 9. The evidence of these witnesses was taken on commission. There was a direction that the Respondent was to attend at Kurseong so that the witnesses might be able to identify her. As she was ill at the time she made a petition to the effect that she might be excused. The Petitioner's Advocate sent a telegram to the effect that her attendance would not be necessary as he would be satisfied with the identification of the photograph. 10. The learned Judge has seen something sinister in this conduct of the Petitioner's Advocate and Mr. The Petitioner's Advocate sent a telegram to the effect that her attendance would not be necessary as he would be satisfied with the identification of the photograph. 10. The learned Judge has seen something sinister in this conduct of the Petitioner's Advocate and Mr. Mukherjee has criticised that part of the judgment. There is a cross on the photograph. The learned Judge suggests that this cross was surreptitiously put on the photograph in order that the witnesses might not make any mistake in the matter of the identification. In view of this plot the last thing that the Petitioner's Advocate wanted was that the Respondent should actually appear. 11. Now, I am bound to say with all respect to the learned Judge that this appears to me to be quite unreasonable. Supposing the Respondent had been anxious to go to Kurseong and the Petitioner then objected, there might be some ground for suspecting the bond fides of the Petitioner's conduct. That, however, was not the case. The Respondent for good reasons did not want to go to Kurseong at that particular time and the Petitioner's Advocate no longer pressed for her presence there. When the difficulty became apparent at the trial a belated application was made to summon the witnesses so that they might attempt to identify the Respondent. We cannot find any evidence of misconduct here. Though the action was ill advised, we are not prepared to say that it was dishonest. 12. That, however, does not carry the case any further so far as the proof is concerned. We entirely agree with the learned Judge that this identification of the photograph is quite worthless. It was taken possibly as early as the year 1921 that is to say, 17 years before the witnesses were giving their evidence. We can only say that we ourselves would certainly not identify it as a photograph of the Respondent. It is not a carefully taken photograph: it is a mere snap shot. There must have been some change in the appearance of the Respondent between the time the photograph was taken and the time the woman was confined under the name of Mrs. Greenwood in Kurseong. 13. I will, however, assume that the Respondent did give birth to this child in Kurseong. The Appellant is then confronted with another formidable difficulty. There is no proper evidence of non-access. Greenwood in Kurseong. 13. I will, however, assume that the Respondent did give birth to this child in Kurseong. The Appellant is then confronted with another formidable difficulty. There is no proper evidence of non-access. Apart from the decision of the Courts on this important question, the terms of sec. 112 of the Indian Evidence Act are perfectly clear. The fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. 14. Now, the Appellant made no attempt to prove that during the nine months preceding the birth of the child he and the Respondent were throughout living in different places so that it would have been impossible for him to approach her. He contented himself merely with stating in his own evidence that he did not have any intercourse with her since they separated. That evidence simply will not do. It makes no difference that the Respondent did not contradict it. The result is that on the evidence on the record, if the Respondent is the mother of that child, the Petitioner is the father. This incident would obviously not support the charge of adultery. 15. Apart from this incident there is nothing but a long and rambling deposition by the Petitioner himself. He states various occasions on which he saw the Respondent and the co-Respondent together. In view of the delay in the institution of these proceedings I very much doubt whether his suspicions were aroused at the time. For example on one occasion it appears that when the co-Respondent was leaving on a railway journey the Respondent came to see him off at Sealdah station. Apart from one incident there is absolutely nothing in any of the evidence from which adultery could be inferred. 16. In the course of his evidence the Petitioner stated that on the 14th of August, 1937, he paid a visit to No. 64, Ballygunj Circular Road where the Respondent was living. He then says this: I found Greenwood there. Apart from one incident there is absolutely nothing in any of the evidence from which adultery could be inferred. 16. In the course of his evidence the Petitioner stated that on the 14th of August, 1937, he paid a visit to No. 64, Ballygunj Circular Road where the Respondent was living. He then says this: I found Greenwood there. My wife had a big room with a verandah, Greenwood was in the bed room My daughter and also an illegitimate child of my wife were present there. Greenwood and my wife were on the verandah and when they saw me they switched off the electric light. I then heard Greenwoods voice in the bed room, I also heard my wife's voice. 17. Now, it is abundantly clear that the Respondent and the co-Respondent cannot possibly have committed adultery on that occasion. The presence of the children would alone be sufficient to negative any such suggestion. It is clear from the evidence of the Petitioner himself that they were not committing adultery but were hoping that the Petitioner would not realise the presence of the co-Respondent. The Respondent had only a bed-sitting room with a verandah. Her children were living there with her. It would, therefore, be impossible to infer that adultery took place unless there was evidence of previous conduct to prevent the children from being present at any particular time. 18. We very much regret that the trial should have been so protracted because the only conclusion we can reach is that there never was any evidence to justify the petition at all. 19. Finally, we are addressed on the question of costs. In view of the protracted nature of the trial for which both parties were responsible, we cannot say that the hearing-fee awarded by the learned Judge was in any way excessive. So far as this appeal is concerned, the costs have not been pressed for. 20. The result is that this appeal is dismissed. We make no order as to costs. Edgley, J. I agree.