JUDGEMENT : NEVASKAR, J. This appeal arises out of a petition submitted by plaintiff Major Stanley Barker for dissolution of his marriage with the respondent Mrs. Patricia May Barker and for the custody of their only surviving child Miss Yvonne Anne Barker. 2. The petitioner Major Barker was married to the respondent on 19-1-1940 at St. Mary's Church, Parel, Bombay. At the time of marriage he was a bachelor and respondent, who was then Patricia May Bills, was a spinster. It is alleged that after this marriage the petitioner lived and cohabited with his wife at Bombay, Poona, Agra, Ranchi, Dinapore, Namkum, Bangalore, and lastly they lived, cohabited and resided together at Mhow from about March, 1950 to about February, 1951. They had two issues of this marriage, a daughter born on 26-6-1940 and a son Stanley Barker born on 30-11-1943. The latter died on 5-7-1951. The petitioner in his petition referred to respondent's misconduct during the period of his absence from India for service abroad during war and further that on his return from overseas service in about July or August, 1947, he condoned her for her past misconduct because of their children and they resumed cohabitation. He was transferred at various places thereafter, viz., Agra, Dinapore, Ranchi and Bangalore and the respondent lived with him at those places. From Banglore he was posted at Mhow where too she lived with him during the period mentioned above. In February, 1951 the respondent went to McCluskiegunj where petitioner's aunt was residing as she wanted to see their children who were receiving education at Ranchi. She lived there for some time at the place of his aunt and later began to live separately. There, it is said, she developed an affair with the co-respondent. In July, 1951 their son died in the school at Ranchi. The respondent thereafter went to Banglore. Then the petitioner learned from his friend Mr. Aziz Eisa that she was indulging in adultery there and he thereupon asked Mr. Aziz Eisa to collect materials about this fact. Mr. Eisa sent letters dated 11-9-1951 Ex. P/4 and dated 23-10-1951 Ex. P/7 alleged to have been sent to the respondent by the corespondent suggesting their adulterous connection. Then the petitioner learned from his friend Mr. Aziz Eisa that she was indulging in adultery there and he thereupon asked Mr. Aziz Eisa to collect materials about this fact. Mr. Eisa sent letters dated 11-9-1951 Ex. P/4 and dated 23-10-1951 Ex. P/7 alleged to have been sent to the respondent by the corespondent suggesting their adulterous connection. On further enquiries by him in February 1952, the story about the adulterous connection between the respondent and co-respondent was confirmed and respondent herself, it is said, admitted her guilt in that regard. On learning this the petitioner never thereafter cohabited with her. Petitioner also relied upon a letter dated 2-11-1952 said to have been written by the respondent wherein she has admitted the fact that she had been in love with the co-respondent at McCluskiegunj and that there they lived as man and wife. The petitioner further averred that he, being in Army Medical Corps, was required to send Rs.250/- per month as allowance to the respondent. His case is that after the respondent went to McCluskiegunj he neither cohabited with her nor condoned her for her adultery with the co-respondent. 3. On these allegations the petitioner prayed for dissolution of his marriage with the respondent. 4. Neither the respondent, nor the co-respondent appeared at the hearing. Respondent sent a written statement by post. The case was however ordered to proceed ex parte against her as she failed to appear. 5. The trial Court recorded evidence adduced on behalf of the petitioner which consisted of the oral testimony of himself, his aunt Mrs. Manual of McCluskiegunj and his brother Morris Barker. Besides this, the petitioner produced letters Exs. P/4, P/7 and P/10 said to have been in the handwriting of the co-respondent, the former two purporting to be addressed to the respondent and the last one to the petitioner himself. Besides these, a letter said to be in the handwriting of the respondent and purporting to be meant for the corespondent (Ex. P/11) is also produced. 6. The learned Judge on the basis of the aforesaid testimony and other material produced before him on behalf of the petitioner came to the conclusion that the story of an alleged adultery of the respondent with co-respondent during the period subsequent to respondent's departure from Mhow in February, 1951 had not been established. P/11) is also produced. 6. The learned Judge on the basis of the aforesaid testimony and other material produced before him on behalf of the petitioner came to the conclusion that the story of an alleged adultery of the respondent with co-respondent during the period subsequent to respondent's departure from Mhow in February, 1951 had not been established. According to the learned Judge, the petitioner's statement did not impress him as straight and trustworthy. He held Mrs. Manual to be an interested witness. Evidence of Mr. Morris Barker, younger brother of the petitioner, was considered by him to be of' little importance. While dealing with the story given by the petitioner the Judge thought that it was not easy to believe that the petitioner would came to know of his wife's misconduct at McCluskiegunj in February, 1951 through an army officer posted at Mhow who happened to go there on leave. According to the learned Judge she had parted company with the petitioner, as per his statement, for taking her children to Ranchi in January or February, 1951. He considered it strange that petitioner's aunt Mrs. Manual did not inform him of his wife's adultery when things had gone to such an extent that the respondent's relation with the co-respondent and others became a talk of the town and she had to take the drastic step of turning her out. Further it was considered to be equally strange that no independent witness could be found to support this illicit relation which had become a matter of public knowledge at McCluskiegunj. He also considered it curious on the part of the petitioner that although he came to know of his wife's misconduct in February, 1951, he continued to pay her allowance of Rs.300/- per month regularly. The learned Judge further held that, if the petitioner's story with regard to co-respondent having sent Ex. P/10 and of his having enclosed with it Ex. P/11 be considered to be genuine, corespondent would have been helpful to the petitioner and would have appeared as a witness in support of the petitioner. The learned Judge did not rely upon the proof of Exs. P/4, P/7 and P/10 by Mrs. Manual and he further was inclined to hold that the handwriting of these documents differed from that of Ex. P/12 produced by Mrs. Manual from her possession. According to Mrs. The learned Judge did not rely upon the proof of Exs. P/4, P/7 and P/10 by Mrs. Manual and he further was inclined to hold that the handwriting of these documents differed from that of Ex. P/12 produced by Mrs. Manual from her possession. According to Mrs. Manual although she was required to turn out the respondent from her house for her misconduct with the co-respondent she continued to be on visiting terms with the mother of the co-respondent. This appeared to the learned Judge not easy to believe. He further held that if such a deep love had sprung up between the respondent and co-respondent that she was prepared to suffer the ignominy of being turned out and persisted in staying at McCluskiegunj instead of returning to Mhow, why should she have left the place in July or August, 1951 for Banglore and that too for the house of a Mohamadan one Aziz Eisa with whom her sister was living as a keep. The delay in making the petition as late as in January, 1953 was also considered significant. In the statement of the petitioner the learned Judge put questions regarding the allegations made by the respondent in her written statement sent by post and also put to the petitioner the alleged copies of the letters sent by petitioner to co-respondent in September, 1952 and January 1953. Substance of these was admitted by the petitioner though not the words used therein. As a result of these findings he held the story of respondent's adultery with co-respondent not proved. He therefore dismissed the petition. Against this decision the petitioner has come up in appeal. 7. Mr. Frank Anthony, who appeared for the petitioner in this appeal, contended before us that the whole approach of the learned Judge to the case was erroneous. He accepted a paper purporting to be a written statement sent by the respondent by post as a substantive document and put questions to the petitioner on the basis of allegations made therein. Then he also put what purported to be copies of certain letters in the possession of the respondent to the petitioner without the originals being shown to him. All this was wrong, urged the learned counsel. Then he also put what purported to be copies of certain letters in the possession of the respondent to the petitioner without the originals being shown to him. All this was wrong, urged the learned counsel. He further contended that by S.51, Indian Divorce Act, a specific mode of proof of relevant facts by parties is prescribed and where this is not followed by the respondent, her written statement sent by post was accepted as a good prima facie evidence. It was urged relying. upon - 'F.E. Geyer v. M.M. Geyer', AIR 1949 Lah 34 (FB) (A) and - 'Gibbs v. Gibbs', AIR 1933 All 427 (B), that direct evidence of adultery is well-nigh impossible and conclusions have got to be based by the Courts on circumstantial evidence and such an evidence of a very strong character exists in this case. According to the learned Counsel the statement of Mrs. Manual was straight and there was not a grain of exaggeration in it. There was no good reason to disbelieve either the story given by her in her statement as regards the illicit intimacy between the respondent and co-respondent at McCluskiegunj or that part of her statement bearing on the proof of Exs. P/4, P/7 and P/10. The conduct of Mrs. Manual in not communicating with her nephew for the misconduct of his wife was, according to the learned counsel, natural and befitting an elderly relation who must have been anxious not to bring about unhappy disruption in her nephew's home Explanation given by her that she did not wish to tell tales should have been accepted by the trial Court. The learned counsel also laid stress on the fact that Ex. P/11 which purported to be a letter addressed by the respondent to the co-respondent should have been held to be proved by the statement of the petitioner, who is a responsible Army Officer. He must be taken to be acquainted with his wife's handwriting. He knew the consequences of perjury. How could he from witness-box say that Ex. P/11 was in his wife's handwriting had it really been not so? 8. Failure to examine the co-respondent as a witness could not be reckoned as a point against the petitioner. It was not part of his duty to do so. He knew the consequences of perjury. How could he from witness-box say that Ex. P/11 was in his wife's handwriting had it really been not so? 8. Failure to examine the co-respondent as a witness could not be reckoned as a point against the petitioner. It was not part of his duty to do so. In fact according to the learned counsel Ss.51 and 52, Indian Divorce Act make it clear that barring the exception contained in S.52 where under the circumstances given in that Section wife or husband can be a competent and compellable witness, in no other case parties are compellable witnesses of any other party. He relied upon the case - 'De Bretton v. De Bretton', 4 All 49 (C) in this connection. 9. Conduct of the petitioner in continuing payment was explained by him by stating that he, as an Army Officer, could not refuse to maintain his wife as long as no proceedings of divorce are actually instituted by him. The correspondence relating to loan on his policy assigned to the respondent was a perfectly business proposition and cannot suggest anything else stated Mr. Anthony. The learned counsel met the suggestion of collusion by referring to Exs. P/6 and P/7. How could collusion at the trial or just before it bring into existence a letter addressed to Mrs. P.M. Barker in October, 1951, he asked. 10. As regards non-examination of Aziz Eisa as a witness it was contended in the first place that all that Eisa could have proved is how he came by Exs. P/4 and P/7 and since these are independently proved, examination of Aziz Eisa becomes immaterial for proving adultery between the respondent and co-respondent and secondly in case the Court thought his evidence material he could have ordered the petitioner to examine him. Things cannot go in such cases by default. 11. Lastly, it was urged that the guilty attachment between the respondent and co-respondent is amply proved by letter Exs. P/4, P/7 and P/11, while the fact of existence of opportunities sought and obtained when intercourse might have taken place is proved by the evidence of Mrs. Manual. He therefore prayed for setting aside the decision of the Court below and for passing a decree nisi. 12. P/4, P/7 and P/11, while the fact of existence of opportunities sought and obtained when intercourse might have taken place is proved by the evidence of Mrs. Manual. He therefore prayed for setting aside the decision of the Court below and for passing a decree nisi. 12. It is clear that the only question for consideration is whether the respondent was guilty of committing adultery with the co-respondent while she stayed at McCluskiegunj between February 1951 to July 1951. 13. The learned Judge did find that there was thereafter no resumption of cohabitation or con-donation and therefore, if it is established that during the period aforesaid there was guilty attachment between the respondent and co-respondent and there were opportunities sought and secured by them when the intercourse might have taken place, the petitioner would be entitled to a decree nisi. It is also clear that the only evidence call it circumstantial, is afforded by the statement of Mrs. Manual regarding the material period under consideration. If this evidence is considered to be reliable and sufficient then slight corroboration of it will be enough to enable the petitioner to succeed. 14. The statement of Mrs. Manual, who is the aunt of the petitioner is of consequence not only because she supplied direct evidence of opportunities sought and taken by the respondent and co-respondent and undue familiarity between them during the material period but also because hers is the only evidence to prove documents Exs. P/4, P/7 and P/10 which are said to be letters by the co-respondent, former two to the respondent and the last one to the petitioner. These letters Exs. P/4 and P/7 are no doubt not sent by the co-respondent to the respondent during the material period under consideration but a few months after she left for Banglore from McCluskiegunj; but if these letters are proved they exhibit a guilty attachment at least on the part of the co-respondent and if the feelings exhibited in these 'letters are proved to be reciprocated, they no doubt would supply evidence by subsequent conduct of what may fairly be called criminal attachment and not merely friendly feelings. Her evidence will therefore have to be judged with a certain amount of scrutiny. Material part of the statement of Mrs. Manual is as follows: "Patricia Barker came to live with me in 1951 end of January or early in February. Her evidence will therefore have to be judged with a certain amount of scrutiny. Material part of the statement of Mrs. Manual is as follows: "Patricia Barker came to live with me in 1951 end of January or early in February. She got very friendly with a young man named Terrance Williamson and stayed away frequently from house at night. She went out alone and did not come back. I saw her with Williamson drinking at the club and she became a talk of the town and I heard a lot about her. I spoke to her about it and told her that if she wished to carry on like that she would have to leave my home. I gave her opportunities and she prepared to go. She packed up and went to live with one Mrs. Cocha where she met Williamson. They drank heavily together. They went from bad to worse." There is nothing in this statement which is intrinsically not worthy of belief. The learned District Judge was not prepared to rely upon her testimony firstly because she is related to the petitioner, being his aunt and secondly her conduct in going to the length of turning the respondent out and yet not communicating with the petitioner appeared to him strange. He therefore thought that the story of alleged intimacy with the co-respondent was a myth. The witness was asked a question regarding her failure to intimate respondents' conduct to her husband and she explained that would be tale-telling and her act would have resulted in bringing about disruption of her nephew's home. There is nothing on record to justify me not to accept this explanation which is natural. 15. It is too much to imagine that there is a regular conspiracy between the petitioner and Mrs. Manual and for helping him in enabling him to obtain, a divorce she would go to the length of attributing adultery to an innocent party, viz., the respondent. The learned Judge of the Court below was also not satisfied about the proof of Exs. P/4, P/7 and P/10 by Mrs. Manual. According to him the writing of Ex. P/12 which she produced from her custody as being his letter to her regarding some business matter did not appear to be in the same hand as Exs. P/4, P/7 and P/10. P/4, P/7 and P/10 by Mrs. Manual. According to him the writing of Ex. P/12 which she produced from her custody as being his letter to her regarding some business matter did not appear to be in the same hand as Exs. P/4, P/7 and P/10. Although it is permissible for a Court to compare the handwriting it is generally recognised to be hazardous test and should not be resorted to except in clearest cases without the aid of experts. It is held in - 'Rudragowda v. Basangouda', AIR 1938 Bom 257 (D), that comparison of handwriting by Court without the guidance of an expert is hazardous and recognisably inconclusive. Even with the guidance of an expert it is still inconclusive. It appears from evidence that both the witness and the co-respondent lived at McCluskiegunj. He was the secretary of the club of which Mrs. Manual was a member. Under these circumstances she had opportunity of seeing his handwriting. She states on oath that the writing in Exs. P/4, P/7 and P/10 is that of the co-respondent. The Court appears to have disbelieved her on this point because of its opinion about the dissimilarity in the writing in these letters and one produced by her as Ex. P/12. I personally would consider it to be safer to rely upon her testimony on oath given in Court although it relates to an opinion of the witness on the question of handwriting. 16. In addition to this evidence we have the statement on oath of the petitioner Mr. Barker that Ex. P/11 is a letter in the handwriting of his wife. This letter is dated 5-11-1951, i.e., about four months subsequent to the material period. The learned Court below dismisses this evidence by saying that Williamson the co-respondent had no reason to send this letter to the petitioner particularly when he was out to express repentance instead of supplying him with evidence of his wife's misconduct. But if he was out to repent he would certainly confess his guilt. He must also have known, as it appears from his letter Ex. P/10 that the petitioner was injured by his wife's conduct. Under these circumstances the sending of this letter with his own is not unnatural. As a husband, the petitioner will be assumed to have been acquainted with his wife's handwriting. He states that Ex. P/11 is in her hand. P/10 that the petitioner was injured by his wife's conduct. Under these circumstances the sending of this letter with his own is not unnatural. As a husband, the petitioner will be assumed to have been acquainted with his wife's handwriting. He states that Ex. P/11 is in her hand. There is no material on record to entitle us to disbelieve this part of his statement unless we go to the length of holding that the present proceedings are based on perjuries and forgeries. There are certainly some points in the conduct of the petitioner which call for an explanation which is not offered satisfactorily at the trial but they do not touch the materials discussed above. 17. It is not clear why the respondent should have left for an indefinite period for McCluskiegunj and why instead of returning to Mhow she should have continued to stay there without any attempt on the part of the petitioner to question her about this. There might have been correspondence between them during this period which would have thrown light on this aspect of the matter but for reasons best known to the petitioner this is not cleared. Then it is said that the petitioner although he was taking steps to get a divorce from his wife and had contacted lawyers yet in 1952 he wrote very cordial letters to her when he wanted to have a loan on his policy of insurance assigned to his wife. The learned counsel for the appellant questioned the propriety of referring to the copies of letters produced along with the written statement on this subject but even leaving aside the actual letters it is admitted by the petitioner that he had written polite letters and had secured her consent for taking loan on his policy but when he ultimately tried to get re-assignment she refused to comply. The conduct of the petitioner in this respect may not be straight and might have been prompted by an ulterior motive to deprive her of the benefit of the policy but this will not mean that till beginning of 1953, there was amity and confidence between them of every sort. The English copy of the plaint appears to have been signed in December, 1952 though the plaint in Hindi is filed in January, 1953. 18. The English copy of the plaint appears to have been signed in December, 1952 though the plaint in Hindi is filed in January, 1953. 18. The learned Judge below also criticised the petitioner's conduct in continuing to pay her allowance till the month of February, 1953. According to the learned Judge, he would have stopped this payment in February, 1951 when he first learnt of her misconduct. In the first place, the explanation given by the petitioner is that he received legal advice that as long as she is the lawful wife of the petitioner he is bound to supply her maintenance and if he did not do so she may write to his higher officials and this would be followed by inquiry and a scandal which might affect his future career. The explanation is not altogether unsubstantial. It may be that he was pondering before taking the final step of breaking away from her. Whatever may be the reason, this cannot be sufficient basis for rejecting his version or his petition. 19. As regards the view of the lower Court that the petitioner under the circumstances as they developed ought to have examined the correspondent as his witness, this is hardly a justifiable view. As is urged by the learned counsel, Ss.51 and 52, Indian Divorce Act, barring the exception contained in S.52, where under the circumstances mentioned in that Section husband or wife is competent and compellable witness against the other, in no other cases parties to these proceedings whether they be the petitioner, the respondent or co-respondent, are compellable witnesses. Williamson did not choose to come and offer himself as a witness. He could not be compelled through process of the Court to give evidence of his own adultery, vide - 4 All 49 (C)' The learned Judge also thought it to be strange on the part of Mrs. Manual to continue to be on visiting terms with the mother of the co-respondent after she learnt of respondent's misconduct with the co-respondent and had to turn her out of her house. It is difficult to attach much significance to this circumstance as there is no material on record with regard to habits and feelings of the people of the community to which they belong in such matters. 20. Non-examination of Aziz Eisa too is not fatal to the petition as the document Exs. It is difficult to attach much significance to this circumstance as there is no material on record with regard to habits and feelings of the people of the community to which they belong in such matters. 20. Non-examination of Aziz Eisa too is not fatal to the petition as the document Exs. P/4 and P/7 are otherwise proved. It is no doubt true that had Eisa been examined he would have explained how he came by Exs. P/4, P/6 and P/7. 21. On the whole I come to the conclusion that the decision of the Court below deserves to be set aside and decree nisi for dissolution of appellant's marriage with the respondent Patricia May Barker should be passed. I order accordingly. 22. It is further ordered that the petitioner will have the custody of their daughter Yvonne Anne Barker. The petitioner will arrange to permit the respondent to see their daughter occasionally. 23. Under the circumstances of the case I make no order as to costs. 24. SHINDE, C. J.: I agree. DIXIT, J.:- 25. I am also for allowing the appeal and granting to the husband the remedy for which he petitions. The decision of the learned District Judge is altogether vitiated by his mistaken approach to the question of the nature of evidence required to prove adultery and to the weight to be attached to the evidence on record in this case. There can be no direct evidence regarding such an act as adultery. I should have thought it obvious. But the learned District Judge unreasonably expected direct evidence to prove adultery. In divorce cases circumstantial evidence is all that can be normally got regarding adultery and what the learned District Judge had to see was whether the circumstantial evidence produced in the case was such as to leave no reasonable doubt regarding the fact of commission of adultery by the wife. On the evidence of the appellant Major Barker and his aunt Mrs. Manual and the letters Exs. P/4, P/7, P/10 and P/11, I am satisfied that the respondent wife committed adultery with the co-respondent Williamson at the material time. I think this is a proper case in which a decree nisi for the dissolution of the marriage should be pronounced. 26. Manual and the letters Exs. P/4, P/7, P/10 and P/11, I am satisfied that the respondent wife committed adultery with the co-respondent Williamson at the material time. I think this is a proper case in which a decree nisi for the dissolution of the marriage should be pronounced. 26. As regards the custody of the daughter born of the marriage, I think having regard to the conduct of the wife as disclosed by the evidence on record as also to the fact that she is not in a financial position to support the daughter and educate her, it would be in the interest of the young daughter to allow the appellant to have her custody. The daughter is now of about fourteen years of age, and is, as the appellant says, at present at a Boarding school in Banglore. She is being supported and educated entirely out of the allowance which the appellant has been paying to his wife. In these circumstances, there can be no injustice to the wife in not allowing her to retain the custody of the child. Appeal allowed.