1. The decree nisi passed by the Judge, District Council Court, Khasi Hills, Shillong in Divorce Suit No. 43 of 1981 dissolving the marriage of the petitioner with the respondent has come up before this Court for confirmation under Section 17, Divorce Act, 1869, for short, 'the Act'.
2. The petition for divorce was filed by the petitioner Ka Ersilian Lyngdoh for dissolution of her marriage with the respondent on the ground of adultery coupled with desertion for a period of two years or upwards. The petitioner examined herself as P. W. 1 and one more witness. She deposed that respondent 1, U. Kording Roy Sad was her husband. Their marriage was solemnised under the Christian Marriage Act at Laitongri village by Rev. F. Lyngdoh on 5th June, 1976 who gave them the marriage certificate, (Ext. 1). After the marriage the parties lived and cohabited together at Laitnongrim village and there were two issues out of the wedlock. In the month of April, 1979 the respondent committed adultery with the co-respondent Ka Aitimeris Diengdoh at Kynshi village and since then he has been living with the correspondent as husband and wife; and they have one child out of this adulterous union. After committing adultery the respondent never returned to the petitioner and hence she did not want to take him back as her husband as he committed adultery. As a result of the adultery the respondent had also been excommunicated from the Church by the Church elders. She categorically stated that
there was no collusion or connivance between the petitioner and herself in filing the petition for divorce. Hence she prayed that her marriage be dissolved.
3. P. W. 2 U. Eslander Marwein, a cultivator of Laitnongrim village, corroborates the petitioner about the marriage with the respondent, their living as husband and wife, that the respondent has been ex-communicated by the Church elders from the Church because of the adultery; and also that the respondent and the co-respondent have one child out of the adulterous union.
4. The learned Judge, District Council Court, on consideration of the evidence and materials produced before him, was satisfied that the petitioner's marriage with respondent 1 should be dissolved and accordingly he has granted the decree nisi which has come up for confirmation before this Court.
5. We have carefully considered the evidence on record. As regards the allegation of adultery, we have considered the evidence in light of the guidelines given by this Court in Ka Dymmiew Silty Giri v. U. Moonly Passah, AIR 1982 Gauh 74 (SB) where it has been observed that where the Judge was satisfied on perusal of the evidence that the parties were Christians and they were married under the Christian Marriage Act and the said marriage was duly solemnised and also the parties lived and cohabited together for some time, but subsequently the respondent without any valid cause deserted the petitioner and committed adultery and continued to commit the same openly and lived as husband and wife with the co-respondent and the Judge was also satisfied that the Church had excommunicated the respondent for adultery and there was no collusion or connivance between the parties, the Judge would be justified in passing decree of dissolution. The same guidelines were also followed in U Poland Star Basaiawmoit v. Ka Embhah Violet Challam, (1984) 1 Gauh LR (NOC) 16 (SB). On scrutiny of the evidence on record we find that the adultery has been proved. Adultery is voluntary sexual intercourse after the solemnisation of the marriage, with any person other than the spouse while the marriage subsists. It means consensual sexual intercourse with one of the opposite sex, while the marriage
subsists. In Orford v. Orford, (1921) 49 OLR 15 (Canada) it has been observed :
'The essence of adultery consists in the voluntary surrender to another person of the reproductive power or faculties of the guilty person and any submission of these powers to the service or enjoyment of any person than husband or the wife comes within the definition of 'adultery' '.
6. In the instant case we find that the respondent during the subsistence of the marriage with the petitioner has committed adultery with the co-respondent which has been proved beyond doubt by the birth of the child out of the adulterous union. There is, therefore, sufficient evidence of respondent 1 having committed adultery. The respondent has deserted the petitioner since April 1979 and the petition for divorce was filed after two years in September, 1981. As defined in Section 3(9) of the Act, desertion implies an abandonment against the wish of the person charging it. Desertion is voluntary abandonment by the husband of society of his wife against her will (Townsend v. Townsend (1873) 42 L. J. P. & H 71). It means 'wilful absenting of the husband from the society of his wife in spite of her wishes' Reg. v. Leresche (1891) 2 QB 418. The essential ingredients of desertion are: (i) the separation of one spouse from the other: (ii) intention on the part of the deserting spouse to put an end to cohabitation by virtue of marriage; and (iii) without reasonable excuse. There must be (a) the factum of desertion --physical separation; and (b) animus of desertion -- Intention to bring cohabitation permanently to an end. On the part of the deserted spouse, there must be (a) absence of consent: and (b) 'absence of conduct reasonably causing the deserting spouse to form his intention of bringing the cohabitation to an end'. In the instant case we find all the ingredients of desertion and bringing cohabitation by virtue of the marriage permanently to an end present.
7. The respondent and the co-respondent did not appear to contest the suit although they received notices of the petition and the suit had to proceed ex parte against them. They have not appeared before this court as well. There is no question of lack of jurisdiction as the parties fast cohabited within the
jurisdiction of the District Council Court. There is also no allegation of any collusion or connivance between the parties as the petitioner had categorically stated that there was no collusion or connivance between them.
8. Under the above circumstances, we are satisfied that the Judge, District Council Court, was justified in granting the decree nisi which we hereby confirm. There will be no order as to costs.