1. This is an appeal under Section 47 of the Parsi Marriage and Divorce Act, 1936, against the decision of Mr. Justice N.J. Wadia declaring that the marriage between the plaintiff and the defendant is dissolved and granting a divorce to the plaintiff under Section 35 of the Act.
2. The plaintiff was married to the defendant in November 1922 and they lived together as husband and wife in various places till December 24, 1936. On that day they quarrelled and the defendant left the house with his kit, evidently with no intention of returning to her. On January 1, 1937, the plaintiff had to leave the flat which had been hired by her husband and she went to live in another place rented by her brother. The defendant evidently felt the inconvenience of getting his meals and so he went to the plaintiff's residence in June 1937 to find out whether she was prepared to give him food for payment. The plaintiff, after consulting her brother, agreed to the proposal, hoping that it would bring about a reconciliation between them. But the defendant stayed with her only for his meals and tea and paid her Rs. 15 a month. He never stayed there to spend his nights and was in fact treating his wife's place of residence as a hotel where he could get his food for a monthly payment of Rs. 15. This arrangement continued till November 26, 1937, when the defendant stopped going to her house. He was subsequently convicted of defamation and sentenced to simple imprisonment for three months in December 1937. He was released from jail in March 1938, but did not go back to his wife. On July 16, 1940, he was declared a lunatic and was confined in the Mental Hospital at Yeravda. He was released in April 1942, and this suit was filed by the plaintiff on June 16, 1942. On these facts the learned! Judge and the delegates held that desertion for more than three years was proved and the marriage was dissolved. Under Section 32, Clause (g), of the Parsi Marriage and Divorce Act, desertion of the wife by the husband for at least three years is a sufficient ground for granting divorce. The period during which the defendant was confined in the Lunatic Asylum has not to be taken into consideration in computing the period of three years. It is contended on behalf of the appellant that he may be deemed to have deserted the plaintiff on November 26, 1937, when he finally left her, and in that case, after deducting the period of his confinement in the Mental Hospital, three years had not elapsed when this suit was filed. On the other hand, if it be deemed that the plaintiff was deserted by him on December 24, 1936, when he quarrelled with her and went away with all his kit, then three years were completed at the date of the institution of the suit.
3. Thus the real question is whether the desertion which commenced on December 24, 1936, should be deemed to have come to an end in June 1987 when the defendant entered into an arrangement with the plaintiff to take his meals and tea in her house on payment of Rs. 15 a month. This is really a question of fact and has to be decided by the Matrimonial Court. Section 47 allows an appeal against the decision of that Court only on the ground that it is contrary to some law or usage having the force of law, or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground. It is, however, urged that the question whether the facts proved amount to desertion or not is a question of law and, therefore, a wrong finding on that question can be interfered with in appeal. Desertion is defined in Section 2(3) to mean desertion of one party to a marriage by the other without reasonable cause and without the consent, or against the will, of such party. To desert is to forsake or abandon, but it is difficult to define precisely what degree or extent of withdrawal from the wife's society constitutes forsaking or abandonment of her.
4. In Williams v. Williams (1864) 164 E.R. 1388 it was held that so long as the husband treated his wife as a wife, by maintaining such degree and manner of intercourse as might naturally be expected from a husband of his calling and means, he should not be said to have deserted her. If that test is applied to the facts of this case, it is obvious that the defendant treated his wife merely as a hotel-keeper and the relations of husband and wife were not revived by the mere arrangement under which the defendant began to visit his wife in June 1937. As observed in Pulford v. Pulford  P.18 (p. 21):
It has been almost a commonplace in this Court to hold that in order to ascertain whether there has been desertion, you must look at the conduct of the parties. There may be no matrimonial home, and yet no forfeiture of the rights of the spouses. Desertion is not the withdrawal from a place, but from a state of things. The husband may live in a place, and make it impossible for his wife to live there, though it is she and not he that actually withdraws; and that state of things may be desertion of the wife. The law does not deal with the mere matter of place. What it seeks to enforce is the recognition and discharge of the common obligations of the married state. If one party does not acknowledge them, the party who has so offended cannot be heard to say that he or she is not guilty of desertion on the ground that there has been no desertion by departure from a! place.
5. It is, therefore, clear that the mere fact that the defendant used to visit his wife's place for a specific purpose, not as her husband but merely as a boarder, does not indicate that he had revived the matrimonial relations and that the desertion, which had commenced in December 1936, had come to an end. This must be the view taken by the learned Judge and the delegates when they came to a finding that the plaintiff had been deserted by the defendant for more than three years before the suit was filed, and we see no reason to interfere with the finding.
6. The appeal is dismissed with costs. The appellant shall pay the coats of such Court-fees as he would have had to pay had he not been allowed to appeal as a pauper.