Jagannatha Shetty, J.
1. A decree nisi for dissolution of marriage obtained by the petitioner--wife--under Section 10 of the Indian Divorce Act, comes up before us for confirmation under Section 17 of the said Act.
2. The matter arises in this way: The petitioner was married to respondent on 23-6-1961. Their married life did not turn out to be happy. It looked as though, they married only to quarrel. Not a day passed without abuse from the respondent. The petitioner, however, thought that that would be a passing phase and the birth of a child may bring happiness to the family. She gave birth to a child on 10-6-1962. It was in her parents house. But unfortunately, the respondent did not even once turn up to look at the face of his child. In spite or this indifference, the petitioner along with the child came back and joined her husband somewhere in the beginning of 1963. This time also she did not receive any better treatment. After a couple of months, shewas driven away with the child only to find solace with her parents.
3. The petitioner was anxious to find out the reason for the hostile attitude of her husband. She succeeded In her mission on 18-7-1967 on which day, she found her husband in the company of one Kanthamani in the latter's residence. On the same day, there was a panchayat in which Shanmugam P. W. 2 and Shivalingam P. W. 4 were present. The Panchas discussed about the behaviour of the respondent and came to the conclusion that the respondent has committed adultery with the said Kanthamani. But they could not take any action either to mend his hostile attitude towards the petitioner or to end his illegitimate connection with Kanthamani.
4. Evidently, the respondent was not content with his concubine. He filed Misc. Case No. 126 of 1966 against the petitioner, in the Court of the District Judge, Bangalore, praying for a decree for restitution of conjugal rights. Therein, he complained that the petitioner without reasonable excuse has deserted him. The petitioner resisted the said action, in which two specific questions came up for consideration: (1) Whether the respondent treated the petitioner with cruelty; and (2) whether he had committed adultery with the said Kanthamani. Both these questions were answered in favour of the petitioner and accordingly the learned District Judge passed an order dated 10-11-1970 dismissing the application of the respondent. The said order became final since it was not challenged in any appeal.
5. Then it was the wife's turn to present a petition for dissolution of her marriage, out of which the present proceedings have arisen. In her petition dated 28-10-1971 she prayed for a decree on the ground that her husband has committed adultery and also treated her with cruelty. In support of her case, the order in M. C. No. 126 of 1966 was produced along with copies of the proceedings of the panchayat. She has examined herself along with four other witnesses. From the side of respondent, there is no other witness except that of himself. The learned Judge, on considering the evidence, made a decree nisi for dissolution of the marriage, and it is now before us for confirmation.
8. On the question of adultery committed by the respondent with Kanthamani, there is enough evidence. The respondent's illegitimate intimacy with Kanthamani on 18-7-1967 was spoken to by P. W. 2 Shanmugam, P. W. 3 Velayudhan and P. W. 4 Shivalingam. Their evidence is corroborated by the testimony of the petitioner. We have also, before us, the findings recorded in M. C. No. 126 of 1966 stating that the respondent has committed adultery with Kanthamani and treated the petitioner with cruelty. These findings are relevant, thoughthey do not operate as res judicata. This evidence is sufficient to hold that the respondent has committed adultery with Kanthamani and also treated the petitioner with such cruelty, as without adultery would have entitled her to a divorce a mensa et thoro,--an expression used to describe the position of husband or wife whereunder it would become impossible or improper for them to meet at table or at bed.
Besides, there is enough proof of desertion without reasonable excuse for two years or upwards on the part of the petitioner. Ever since the child was born in 1962, the respondent was not looking after the petitioner or the child. The petitioner is still residing in her parents house. She filed the petition for dissolution of her marriage in 1971. The cruelty coupled with that desertion also entitles her to seek a decree.
7. On the facts and circumstances of the case, we are also satisfied that there was no collusion between the parties in filing the petition for dissolution of their marriage.
8. The learned District Judge has also made an order directing the respondent to pay to the petitioner a sum of Rs. 150/-per month by way of permanent alimony. While making that order, he appears to have ignored the provisions of Section 37 ot the Act which provides that 'the District Judge may, on the confirmation of any decree of his declaring a marriage to be dissolved, or a decree of judicial separation obtained by the wife, order the husband to secure to the wife such annual sum ot money having regard to her fortune and to the ability of the husband.' In that view, the direction regarding the alimony to the petitioner, made by the District Judge must be held to be premature. That was also the view taken by the Calcutta High Court in Klein v. Kathleen Klein, : AIR1954Cal406 .
9. For the reasons stated above, we accept the reference and confirm the decree for dissolution of marriage between the petitioner and the respondent, without making any order as to costs.
10. Reference accepted and decree for dissolution confirmed.