R.N. Misra, J.
1. This is a reference made under Section 17 of the Indian Divorce Act, 4 of 1869 (hereinafter referred to as the 'Act') by the learned District Judge of Cuttack for confirmation of the decree for dissolution of marriage between the petitioner and respondent No. 1. Their marriage took place on 21-3-1969. It was alleged that the spouses lived together for about three months and the wife was taken by her father on the plea that wife's mother was seriously ill. Several attempts of the petitioner to bring back his wife failed. Intervention of well-wishers also did not prove effective. Petitioner applied under Section 100 of the Code of Criminal Procedure and the wife was produced in court. She made a statement that she did not like to reside with the husband. He thereupon applied for judicial separation and obtained a decree on 23-9-1971 (Ext. 2). The spouses never lived together thereafter. It was further alleged that the wife (respondent No. 1) had adulterous relationship with her own uncle (respondent No. 2).
2. The wife (respondent No. 1) did not enter contest. Respondent No. 2 alone entered contest and denied the allegation of adultery. Three witnesses were examined in support of the application and respondent No. 2 examined himself in support of his defence. The learned District Judge came to hold that the allegation of adultery had been proved and passed a decree for divorce subject to confirmation of this Court as required by law.
3. The decree for judicial separation under Ext. 2 had been passed upon acceptance of the plea of desertion without reasonable excuse for more than two years prior to the application. Section 22 of the Act provides :--
'No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro, under the existing law, and such other legal effect as hereinafter mentioned.'
The Latin term 'a mensa et toro' would mean 'From bed and board'. As pointed out by a Special Bench of the Madras High Court in the case of T.M. Bashiam v. M. Victor, AIR 1970 Mad 12 (SB).
'It is admitted that in certain earlier proceedings between the parties, which are among the typed papers as O. P. No. 240 of 1962, a decree was granted in favour of the petitioner (the wife) for judicial separation from the respondent (the husband) under Section 22 of the Indian Divorce Act. The petitioner alleges that though four years have passed since that decree, there has been no resumption of matrimonial living between the parties. In brief she now desires that she should be granted a decree nisi for dissolution of the marriage, merely because of the lapse of an interval of four years after the decree for judicial separation under Section 22.
It is sufficient to point out that this is plainly opposed to the scheme and the provisions of the Indian Divorce Act (4 of 1869). Though one may doubt the wisdom of the legislative provisions of this Act, in the light of more progressive marriage laws that have since been enacted with regard to other communities, as far as the parties governed by this Act are concerned the decree for judicial separation does not ripen into a decree for dissolution of the marriage, because of the lapse of any interval or time.
We are inclined to agree with the view of the Madras High Court and the plea taken by the husband that in view of the earlier decree under Ext. 2 he would now be entitled to a decree for divorce is not correct.
4. Section 10 of the Act authorises the husband to petition for dissolution of marriage on the ground that his wife since the solemnization of marriage has been guilty of adultery. Three witnesses including the husband have been examined in this case to prove the allegation that the wife is living in adultery with respondent No. 2 after the solemnization of the marriage. The learned District Judge has relied on the evidence of P. W. 2 who went to Bhadrak and stayed in the house of respondent No. 1's rather for three days. He has spoken about the manner in which the respondents 1 and 2 were living. P. W. 3 has also spoken that respondents 1 and 2 were freely moving together and were going to witness exhibition of films. Respondent No. 2 had refused to part with respondent No, 1 when the husbands alone with others had gone to demand return of the wife. Respondent No. 2 has admitted that he was present at Bhadrak when the panchayati took place. Respondent No. 2 has also applied for divorce, as admitted by him, from his wife. The fact that soon after the marriage respondent No. 1 went away to her father's house and in spite of repeated demands has withdrawn herself from the company of her husband, she chose to remain ex parte when the earlier proceeding was taken and did not care to enter contest in the present proceeding and did not indicate any justifiable ground as to why she had withdrawn from her husband's company -- are relevant features for consideration in the case. These facts taken together, in our opinion, rightly led the learned District Judge to come to the conclusion that the plea of respondent No. 1 living in adultery with respondent No. 2 had been established. The conduct of respondent No. 1 in remaining ex parte is also relevant feature to be taken into account. We do not think, a different view should be taken by us.
5. Adulterous conduct having been established, the condition indicated under Section 10 of the Act has been satisfied. In this view of the matter, we confirm the decree-nisi of the learned District Judge and the marriage solemnized between the spouses on 21-8-1969 stands dissolved by the present decree. Parties are directed to bear their own costs of this proceeding.
P.K. Mohanti, J.