M. Anantanarayanan, Offg. Chief Justice
(1) This is a case referred for our confirmation of the decree nisi under S. 17 of Act IV of 1869, by the learned District Judge of West Tanjore. The essential facts are as follows.
(2) The petitioner in the reference married the first respondent on 12-6-1946, under Christian rites of marriage. The petitioner was employed in the Railway, and in 1954, he was a Station Master at Narasingampettai. It appears to be indisputable that the first respondent was involved in a case of murder as an accused, and that these proceedings took some time. According to the petitioner, the second respondent, the cousin of the first respondent, was assisting her with regard to the conduct of her defence, with the consequence that an illicit intimacy sprang up between them. There was a number of subsequent events set forth in the petition, which do not now directly concern us. But, to put it briefly, the case of the petitioner was that the first respondent was unfaithful to him, and that she has been committing acts of adultery with the second respondent even in 1954, and later in 1961. As the aspect of a possible condonation of a matrimonial offence, in this case, adultery, by the husband, might be of some relevance, in the present context, we set forth the following passage verbatim from the evidence of the petitioner (P.W. 1):
'In 1961 I went to Bombay and stayed for 15 days. Respondent 2 was visiting respondent 1 then. My pointsman Dandapani, (P.W. 3) saw respondent 1 and respondent 2 in a compromising stage. So I filed this petition...... Respondent 1 left my house about two and a half months ago and is now living with respondent 2. From 1954, till the date respondent 1 left my house, there has been no cohabitation between me and respondent 1.'
(3) It is a fact that neither the wife nor the co-respondent (second respondent) contested these proceedings, at any stage. It is also established that the wife was personally served with notice, and she did not come forward either to deny the alleged matrimonial offence of adultery, or to plead that subsequent thereto she had resumed matrimonial living with her husband (petitioner), and that there has been any condonation of her conduct by her husband. P.W. 1 is corroborated by a relative (P.W. 2) and by one Dhandapani (P.W. 3) employed as a pointsman in Alakkudi railway station. P.W. 3 gives specific evidence that, while the petitioner was away at Bombay in 1961, respondent 2 visited the house of respondent 1, and that P.W. 3 actually saw the two together in a compromising situation.
(4) Under these circumstances, it would appear to be clear that the matrimonial offence of adultery was established by clear and cogent evidence, in the case. Nor has the wife come forward to deny the alleged offence. That would ordinarily entitle the husband to a decree in terms of S. 10, unless this court has reason to suspect that there might have been collusion between the parties, or any undue delay in presenting the petition, or any condonation of the offence of adultery, by the husband.
(5) On the aspect of condonation, we were somewhat concerned to scrutinise the available authorities, in view of the very vague and imperfect evidence given by P.W. 1. Though P.W. 1 alleges an act of adultery as early as 1954, which is further proved by Amal Raj (P.W.2), he seems to admit that subsequently the wife (first respondent) stayed with him, and that the two were together under the same roof for a considerable period thereafter. 'Cohabitation' signifies the commencement or resumption of matrimonial living in all essential aspects, as between the spouses, which will, of course, include sexual union. The problem in the case is whether, on the evidence that till respondent 1 left the house of P.W. 1 about two and a half months prior to the date of his evidence (16-1-1963) she was living with him, condonation ought not to be inferred, or at least suspected. Learned counsel for the husband (petitioner) strenuously contended that condonation need not be inferred, that his client denied condonation and denied resumption of cohabitation, and that thereby the burden shifted to the opposite party (wife) to come to court and plead condonation, or to plead subsequent cohabitation as evidence of condonation. In one authority to which our attention has been drawn, viz., Burch v. Burch, 1958 1 WLR 480 , this aspect has been briefly dealt with. The problem presented by it has been realised, and is expressed in the form that it is a question of fact whether condonation 'is to be inferred from continuance under the same roof'. Again, Sachs J. Commented:
'Cases were cited which fell on either side of the line, on their particular circumstances.'
(6) In the present case, it is true that the wife has not come forward to allege resumption of cohabitation after the matrimonial offence was discovered by the husband (P.W. 1). Furthermore, the husband swore that the wife left him two and a half months or so before the date of his deposition, and was subsequently living with respondent 2. In this situation of fact, we think that we could reasonably infer that there has been no condonation of the matrimonial offence by the husband (P.W. 1), and further that there has been no collusion between the parties.
(7) As regards the delay, it is true that there is a delay of about eight months, but, we do not think that this is excessive or unreasonable. The petitioner has four children, and he might have well hesitated for sometime before taking the extreme step of attempting to get the marriage dissolved.
(8) Consequently, we direct that the decree nisi for divorce be now made absolute.
(9) There will be no order as to costs.
(9) Decree made absolute.