M. Anantanarayanan, C.J.
1. This is a reference under Sections 10 and 17 of the Indian Divorce Act (IV of 1869) made by the learned District Judge, Tiruchirapalli, for confirmation of the decree nisi granted by him dissolving the marriage between Doris Padmavathy (petitioner) and her husband V. Christodass (respondent),, We may state, at the outset, that the respondent has remained ex parte throughout, and that the petitioner seeks divorce on the ground specified in a clause of Section 10 of the Act, namely, ' adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toro '.
2. The facts are quite simple. In her petition, the petitioner states that she married the respondent on 15th September, 1958 according to the rights of the Christian religion. Immediately after the marriage, the husband and wife lived together at Bhilai and later at Tiruchirapalli. The respondent was then transferred in 1961 to the Thermal Station at the Neyveli Lignite Corporation. The respondent was in poor health and began to act in a cruel manner towards the petitioner, sometimes even using physical violence. She tolerated this, hoping that his conduct would improve, as also, his health. On 17th September, 1966, the respondent was enraged at the refusal of the petitioner to give finance for a foreign trip, and he beat her and actually attempted to throttle her. On hearing her cries, her mother who was in the next room, had to intervene and save her. The petitioner apprehended actual danger to her life, and left the house of the respondent with her mother. On 19th November, 1966, there was another assault by the respondent against the petitioner and the respondent even made an attempt to drag her to the street and to use physical violance.
3. In addition to these averments of grave cruelty, the petitioner alleges that the respondent was leading an immoral life, that he deserted the petitioner that he was suffering from venereal disease and that, after leaving her, the respondent has been living in adultery with one Elizabeth, daughter of Doraiappan, without lawful marriage.
4. The petitioner has examined herself, and she has given evidence in some detail about the cruelty by the respondent towards her. She then adds that the respondent was later living an immoral life and that ' he is living in adultery with one Elizabeth, daughter of one Doraikannu, who is distantly related to me '.
5. The petitioner is corroborated by P.W. 2, who speaks to the incident on the 19th November, when the respondent beat the petitioner and snatched away her tali. Another witness is P.W. 3 who deposes to the same incident of the assault by the respondent, and the removal of the tali of the petitioner. P.W. 3 says 'the husband beat, kicked and mercilessly assaulted P.W. 1'. On this evidence, the learned Judge has granted the decree nisi, that we have earlier referred to.
6. We have carefully scrutinised the evidence and we are satisfied that there is sufficient evidence, both of the petitioner and the witnesses who corroborate her, concerning the grave cruelty of the respondent towards the petitioner. But, unfortunately for the petitioner, such cruelty per se is not a ground for dissolution of the marriage under Section 10, though it is a ground in itself for the grant of a decree for judicial separation between the parties. It is conceded by the learned Counsel for the petitioner that mere cruelty is not enough and that adultery. coupled with cruelty, or adultery coupled with desertion for two years or more, must be established before the relief of divorce can be claimed.
7. We are quite unable to accept that there is any evidence in this case, with regard to the alleged adultery, upon which we could arrive at a reasonable inference against the husband. As precedents have repeatedly laid it down, adultery is the matrimonial offence of sexual intercourse with another, by one of the spouses, during the subsistence of the marriage, as a consensual act or relationship. The petitioner no doubt, alleges, that there was such adulterous relationship between the respondent and a certain Elizabeth, named in the petition. But, except for the bare averment, the evidence on this aspect is totally-.unsatisfactory. Even the name of the father of this Elizabeth is given out as Doraiappan in the petition, and as Doraikannu in the testimony of P.W. 1. The statement ' He is living in adultery with one Elizabeth is bare, and without amplification. We are not certain whether this is based on personal knowledge and conceivably, it may be pure hearsay. The fact that the respondent did not appear to contest the proceeding can never be regarded as any safe basis or ground for acceptance of such vague and indefinite testimony, for the compelling reason that this Court in such matters, dots not merely act as a Tribunal of adjudication between the rights of private parties; the status of matrimony is involved, as well as the interests of society, and the Court has the right and duty to see that the matrimonial offence of adultery, if alleged by either spouse, is properly established by evidence that a Court can accept. Collusion is one of the matters that will have to be wholly excluded, before any relief can be granted, and for this reason also, the Court must not be satisfied with the mere assertion of a party, where the source of knowledge is not revealed and the party does not even purport to give evidence from personal knowledge as distinguished from hearsay. Learned Counsel for the petitioner has drawn our attention to certain observations of Mukherjee, J., in Adelaide v. William : AIR1968Cal133 , But we find, on a careful perusal of that decision, that the facts of that case were very different, involving other evidence including employment of a private detective, and that the learned. Judge incidentally made an observation, in accepting and acting on the evidence for adultery, that he also took into consideration the fact that the husband had not chosen to appear in Court and defend himself against the charge. We do not understand this decision as laying down any different principle, from the broad principle which has been reiterated in such cases, that the mere fact that the other party to the proceeding is ex parte, does not exonerate the Tribunal from the duty to see that the evidence is adequate to afford the basis for the conclusion that, in the particular case, the marriage has to be dissolved and matrimonial status disrupted.
8. As has been the course taken by us in similar cases where cruelty alone is a proved, and not adultery, we are competent to grant a decree for judicial separation under Section 22 of the Act, on the ground of the established grave cruelty. In the present case also, we accept the reference to this extent, and grant a decree for judicial separation between the parties. The learned Counsel for the petitioner submits that, if the alleged adulterous relationship between the respondent and a third party is even now continuing, it may be open to the petitioner to take out fresh proceedings for divorce upon that fresh and future cause of action. We do not desire to make any observations in anticipation on such a matter: but if the necessary facts exist, the petitioner may certainly proceed to such remedies at law as the petitioner may be advised to take. No order as to costs throughout.