1. This is an appeal against the judgment of Greaves, J., given on the 11th April 1916, by Beatrice Alice De Ste Croix, who was the respondent in divorce proceedings brought against her by her husband on the ground of her adultery with the co-respondent.
2. The learned Judge granted a decree nisi for the dissolution of the marriage. The adultery was admitted by the respondent, and the appeal was based on allegations:--- (1) that the petitioner had condoned the adultery complained of, (2) that the petition was presented or prosecuted in collusion with the respondent, (3) that the petitioner had been guilty of such wilful neglect or misconduct as bad conduced to the adultery and (4) that the petitioner had deserted the respondent without reasonable cause.
3. As regards the first point the learned Judge held that the petitioner had not condoned the offence.
4. Condonation is a conclusion of fact, not of law, and means the complete forgiveness and blotting out of a conjugal offence followed by cohabitation, the whole being done with full knowledge of all the circumstances of the particular offence forgiven; see Bernstein v. Bernstein (1893) P. 292 : 63 L. J. P. 3 : 6 R. 609 : 69 L. T. 513. per Lopes, L. J. at page 303 or as stated by the Judge ordinary in his direction to the Jury in Keats v. Keats (1859) 1 Sw. & Tr. 334 : 28 L. J. Mat. 57 : 5 Jur. (N. S.) 176 : 7 W. R. 377. condonation means a blotting out of the offence imputed so as to restore the offending party to the same position he or she occupied before the offence was committed. The forgiveness which is to take away the husband's right to a divorce must not fall short of reconciliation and this must be shown by a re-instatement of the wife in her former position, which renders proof of conjugal cohabitation or the restitution of conjugal rights necessary. Section 14 of the Indian Divorce Act, 1869, provides that no adultery shall be deemed to have been condoned within the meaning of the Act unless where conjugal cohabitation has been resumed or continued.
5. The facts relied upon in this case to show condonation are that when the confession of adultery was made on the night of Friday the 12th November 1915, the wife was allowed to occupy her bed (which was a separate bed) in the same room as her husband and to live in the house as usual until the 17th November (Wednesday.) That inasmuch as the husband and wife had not had any marital intercourse for 9 years previously, the husband, by allowing the wife to occupy the bedroom and to live in the house, had reinstated the wife in her former position and had completely forgiven her.
6. I do not think this is the right conclusion. The husband at once, as soon as he was informed of the adultery on the night of Friday, 12th November, asserted his intention to take proceedings to protect the interests of his children and himself. He had been told that his wife was going to have a child (she was in fact confined on the 23rd November), he was obviously very sorry for her, and he had his two girls living in the house.
7. This happened on Friday, Monday was a holiday on which Solicitors' offices were closed, he went to see his Solicitors on Tuesday, and in consequence of their advice he decided she must leave the house though he was anxious to give her shelter in some part of his house, and she consequently left his house on Wednesday, the 17th.
8. I see no reason for interfering with the learned Judge's finding of fact on this part of the case.
9. As to what happened afterwards, the facts relied upon by the learned Counsel for the appellant were that at the wife's request she was allowed to visit the husband at his house on his birthday, that she dined with him and th6 family on that day, and on Christmas day, that he kissed her, that on several occasions she breakfasted with him and had other meetings, and the letters which the respondent wrote to the petitioner are also relied on. In considering the events of this period it must be remembered that on 25th November 1911 the wife wrote, 'you say you have forgiven me and yet, Phil, you are taking the matter up,' evidently referring to the husband's determination to proceed for divorce: Proceedings were in fact begun on 16th December 1915 and the letters written by the respondent are full of appeals to the husband to discontinue the proceedings and take her back, and may be summarised in her own words used in evidence, 'he said he had forgiven me. I did not accept that because he was going on with the suit. What I wanted was, that he should forgive me and take me back. Although he had forgiven me to some extent, he had not forgiven me to the extent that he was willing to take me back.' I need not refer to the rest of the facts which are fully dealt with in the learned Judge's judgment: It is sufficient for me to say I see no reason for interfering with his decision of fact that the petitioner had not condoned the respondent's adultery.
10. As regards the second point, viz., collusion---it is based on two allegations:
11. First, that the petitioner had agreed that if the respondent would not defend the case, he would marry her again after the expiration of six months from the decree.
12. The learned Judge came to the conclusion that the respondent was labouring under a delusion in this matter, and found as a fact that there was no understanding or agreement that if the respondent did not defend the suit, the petitioner would remarry her.
13. The learned Judge has seen the witnesses and accepted the petitioner's evidence on this part of the case, and on the materials before the Court I am not prepared to interfere with his finding of fact.
14. Second, it was alleged that it was agreed between the parties that if the wife would not defend the suit, the husband would be a friend to her and would not allow her to be on the streets and would, if there was no condition against it, give her welcome in his house. This matter is not dealt with by the learned Judge, nor is it referred to in the pleadings and judging from the very careful manner in which he has dealt with the various points, I am constrained to think that much reliance, if any, was not placed on it at the trial. The husband denied that his promise to be a friend to her was conditional upon her not defending the case. I refer to the concluding sentences of the learned Judge's judgment, and I think it is clear that the petitioner was anxious that she should not defend the suit to avoid publicity and scandal, and at the same time intended to help as far as he could the woman who had been his wife for so many years.
15. The proceedings were in fact defended from the outset, and I find no sufficient ground for holding that the proceedings were either instituted or prosecuted in collusion.
16. As regards the third point, viz., wilful neglect or misconduct conducing to the adultery.
17. The allegations relating to this point were:
(1) that the petitioner had wilfully abstained from marital intercourse with the respondent for a period of about nine years, although there was no physical cause for this and he had no aversion to her,
(2) that he had gone his own way and the wife had done the same.
18. As regards the first allegation, the mere fact that the husband refrained from marital intercourse, in my judgment, cannot by itself be held to be such wilful neglect or misconduct as conduced to the adultery.
19. In Forster v. Forster (1790) 1 Hag. Con. 144 at p. 154 : 161 E. R. 504. Lord Stowell, speaking of a case in which a husband was alleged to have withdrawn himself from his wife's bed, said.
This species of malicious desertion is a ground of divorce in some countries---certainly not so here---and still less will it justify a wife, in a resort to unlawful pleasures that lawful ones are withdrawn. It is not, however, to be considered as a matter perfectly light in the behaviour of a complaining husband that he has withdrawn himself without cause and without consent from the discharge of duties that belong to the very institution of marriage, and, if he has done so, he ought to feel less surprise if consequences of human infirmity should ensue.
20. And in Synge v. Synge (1900) P. 180 at p. 207 : 69 L. J. P. 106 : 83 L. T. 224, 64 J. P. 454 : 16 T. L. R. 388 : and in Court of Appeal (901) P. 317 : 70 L. J. P. 97 : 85 L. T. 83 : 17 T. L. R. 718. the President of the Probate Division and Admiralty Division, in dealing with a case where the wife had refused marital intercourse to the husband, said: 'I do not say that the wife has been guilty of conduct conducing to his misconduct within the meaning of the 31st Section of the Act, because it appears to me that though no doubt a wife, who behaves as the petitioner in this case behaved, is to a certain extent, as Lord Stowell said in the case to which I have referred, morally responsible and cannot hold herself altogether free from responsibility---still I think it is a very long step---and one I cannot take to say that a wife who refuses matrimonial intercourse has conduced to the adultery of her husband: a husband has no right to commit adultery because she refuses him. I think that would be a low and mean view to take of it. She may perhaps be morally responsible but 1 do not say that she has been guilty of conduct conducing to his adultery.'
21. I adopt the principle of these decisions and hold that the mere fact that the husband refused marital intercourse to the wife by itself is not such wilful neglect or misconduct as conduced to the adultery.
22. But it is argued that in this case the refusal of marital intercourse did not stand by itself: for the petitioner had wilfully neglected his wife and allowed her to go her own way while he went his.
23. The evidence on this point is as follows:---The wife said she had reason to complain of her husband's friendliness for her sister and on one occasion followed him to her house, and after describing what she saw, viz., her husband holding her sister's hand, she said that the next day her husband said, 'I do not want you to follow me. You go your own way and I go mine.' This was five or six years before the proceedings for divorce.
24. The Judge's note of the petitioner's evidence is as follows:---'For six years prior to November 1915 I went my way and she went hers: you might say for twelve or fifteen years it has alway been so. We each did as we liked without consultation for twelve or fifteen years.' Thehusband's remark to which the wife speaks may have been in temporary anger at finding himself followed by his wife, but it remains to consider the state of affairs as described in the petitioner's evidence: The wife lived with her husband in the same house, slept in the same room, and was one of the family with her daughters, she had all the comforts of the home, and, under such circumstances, I agree with the learned Judge that the fact that the parties went their own way, in the sense that they had their own friends and interests, cannot be said to be conduct conducing to adultery, even when coupled with the abstinence by the husband from marital intercourse.
25. Lastly, as to the alleged desertion without reasonable cause: This was based on the same ground as the allegation of wilful neglect conducing to adultery, viz, the fact that the husband had abstained from marital intercourse and that he had allowed the wife to go her own way.
26. The inference which the learned Judge drew from the evidence was that both parties assented to that course, and, if that be a correct inference, it is an answer to the allegation of desertion.
27. The wife's evidence is as follows:
I had no marital intercourse with my husband eight or nine years. I resented this conduct, and he saw my manner towards him.
28. There is no suggestion that the wife ever asked that marital intercourse should be resumed and that he refused, and we are left in the dark as to what her manner was. I am inclined to think that if the wife had had any real resentment against her husband's abstention for all these years, she would have taken some step, more unequivocable than a mere manner, to let him know what her real feelings were, and I think the learned Judge was justified by the evidence in coming to the conclusion which is above mentioned. But whether this conclusion is correct or not, I do not think the facts in this case would justify a finding of desertion on the part of the petitioner.
29. In Synge v. Synge (4) the facts were that the husband and wife had been separated for some considerable time: the husband wished to live with his wife as her husband if marital rights were allowed to him: the wife was willing to live with him, but not as his wife, and only if such marital rights were not insisted on.
30. The learned President held on these facts that the husband did not desart his wife but rather that she deserted him: or, if he did desert her, he did so with reasonable excuse within the meaning of the Act. I gather the learned President came to the conclusion that the separation, which undoubtedly took place between the parties, was due to the wife's conduct, for which she had no reasonable excuse, and that, therefore, she was guilty of desertion. The facts in this case are materially different; the abstaining from marital rights by the husband did not result in the separation of the parties: on the contrary they continued to live together as before, they slept in the same room, though in separate beds, and there is no evidence that during all the nine years the wife ever requested the renewal of marital intercourse, or that the husband refused. The evidence amounts to nothing more than that the husband abstained from marital intercourse, and that, though living together, the parties went their own ways, and followed their own interests, and I am not prepared to hold that under such circumstances the petitioner was guilty of desertion without reasonable cause within the meaning of the Act.
31. For these reasons, in my judgment, the appeal should be dismissed. On a former implication made before the hearing of the appeal, this Court decided that it ought not, under the circumstances of this case, to make an order that the husband should make provision for the costs of the wife's appeal, and I see no reason for acceding to the application which has now been made on behalf of the appellant that the Court should order the respondent to pay her costs of the appeal.
32. The respondent's Counsel not asking for costs, the appeal is dismissed; no order as to costs.
33. This is an appeal by the wife against a decree nisi for dissolution of marriage, made on the petition of the husband on the allegation of adultery. The facts material for the determination of the questions in controversy are fairly clear on the evidence. The parties were married on the 8th May 1894 They have had three children, two of whom survive, the eldest born on the 16th July 1895 and the youngest born on the 27th October 1905. The parties have lived as husband and wife ever since their marriage, but there has been no marital intercourse during the last nine years; though they used to sleep in the same room, they had different beds. How this was brought about, cannot be determined with absolute certainty; the husband admits that it was due neither to physical causes nor to an aversion to her. An incident is, however, mentioned in the evidence, which may possibly furnish an explanation. The wife was jealous of the visits paid by her husband to her younger sister; on one occasion, she followed him, and when she entered her sister's house, found her husband sitting, alongside her sister holding her hand. The next day after this incident, the husband said to the wife, 'I don't want you to follow me, you go your own way and I go mine.' They continued, however, to live together. The husband was absent from home for a month from the 12th October to the 11th November 1915. The day after his return, which was a Friday, his mother in law informed him that his wife was about to be confined and gave the name of the co-respondent. On this discovery that his wife had committed adultery, he said that he would take proceedings to protect himself and his children. After return home of his wife the same evening, he obtained from her a written confession of her misconduct. She slept in the house that night and the four following nights, either in his bedroom or with her mother, but it is admitted that he had no intercourse with her. As Monday was a holiday, he consulted his Solicitors on Tuesday the 15th November; as the result of advice which he received from them, the wife was made to leave his house on the 17th November. She was confined six days later. On the 16th December he instituted the present proceedings against his wife and the co-respondent for dissolution of marriage, Mr. Justice Greaves has made a decree nisi, and the propriety of that decree is now called in question not on the ground that adultery has not been proved, but for four special reasons mentioned in Sections 12, 13 and 14 of the Indian Divorce Act, 1969.
34. Sections 12, 13 and 14 of the Indian-Divorce Act, when analysed, show that to an application for dissolution of marriage on the ground of adultery presented by a husband under Section 10, there are four absolute defences and five discretionary defences. The four absolute defences are (1) denial of facts alleged in the petition; (2) connivance; (3) condonation; (4)collusion. The five discretionary defences are (1) adultery of petitioner; (2) unreasonable delay in presenting or prosecuting the petition; (3) cruelty to the other party to the marriage; (4) desertion or wilful separation from the other party, before the alleged adultery, without excuse; (5) wilful neglect or misconduct, such as to have conduced to the adultery complained of. The appellant relies upon the third and fourth of the absolute defences and the fourth and fifth of the discretionary defences. It will be convenient to examine the validity of these objections in the order stated.
35. As regards condonation, reliance is placed upon the conduct of the husband both before and after the date on which the wife left the house. It has been argued that as the husband suffered his wife to remain in the house after he had been apprised of her misconduct, he must be deemed to have condoned the adultery. It has further been contended that as he is proved to have allowed his wife to return to the house on several days, to have breakfasted with her, to have dined with her on his birthday, on the Christmas day and on New Year's day, and also to have kissed her, the same inference is considerably strengthened. I am unable to give effect to this contention as well founded. As Sir C. Creswell explained in Peacock v. Peacock (1858) 1 Sw. & Tr. 183 : 27 L. J. Mat. 71) 6 W. R. 866. condonation is forgiveness of a conjugal offence with full knowledge of all the circumstances and is a question of fact, not of law. This was emphasised in Keats v. Keats (2) where Lord Chelmsford held that condonation is a blotting out of the offence imputed, so as to restore the offending party to the same position he or she occupied before the offence was committed; consequently, mere forgiveness is not condonation; to be condonation it must completely restore the offending party and must be followed by cohabitation. This view is reproduced in Section 14 of the Indian Divorce Act, which requires that no adultery shall be deemed to have been condoned unless where conjugal cohabitation has been resumed or continued. The expression 'conjugal cohabitation' need not be given a restricted meaning, for as Lord Chelmsford puts it in Keats v. Keats (2) to say that condonation requires conjugal cohabitation or connubial intercourse leaves the nature of the cohabitation or intercourse to be adapted to the varying conditions and circumstances of different parties Campbell v. Campbell Deane 285 at p. 288;. Anichini v. Anichini (1839) 2 Curt. 210;. Seller v. Seller (1800) 1 Sw. & Tr. 482 : 28 L. J. Mat. 99 : 5 Jur. 686 : 8W. R. 5; Bernstein v. Bernstein (1). Much stress has been laid on two decisions of the House of Lords, Lord Cloncurry's case (1811) Macqueen H. L. Prac. 606. and Miller's case (1821) Macqueen H. L. Prac. 627. The first of these cases shows that the fact that the husband allowed the wife to live in his house after discovery of her misconduct did not disentitle him to a decree for dissolution, when reasonable grounds were assigned for not turning her out immediately on discovery of her infidelity. The second case does not assist the contention of the appellant in any way because the proceedings were discontinued and the bill was abandoned: the facts proved were that the husband, though apprised of his wife's misconduct, nevertheless suffered her to remain in his house for three weeks thereafter, and they dined together for three days after the disclosure. No special circumstances were made out to explain this conduct on the part of the husband. On the other hand, the decision in Hall v. Hall (1891) 64. L. T. 837. shows that the husband need not be unnecessarily harsh' towards his wife on discovery of her infidelity to entitle him to escape the bar of condonation; this view was affirmed on appeal. Hall v. Hall (1891) p. 302 : 65 L. T. 206 : 60 L. J. P. 73. As Sir Francis Jeune observed in the case just mentioned, the true position is that if with full knowledge of his wife's misconduct, a man says, I wish to treat my wife just as if it had never happened, he cannot afterwards sue for relief on the ground of the adultery which he has condoned; he cannot blow hot and cold. Now, can it be really suggested that the husband has done so in this case? The answer must obviously be in the negative. From the very moment of the discovery of the misconduct, the husband announced his intention to have recourse to legal proceedings, and he has throughout persisted in that determination He may have treated her kindly and considerately, but he certainly did not intend to restore her to her marital rights. The argument of the appellant ignores the distinction between condonation and forgiveness. Condonation imports forgiveness, but the reverse is not necessarily true; forgiveness is not sufficient, for the reason that the injured party may conclude to forgive the offender and at the same time withhold a complete reconciliation in the sense of reinstating the offender to conjugal cohabitation or intercourse. In my opinion, the defence of condonation cannot be sustained.
36. As regards collusion, the argument is based on two allegations, first, that the husband had promised to re-marry the appellant after the expiry of the statutory period of six months (Section 57), if she did not defend the case; secondly, that the husband agreed, if she did not oppose the application, to be friendly to her and to provide for her in his house if there was no legal bar. As regards the first allegation, Mr. Justice Greaves has not accepted the testimony of the appellant and I see no reason to doubt the correctness of his conclusion. As regards the second allegation, it is substantially borne out by the evidence. It is thus necessary to consider whether the petition has been presented or prosecuted in collusion within the meaning of Section 13 of the Indian Divorce Act. As observed in Gethin v. Gethin (1861) 31 L. J. Mat. 43. collusion implies an agreement or understanding between the parties; in other words, collusion is held to exist where the initiation of the proceeding for dissolution of marriage is procured or its conduct provided for by agreement or bargain between the spouses or their agent. Lloyd v. T(sic)SUoyd (1859) 1 Sw. & Tr. 567 : 30 L. J. P. 97; Jessop v. Jessop (1861) 2 Sw. & Tr. 301 : 30 L. J. P. 193 : 4 L. T. 308 : 7 Jar. (N. S.) 609: 9 W. R. 640. In the present case, there was no understanding or agreement between the parties. No doubt, the husband suggested to the wife that she should not oppose the application, but he did so to avoid publicity, and also on the ground that in view of her confession it would be absurd for her to defend the suit. There was no intention to withhold any relevant evidence from the Court. In these circumstances, it is impossible to sustain the defence of collusion. As Lopes, L. J. explained in Butler v. Butler (1890) 15 P. D. 66 : 59 L. J. P. 25 : 62 L. T. 344 : 38 W. R. 390. the object of the special provision with regard to collusion is to compel the parties to come into the Court of Divorce with clean hands; it is to oblige them to bring all material and pertinent facts to the notice of the Court, to prevent their blinding the eyes of the Court in any respect, to oblige them so to act as to enable the Court to be in a position to do justice between the parties Bacon v. Bacon (1877) 25 W. B. 560;. Hunt v. Hunt (1877) 47 L. J. P. 22 : 39 L. T. 45. On this principle it has been held that the bar of collusion applies, even though the parties concur in getting up a true case Midgley v. Wood (1860) 30 L. J. P. 57. or even if the facts suppressed, though pertinent and material, would not have been sufficient to establish the counter charge Hunt v. Hunt (1877) 47 L. J. P. 22 : 39 L. T. 45. Similarly, it was ruled in Churchward v Churchward (1895) P. 7: 64 L. J. P. 18 : 71 L. T. 782 : 43 W, R. 380 : 11 R. 626. that if the initiation of a divorce suit be procured and its conduct provided for by agreement (specially if abstention from defence be, a term), this constitutes collusion, although it does not appear that any specific fact has been falsely dealt with or withheld. It is impossible to bring the present case within the principle thus enunciated, because there was no compact not to defend, and there was no intention to conceal material facts from the Court.
37. As regards desertion without excuse, the contention is based on the circumstance that the petitioner had deliberately abstained from marital intercourse with the respondent for nine years without any reason to justify such conduct on his part. Reference has been made to the decision in Synge v. Synge (4)in support of the proposition that refusal of marital inter course without excuse constitutes desertion in law. In my opinion, this contention is too breadly formulated and is not supported by the decision mentioned. In that case, the wife refused to submit to marital intercourse with her husband; he left her in consequence and subsequently committed adultery. The wife then petitioned for divorce on the ground of adultery and desertion. The Court refused the petition for dissolution of marriage. Sir Francis Jeune held in substance that a wife who, without cause, refuses to permit marital intercourse to her husband, cannot allege desertion without reasonable cause by him, if in consequence he refused to live with her. It is important to remember that under Section 27 of the Matrimonial Causes Act, 1857, it is necessary for the wife when she petitions for dissolution of marriage to prove adultery coupled with desertion without reasonable excuse on the part of the husband No doubt, there are observations in the judgment which may tend to support the view that the wife is herself in such circumstances guilty of desertion without reasonable excuse; but I do not think the judgment can be taken as an authority for the broad principle that refusal of marital intercourse without excuse constitutes by itself desertion in law sufficient to justify a decree for dissolution of marriage. The question now in controversy has been the subject of elaborate investigation by the Courts of the United States and has led to considerable divergence of judicial opinion upon the construction of Statutes of substantially the same scope as the Matrimonial Causes Act, 1857, and the Indian Divorce Act, 1869. The prevailing view is that the term desertion as used in the Divorce Statutes does not include the mere unreasonable refusal of one spouse to have with the other matrimonial intercourse which, in the words of Bigelow, C. J., in Southwick v. Southwick (1867) 97 Mass. 327 : 93 Am. Dec. 95. 'would be merely a breach or violation of a single conjugal or marital duty or obligation only, but it imports a cessation of cohabitation, a refusal to live together, which involves an abnegation of all the duties and obligations resulting from the marriage contract' Frills v. Frills 138 III. 436 : 28 N. E. 1058 : 14 L. R. A. 685 : 32 Am. St. Rep. 156;. Pfannebecker v. Pfannebecker 133 Iowa 425 : 110 N. W. 618 : 119 A. S. R. 608 : 12 Ann. Cas. 543; Reynolds v. Reynolds (1910) 68 W. Va. 15 : 69 S. E. 381 : Ann. Cas. 1912 A. 889; Typical statements of the conflicting views may be found in the judgments of Peters, C. J., in Stewart v. Stewart (25) 78 Maine 548 : 57 Am. Rep. 822. and of Mc Grill, Ch., in Watson v. Watson 126, 52 N. J, E. 349. The view of Peter, C. J., amplified is that marriages were encouraged (by Eclesiastical Law) for reasons of public policy and morality. If one party was impotent, that is, incapable of sexual intercourse, the marriage was held voidable, for the other party was not to be held in an unnatural relation, repugnant to sex, injurious to health and promotive of adultery. In our age and country, marriage is encouraged for the propagation of the race and the nurture and education of children in a home as well as the prevention of licentiousness; and the State has no active interest in preserving a marriage where these ends and purposes are defeated. If the impotence of a party defeats the purpose of marriage, it must be conceded that a wilful, continued, and unjustifiable refusal of sexual intercourse will do so, for what is the difference to the complaining party whether the other will not or cannot consent to marital intercourse? Chancellor Mo Gill, on the other hand, argues as follows: 'It would degrade the marriage relation to hold that it is abandoned when sexual intercourse only ceases. The lawfulness of that intercourse is, perhaps, a prominent and distinguishing feature of married life, but it is not the sum and all of it. The higher sentiment and duty of unity of life, interest, sympathy and companionship have an important place in it, and the thousand ministrations to the physical comforts of the twain, by each in his or her sphere, in consideration of the marriage obligation and without ceaseless thought of pecuniary recompense fills it up. These latter factors may possibly to some extent exist in other relations of life but not in completeness. They are necessary to the perfect marriage relation. My opinion is that our Statute means that divorce may be had when substantially all of the duties and amenities shall have been abandoned by the guilty party, wilfully, continuedly and obstinately, for two years and not until then. In other words, the desertion must be complete, not partial; and when the party accused remains in discharge of any duties which rise in value above mere pretence and form, the desertion which the Statute contemplates does not exist; that is, the deserted party must be deprived of all real companionship and every substantial duty which the other owes to him or her.' Upon a careful consideration of these conflicting views, I am unable to accept the conclusion that a mere refusal of the matrimonial bed constitutes desertion and furnishes adequate ground for dissolution of marriage, though text writers of repute have strenuously maintained that position (Bishop's New Commentaries on Marriage, Divorce and Separation, Volume I, sections 1676-1636 : Nelson on Divorce, Volume I, Section 71). I hold accordingly that the plea of desertion as a bar cannot be supported.
38. As regards the plea of wilful neglect or misconduct such as has conduced to the alleged adultery, the contention is based on the ground that when a husband has refused marital intercourse to his wife without reason, his conduct may be deemed to conduce to her adultery. Reference has been made in this connection to the decision in Dixon v. Dixon (1892 67 L. T. 394. But there is weighty authority, based on obvious good sense, against this view. I need refer only to the decision of Sir Francis Jeune in Synge v. Synge (4) where he quoted with approval the well-known observation of Lord Stowell in Forster v. Forster (3) 'that this species of malicious desertion is a ground of divorce in some countries, certainly not so here, and still less will it justify a wife in a resort to unlawful pleasures that lawful ones are withdrawn.' This is consistent with the observation of Sir C. Creswell in Rowe v. Rowe (28) (1865)4 Sw. & Tr. 162 : 34 L. J. P. III; 12 L. T. 639 : 11 Jur. (N. s.) 568 : 13 W. R. 1018. 'there is no doubt, after the case of Orme v. Orme (1824) 2 Addam. 384. that although this Court enforces conjugal cohabitation it does not pretend to enforce marital intercourse; the reasons why it does not embark in such an attempt are sufficiently obvious.' I hold accordingly that the conduct of the husband in this case cannot be held to have been such as conduced to the misconduct of the wife. This plea like the others must be overruled as unsustainable.
39. On these grounds I agree that the decree nisi must be confirmed and this appeal dismissed.