A wife is entitled to a divorce on the ground of adultery coupled with desertion if the husband has been living in adultery with another woman and has made it impossible for the wife to return to him.

JUDGMENT - 1. The appellant original applicant held filed a petition for divorcee against her husband under Section 10 of the Indian Divorce Act. The appellant claimed divorce on two distinct grounds. She prayed that her marriage may be dissolved on the ground that since the solemnization thereof her husband has been guilty of adultery coupled with such cruelty as without adultery would have entitled her to a divorce, a mensa et toro. She also claimed dissolution of marriage on the additional ground that since the solemnization of the marriage her husband was guilty of adultery coupled with desertion without reasonable excuse for two years or upwards.

2. The respondent-husband resisted the application and denied the allegations about adultery, cruelty and desertion. After consideration of the evidence adduced by the parties, the learned Extra Joint Judge at Poona came to the conclusion that the petitioner failed to establish that the petitioner failed to establish the ground based upon adultery coupled with legal circulate. However, the learned Judge was sufficient for recording a finding that the respondent husband was living in adultery for two years or more since the solemnization of the marriage. But according to the learned Judge the evidence adduced to the learned Judge the evidence adduced by the petitioner was not sufficient to support a finding that the husband was guilty of desertion. As no case of adultery coupled with desertion without reasonable excuse for two years or upwards was made out by the petitioner, she was not entitled to any relief. Even the separate application for alimony pendent lite was dismissed by the learned Judge as the petitioner had not established that she had no other sufficient means of livelihood.

3. Mr. Salvi, who appears for the appellant, has challenged the decree mainly on the ground that the learned Judge has committed an error of law while recording a finding that the facts and circumstances placed on record by the parties do not make out a case of adultery coupled with desertion. For appreciating this contention a few more facts will have to be stated.

4. The petitioner is a resident of Ahmednagar. The respondent is working at Kirkee Factory. He is residing with one Anjani R. Kasab at the Nurses quarters at Kirkee. Anjani R. Kasab is a spinster. She is more or less of the same age as the husband. She may even be younger by about 4 or 5 years. The marriage between the appellant and the respondent was solemnized at Ahmednagar on 29th May, 1964. After marriage petitioner lived with her husband at Kedgaon, a place where her mother-in-law stayed. Thereafter she went to her husband at Kirkee. She was with her husband till the end of June 1964. She left gaon. She spent there a few days and thereafter she returned to Ahmednagar. She is with her parent for all these years thereafter.

5. She had filed an earlier petition in the District Court at Poona. It was Marriage Petition No. 7 of 1965. She had claimed divorce on the allegation that the husband was guilty of adultery coupled with cruelty. The assertion in the petition was that for a week after the marriage she was staying with her husband at Kirkee. During this period her husband led an adulterous life with Anjanibai. The learned District judge after consideration of the case came to the conclusion that the evidence adduced by the petitioner was not sufficient to warrant a finding that the husband was guilty of adultery. the application was dismissed.

6. The petition of the appellant was resisted by the husband. inter alia, or the ground that the action of the petitioner is barred by res judicata. The learned Judge examined this contention and negative the same on the ground that the petitioner had then alleged that during the first week after marriage the husband had committed adultery. The present application seeks relief as events have happened after the expiry of that period. It is for this reason that Mr. Dalvi for the respondent could n

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