JUDGMENT

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 b