JUDGMENT :- This is an appeal by a Christian husband against the order dated 3-2-1965 of the learned District Judge, Kanyakumari, dismissing his petition O. P. No. 41 of 1964 filed under Section 32 of the Indian Divorce Act, 1869, for restitution of conjugal rights. The appellant and the respondent Abraham Nadachl, were married according to the Christian rites in 1956. The petition itself starts by saying that there was an estrangement between the parties. As a result thereof, the wife filed M. C. No. 31 of 1961 before a Magistrate under Section 488 of the Criminal P. C. and obtained an order for maintenance of Rs. 25/- per month. The date of this order appears to be 2-3-1962. The husband for his part, filed O. P. No. 44 of 1962 for restitution of conjugal rights in the Court of the District Judge Kanyakumari. The appellant, however, did not press that petition and an endorsement was made by him on 28-3-1963 to the following effect. "It is unnecessary to proceed with the petition.'' The wife and her counsel made an endorsement "I agree". That petition was accordingly dismissed. (After discussing the evidence in Paras 2 to 17 his Lordship proceeded).

18. It is thus abundantly clear that the specific case of the husband that his wife rejoined him on 25-2-1963, that the petition was dismissed on 28-3-1963 because of that circumstance and that she left the house abruptly on 22-8-1963, is false. It is also clear that another woman by name Bhai is living with him in his house. Learned counsel for the appellant, however, argues that even on these facts the appellant is entitled, as a matter of right, to restitution of conjugal rights. The argument is that under Section 33 of the Indian Divorce Act nothing shall be pleaded in answer to a petition for restitution of conjugal rights which would not be ground for a suit for judicial separation or for a decree of nullity of marriage. Section 22 lays down the grounds for judicial separation, namely, adultery, cruelty, or desertion without reasonable excuse for two years or upwards. It is urged that these elements have not been proved. The grounds for nullity of marriage are set out in Sections 18 and 19 of the Act. But the facts proved would not bring the case within those provisions.

19. The argument is, however, untenable, because in the first place, adultery on the part of the husband has been established, because it has been proved that he has been living with Bhai and having continuous sexual intercourse with her. There is no proof that Bhai is a married woman. But, for the purpose of the Indian Divorce Act, 1869, it is not necessary that Bhai should be a married woman in order to hold that the appellant is guilty of adultery. The word 'adultery' has not been defined in the Act, and, therefore, the ordinary dictionary meaning must be applied. In Websters New English Dictionary, 1888, the following meaning is given :

"Violation of marriage bed; voluntary sexual intercourse of a married person with one of the opposite sex, whether unmarried or married to another; (the former case being technically designated single, the latter double adultery)."

The same meaning is given in Fowler's Concise Oxford Dictionary :

"Voluntary sexual intercourse of married person with one of opposite sex married (double adultery) or not (single adultery)."

No doubt, under Section 497, I. P. C. in order that a man can be guilty of adultery, the woman must be a married person. The actual definition of the offence runs thus :

"Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with "imprisonment of either description for a term which may extend to five years, or with fine or with both. In such case the wife shall not be punishable as an abettor."

Only one form of adulte