Abdul Aziz J (delivering oral judgment):

This is a petition for divorce based on two grounds, desertion and cruelty.

The petition stated that the parties were married in Seremban and that after the marriage the couple went back to Ceylon where they set up No. 27, Station Road, Ragama, Ceylon as their matrimonial home.

The petition charging the matrimonial offence are couched in very general terms but from what I gather from the evidence the petitioner alleges desertion and cruelty on the part of the husband. Halsbury's, Vol. 12 pp. 242 et seq) says that the offence of desertion is a course of conduct and it must be proved that it has existed for a period of three years immediately preceding the presentation of the petition and for the act of desertion to exist there must be both the factum or physical separation and there must be intention to desert. All the necessary ingredients of desertion must continue throughout the desertion period. In the case of desertion the burden is on the petitioner to show that desertion without cause subsisted throughout the period. The deserting spouse must be shown to have persisted in the intention to desert throughout the whole of the three year period, that the petitioner should be able honestly to say that he or she were willing to fulfil the duties of marriage and that desertion was against his or her will and continued throughout the period without his or her consent. The Court must be satisfied on the evidence that desertion is proved and it must be proved beyond reasonable doubt. The evidence need not reach certainty but it must reach a high degree of probability.

The Court also demands that when a matrimonial offence, whatever it is, is charged, if possible the evidence of the spouse making the charge should be corroborated. The necessity for corroboration is not an absolute rule of law and while corroboration is desirable and usual there is no rule which prevents a tribunal from finding the offence proved in the absence of corroboration.

It has been alleged here that this was not a case of actual desertion but was a case of constructive desertion. I think this is what Halsbury's says on constructive desertion (Vol. 12 p. 247):

In the case of constructive desertion the onus of proving that the intention to desert continues may be much lighter than in the case of mere withdrawal from cohabitation. A mere wish or intention that the other spouse should leave is insufficient by itself to constitute constructive desertion. The wish or intention must be accompanied by conduct which is of a grave and weighty character and which the Court can properly regard as equivalent to expulsion of fact.

Now so much for the first point. Having seen the petitioner and having heard her evidence, all she has to offer by way of evidence to show that there was constructive desertion are several acts of the respondent, one of which is contained in para. 14. The petitioner alleged that during the Singhalese and Tamil riots in Ceylon in 1958 the husband turned out to be a coward. He turned away and hid under the bed while the rioters assaulted the petitioner. I do not know how it can be said an act of cowardice of this nature can be regarded as desertion. This was in 1958. Apparently even after this incident the parties continued to cohabit because after the riots the petitioner gave birth to the third child and after that certain other events also took place. How under these circumstances can this Court infer that there was constructive desertion on the part of the husband, I really fail to see. What seems clear was that some time after this incident the petitioner left the husband, first by sending the children back to Malaya and then following the children and settling down in Malaya and obtaining a job here.

The second ground of the petition is cruelty. This is what Halsbury's, Vol. 12 pp. 269 et seq) says on cruelty:

The legal conception of cruelty, which is not defined by statute, is gener