his wife for five years consecutively, although for the greater part of the five years he had been in prison. This case, if it be good law, shows that a deserted wife is not to be deprived of the right which she would have to a divorce, simply because her husband, by his own misconduct, has rendered impossible that return, which, if possible, he would never have attempted. But it is of the essence of her right that she is injured by the continued absence of her husband, and if she consents to this continued absence, she is not injured, and has no right to a divorce.
The libellant, however, further insists that, although it be true, as a general proposition, that the consent of a libellant to a continued desertion is fatal to the libel, yet there is an exception; and he argues that if the consent to the desertion is for a justifiable cause, as in this case, the libel can be maintained. To establish this exception he relies on several English cases, Graves v. Graves, 3 Sw. & T. 350; Gibson v. Gibson, 29 L. J. M. 25; Gatehouse v. Gatehouse 36 L. J. M. 121; some of which, at any rate, support his contention.
But this exception rests on the special terms of the English statute. Desertion was never a cause of divorce in England, until the statute establishing the Divorce Court, 20 and 21 Vict., c. 8 (1857). There it appears for the first time. By that statute a woman cannot have a divorce for adultery alone, as for desertion alone; but for “adultery coupled with desertion, without reasonable excuse, for two years or upwards,” § 27.
Under this provision, if a man deserts his wife for two years, and also commits adultery, but his wife does not discover the adultery until after the expiration of the two years, and has, therefore, during the two years been always desirous for his return, she is clearly entitled to a divorce; but suppose that before the two years have elapsed she discovers that her husband is living in adultery, now, under these circumstances, the law must be either: First, That she is bound to take her husband back; or, Second, That she is not entitled to a divorce; or, Third, That she is entitled to a divorce, although she is not willing to take her husband back.
The English statute cannot have intended to declare either of the first two of these propositions. It cannot mean that she is bound to take back her husband; it cannot mean that she is entitled to a divorce from a secret adultery, but not from an open one. The third proposition must, therefore, express the intention of the statute, and the word “desertion,” as used therein, cannot have its ordinary meaning of going and staying away without consent, but must include a going and staying away with justifiable consent.
This novel and exceptional meaning of the word desertion is the result simply of the dilemma brought about by the English statute coupling adultery and desertion as a cause for divorce; but under the statute in this case, where either offence is alone a sufficient cause for divorce, the dilemma does not arise, and there is, therefore, no occasion to give an artificial meaning to the term desertion, or to use it in any other than its natural sense. This result is in accordance with the American authorities. Porritt v. Porritt, 18 Mich. 420; Salorgne v. Salorgne, 6 Mo. Ap. 602.
If the libellant wants a divorce from his wife he must prosecute the libel for adultery.
Libel for desertion dismissed.
