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Judgment
Lentin, J.—The Gentlemen Delegates, who are the sole Judges of facts, have unanimously found that the defendant to the suit is guilty of desertion and that the defendant to the counter-claim is guilty of constructive desertion. In the very special and peculiar facts and circumstances of this case, I shall follow the ratio of the House of Lords in Blunt v. Blunt [1943] 2 All. E.R. 76, that where injustice would result in granting relief to one party and refusing it to the other, the Court should pronounce the decree in favour of both without drawing a distinction between them.
In Price v. Price [1968] 3 All. E.R. 543, it was held that both the husband and wife were guilty of mutual desertion as neither obtained nor sought to obtain the consent of the other and that neither thought that he or she had the consent of the other or cared whether the other consented or not. It was further held in that case that what applies to the wife applies equally to the husband.
In Wevill v. Wevill (1962) 106 S.J. 155, it was observed that a finding of mutual desertion could be made on very special facts; that mutual desertion could only arise where the act of each spouse was outside the knowledge of the other so that no conduct of the other could give rise to an inference of consent.
In Mehta v. Mehta (1965) Suit. No. 4 of 1963, Kantawala J., as he then was, sitting as the matrimonial Judge in the Parsi Chief Matrimonial Court at Bombay, passed a simultaneous decree of divorce in favour of both the parties inter alia on the ground of desertion.
Thus in the very special and peculiar facts and circumstances of this case the wife would be entitled to a decree for divorce on the ground of desertion and the husband would be entitled to a similar decree on the ground of constructive desertion.
I pass the following decree:
There will be a decree for divorce in favour of the plaintiff to the suit against the defendant to the suit in terms of prayer (B)(ii) of the plaint on the ground of desertion.
There will also be a decree for divorce in favour of the plaintiff to the counterclaim against the defendant to the counter-claim in terms of prayer (a) of the counterclaim on the ground of constructive desertion.