56 A.2d 332 | Pa. Super. Ct. | 1947
Argued November 13, 1947. The parties to this divorce action were married on April 13, 1942, and resided together until June 28, 1943, when the wife left the marital habitation. On August 13, 1943, the husband filed a libel for an absolute divorce on the ground of indignities, to which an answer was filed. On April 1, 1946, the husband amended his libel to include desertion. The action was heard by a master who, on January 14, 1947, filed his report in which, after concluding that the libellant had not established indignities, recommended that a divorce be granted to him on the ground of desertion. The respondent's exceptions were sustained by the court below and a decree of divorce refused on the basis that the wife had legal justification for leaving her husband, and he has taken this appeal.
The statutory definition of desertion is "wilful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for and during the term and space of two years". Act of May 2, 1929, P.L. 1237, section 10, sub-section D,
In Trussell v. Trussell,
In this case, on August 13, 1943, six weeks after the respondent left the marital habitation, the libellant filed his libel in divorce averring that "in violation of respondent's marriage vow . . . the said Mildred R. Latour, respondent, hath offered such indignities to the person of the libellant as to render the condition of the libellant intolerable and life burdensome . . . . and he has been compelled to withdraw from the respondent's house and family" and praying for "a decree in divorce, a vinculo matrimonii, . . . for the . . . separating of the said . . . respondent, from the said libellant's society, fellowship and company in all time to come . . ." It is difficult for us to conceive of any stronger way in which the libellant could express his "reluctance or unwillingness" to have the respondent live with him or to express his "consent or encouragement" of her in the separation. The time during the pendency of his action cannot be included in computing the statutory period of desertion. Lowe v. Lowe,
Decree refusing a divorce is affirmed.