The parties having been legally married, it was the duty of the wife to dwell with her husband, to whom belonged the right to fix a suitable and proper place for their abode.
The libellee’s refusal, for three consecutive years, to live with her husband amounted to desertion; St. 1873, c. 371, § 2; and entitled the libellant to a divorce, unless he is defeated by the provisions of the Gen. Sts. c. 107, § 12, which declare that no divorce, with exceptions not necessary now to notice, “ shall be decreed for any cause, if the parties have never lived together as husband and wife in this state.”
But a true interpretation of this section does not require proof of matrimonial cohabitation, or matrimonial intercourse, as sometimes distinguished from it, in order to give this court jurisdiction ; and it is sufficient if the parties have both lived and had their actual domicil and place of residence within this Commonwealth, while legally sustaining the marriage relation towards each other. To hold otherwise would be to declare that there could be a legal marriage within this Commonwealth between parties domiciled and continuing to reside here, and which no other tribunal would have jurisdiction to dissolve, which was not within the general provisions of our own divorce laws.
Divorce granted.