dissent"> Sharpe, C. J.

(dissenting). In my opinion this court should not compel the plaintiff to accept an absolute divorce. The bill was filed under section 11398, 3 Comp. Laws 1915. Had it been filed under section 11479, such a decree could not be granted. The allegations and proofs required are no different under the two sections. It is a little difficult to understand why both are permitted to remain in the statute. But they are there, and this court has several times held that, where the bill is filed under the former section, an absolute divorce may, in the discretion of the court, be decreed. If we reverse the decree entered and grant it, we compel the plaintiff to accept that which she did not ask for and does not want. Had the *331 trial court expressed an intention to so. decree, she might have moved to dismiss, her bill, and, had she done so, it would have been compulsory on him to so order. Coon v. Coon, 163 Mich. 644.

The decree for separate maintenance was filed and entered on November 24, 1924. It was the duty of the clerk to enroll it after the expiration of 20 days from the time of its entry. 3 Comp. Laws 1915, § 12805. On attention having been called to his neglect, the court would have ordered it enrolled nunc pro tunc. 3 Comp. Laws 1915, § 12811; Powell v. Pierce, 168 Mich. 427, 430. Had it been enrolled at the proper time, or by order, defendant’s petition to amend must have been denied. Simpson v. Simpson, 223 Mich. 246. In my opinion he should not now be permitted to gain an advantage by such omission.

There is nothing in the record which calls upon this court to exercise a discretion favorable to him. . He answered the bill, and by cross-bill prayed for an absolute divorce, alleging therein extreme cruelty on the part of the plaintiff. Pending the hearing, the cross-bill was withdrawn. He testified:

“Q. The reason you did not push the cross-bill is what?

“A. I have nothing to go on.”

He did not deny the charges testified to by plaintiff, but contented himself with a showing of his ability to pay. When asked if he understood the nature of the case, he answered: “It is a matter of separate maintenance.” On cross-examination, when questioned about his acts of familiarity with a young lady, whose name was not mentioned, he admitted that he had visited her at the house where she was rooming “perhaps half a dozen times,” and when asked, “Do you think that is proper procedure for a married man with a couple of children?” answered: “I think so.” *332 He also admitted that he took her to Detroit once and “occasionally took 'her home from the campus.”

But it is said that these parties “are hopelessly estranged, have now been separated for over two years and a reconciliation is out of the question,” and that public policy will be better subserved by permitting them to remarry if they wish to do so. There is nothing in the record to even intimate that the defendant has at any time desired a reconciliation, or made any effort to effect one. He has not even visited his children since the decree was granted.

The marriage relationship arises out of contract. 3 Comp. Laws 1915, § 11363. But a status is created thereby in which not only the contracting parties but the State is interested. It—

“involves a personal union of those participating in it of a character unknown to any other human relation, and having more to do with the morals and civilization of a people than any other institution.” 18 R. C. L. p. 384.

The defendant has received a liberal education. It cannot be said that he did not fully appreciate the nature of the duties and obligations he assumed when the marriage was entered into. Admitting his misconduct, he is asking to be relieved therefrom. Had the plaintiff been content to struggle along and support herself and their children, the defendant could never have secured a divorce from her. But because she here seeks to compel him to aid in such support, we are asked to say that “public policy” justifies our granting him, against her protest, that which he could not otherwise have obtained.

An examination of the opinion of Chief Justice Campbell, quoted from by Mr. Justice Fellows, discloses that the complainant there filed a bill for divorce and was awarded “a separation from bed and board for two years only.” On defendant’s appeal, this *333 court, in the exercise of its discretion, granted her that which she had prayed for, an absolute divorce.

There may be cases in which the facts will justify a trial court, in the exercise of its discretion, in granting a decree of absolute divorce when the bill is filed for separate maintenance. Should it do so, this court would be loath to reverse its action. There may be cases in which the facts would seem to so fully justify such action as to cause this court to reverse the decree denying it. But in my opinion we are not called upon to do so on the record before us.

The decree should be affirmed, with costs to appellee.

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