Appeal from a decree passed by Mr. Justice Kennedy in the Original Civil Jurisdiction of the High Court.
This was a petition by the wife for dissolution of marriage on the grounds of adultery and desertion. The petitioner stated that she was married to the respondent, in Calcutta, in the year 1856, she being then over fifteen years of age; that in the year 1862 she was induced by her husband to employ an ayah named Lado, and from that time he commenced to neglect his wife and treat her harshly; that on and before the 31st of October 1864, the respondent committed adultery with the ayah, Lado, but nevertheless the petitioner continued to cohabit with him up to the year 1869. That from 1869 to 1871 the petitioner and her husband continued to live together, first in Dhurrumtollah and afterwards in Circular Road, but during that time the petitioner withdrew from conjugal intercourse in consequence of his misconduct. That from 1866 to 1871 the petitioner supported both the respondent and herself by her own exertions as a school teacher; that in February 1871 they separated by mutual consent, the petitioner no longer continuing able to support both; that thereupon she went to live with her friends, and he with his. That in 1871, while the husband was living with his friends, the petitioner visited him twice, but he treated her very coolly; that in March 1872, he left Calcutta for Madras, where he resided ever since, occasionally visiting Calcutta, but never coming to see or speak to her. That since the separation in 1871 the respondent had never contributed to the support of the petitioner; and that in 1874 and 1875 he, whilst residing at Madras, had been guilty of adultery on several occasions.
It appeared from the evidence in support of the petition that conjugal intercourse between the parties had not taken place since 1869; that after the separation by consent in 1871, the wife never attempted to induce her husband to return to co-habitation; and that during one of the visits of the respondent to Calcutta, in the year 1873, the petitioner saw him at the King of Oudh's Menagerie, but did not offer to speak to him. It also appeared that at the time the parties separated in 1871 they had not given up all idea of living together again.
Branson, Jackson and Trevelyan, for the Petitioner.
The Respondent did not appear.
Kennedy, J.:—
I am very much afraid I cannot give the lady the relief she seeks. On her own showing there never was a time at which desertion could be said to have commenced. It is not necessary for me to express my opinion of the respondent's conduct,—the unfortunate lady seems to have had much to complain of,—but differences arose and conjugal intercourse, we are told, ceased two years before that which amounted to a separation. No doubt, they seem to have lived very unhappily together. Evidently, circumstances occurred which compelled the husband to live apart with her consent. In fact, unless on an undertaking of better behaviour, or the husband seeking to induce her to return to co-habitation, she did not seem anxious to return to co-habitation. She did not write, she says, because it was his part to have first written, and she did not seek to return. The cases cited were very strong, but of very great peculiarity. I think we have got the true principle laid down in Fitzgerald v. Fitzgerald, L.R, 1 P. and D., 694, and Ward v. Ward, 1 Sw. and Tr., 500. In Fitzgerald v. Fitzgerald, in which the conduct of the husband seems to have been as had as had could be, the principle is laid down in the plainest manner that:—“No one can desert who does not actively and wilfully bring to an end an existing state of co-habitation. If the state of co-habitation has already ceased to exist, whether by the adverse act of husband or wife, or even by the mutual consent of both, desertion becomes impossible to either, at least until their common life and home has been resumed. The refusal by either at the request of the other to assume conjugal relations does not constitute the offence of desertion.” Therefore, the suggestion I threw out in the argument, of converting the original separation into desertion by a requisition to resume conjugal relations, would seem not to be well founded law. In that case of Fitzgerald v. Fitzgerald, the facts were as had as anything could be. That placitum seems fully borne out by the judgment of the Court. The Judge Ordinary says: “Putting the facts in the most favourable light for Mrs. Fitzgerald, it, would, I presume, be argued thus: After the first suit was at an end, Major Fitzgerald might, at any time, have demanded co-habitation of his wife; she was not unwilling to return to him; and if she had been, the law would have compelled her; but he made no such demand; therefore, he wilfully kept apart from her; therefore, he deserted her. If, indeed, keeping apart from a wife who has voluntarily quitted her husband against his will and withdrawn from co-habitation, is the same thing as ‘deserting’ her, the argument must prevail. But I cannot think that it is. It is one thing to make a breach, it is another to refrain from attempts to heal it. Desertion means abandonment, and implies an active withdrawal from a co-habitation that exists; the word carries with it an idea of forsaking or ???, and is hardly satisfied by the negative position of ??? apart.” There was a re-hearing applied for, but the Court ??? the same opinion as before.
We thus know it established that “no one can desert who does not actively and wilfully bring to an end an existing state of cohabitation,” which certainly does not seem to have occurred in this case. Possibly it might be noted under the circumstances of this case, that a call to renew co-habitation might convert the separation into desertion, but I think it would be dangerous for the petitioner to try it, as, if acceded to, it would certainly condone the prior offences, and disentitle this unfortunate lady even to judicial separation. In Ward v. Ward, Cockburn, C.J, and the Judge Ordinary were sitting together. Cockburn, C.J says: “The evidence raises a doubt as to the desertion. If disagreements and quarrels took place, and both parties were bound over to keep the peace, can you treat a subsequen separation as desertion? Suppose, an arrangement had been made by the advice of the Police Magistrate to separate by mutual consent; though the husband may have left her, yet, if there were a corresponding animus on the part of the wife, if she were a party to his leaving and consented to it, that would not constitute desertion. The act of desertion must be done against the will of the wife.”
Again, there is the case of Townsend v. Townsend, L.R, 3 P. and D., 129, where the original separation being involuntary in consequence of fear of arrest, it was held not to be a desertion. Here, it was involuntary from want of means, and, in consequence of that pressure, assented to by the petitioner. I think, therefore, that, having regard to the foregoing decisions, I should not be justified in pronouncing for a dissolution, but the petitioner is duly entitled to a judicial separation. I shall not, however, give a final decision — that the petitioner may determine whether she will take the opinion of another Court, or whether she will try the effect of such a notice as I suggested.
[The petitioner declined to accept a decree for judicial separation, and applied for leave to put further evidence on the record, and for a further hearing. The hearing having been granted, the following judgment was delivered by the same learned Judge:]
Possibly, if Mr. Jackson's very able argument had been addressed to me before I had occasion to consider the case, and had formed a deliberate opinion, I might have given judgment in favour of his client; but, when I gave my former judgment, I had thoroughly convinced myself by examination of all the decisions bearing on the subject, that there was not in this case what amounted to desertion, and I still retain this opinion. I had not intended to permit further argument, but the petitioner having applied for leave to put further evidence on the record, I postponed the case for that purpose; and I then did not wish to prevent Mr. Jackson calling my attention to his view of the authorities. Naturally the Courts before whom this question has come, were anxious to avoid laying down a general principle rashly, and, as much as possible, relied on the special circumstances in each case as constituting desertion, or preventing the separation from taking that character; but in Fitzgerald v. Fitzgerald, L.R, 1 P. and D., 694, the Judge Ordinary does lay down in unmistakable terms a principle, which, I think, I am bound to accept, even if it did not commend itself to my mind as correct. He says: “No one can desert who does not actively and wilfully bring to an end an existing state of co-habitation.” He explains, as I understand him, that mere absence does not necessarily cause a breach of co-habitation; that there may be cases in which, as in Williams v. Williams, 3. Sw. and Tr., 547, there was personal severance with what may be called constructive co-habitation; but I do not see that the present case is brought within them. Townsend v. Townsend, L.R 3 P. and D., 129, shows that withdrawal from the wife's society under pressure of circumstances is not abandonment against her will; and even if (in spite of the language in Fitzgerald v. Fitzgerald) any subsequent events may change the original separation into desertion, I do not find any thing to bring this case within them as they are explained in Fitzgerald v. Fitzgerald, and to make me believe that the co-habitation was merely suspended.
On the contrary, in this case this unfortunate lady had suffered long and much from her husband's misconduct; conjugal co-habitation in its full sense had ceased for two years before there had been a severance of residence by mutual consent, caused by the pressure of circumstances; and I cannot help believing that the must unconsciously overrate her wish to return to co-habitation, when one sees the earlier statements in ??? examination and her description of her attempts to re-claim him, which forcibly brought to my mind the case of Adriana in the Comedy of Errors. I cannot get over the express language of Lord Penzance in Fitzgerald v. Fitzgerald. If the state of co-habitation has already ceased to exist, whether by the adverse act of husband or wife, or even by the mutual consent of both, desertion, in my judgment, becomes impossible to either, at least until their common life and home has been resumed. If, however, this opinion of mine be erroneous, my error may be corrected by the Court of Appeal; and I have, therefore, afforded this lady the fullest opportunity of bringing upon the record every fact deemed material by her advisers.
The petitioner appealed.
Jackson (Trevelyan, with him), for Appellant, contended that the judgment of the lower Court was wrong, on the ground that the separation was not voluntary and that the respondent had showed by his subsequent conduct that he deserted his wife when be went to Madras in 1872.
[Garth, C.J—It is not a question of what the respondent has done. His conduct may seem to have amounted to desertion over and over again. You have to satisfy us that the separation was against the will of the wife; if it was not, the separation was voluntary and does not amount to desertion.]
Counsel cited Haviland v. Haviland, 32 Law Jour. Pr., 66, Gatehouse v. Gatehouse, L.R, 1 P. and D., 331; Meara v. Meara, 35 Law Jour. Pr. 33; Cunlip v. Cunlip, 27 Law Jour. Pr., 64, Graves v. Graves, 33 Law Jour. Pr., 66; Williams v. Williams, 3 Sw. and Tr., 547; Gibson v. Gibson, 29 Law Jour. Pr., 25.
The judgment of the Court(1) was delivered by Garth, C.J:—
In this case, the parties were married in September 1856; the petitioner being then about fifteen years of age. They lived together in Calcutta for some years after the marriage, but they had no children. In October 1864, the petitioner discovered that the respondent had committed adultery with her Ayah. She did not, on this account, withdraw from co-habitation with the respondent; but from that time the respondent treated her with neglect. About this time she began to support herself by teaching in a school; and in 1869, in consequence of his constant absence until a late hour at night, she ceased to have sexual intercourse with him. They continued, however, to live together; and there is no reason to suppose that the husband was desirous of renewing the intercourse. On the contrary she states, and this is not denied, that at this time her husband wholly neglected her. During this time also the respondent contributed nothing to the support of the petitioner, and frequently made demands upon her for money for his own purposes. They became involved in debt, and in 1871 were obliged to give up the house in Circular Road in which they then resided. The petitioner then proposed that they should take a smaller house, which they could have done, but the respondent refused to sign any lease; and it was then, under the pressure of pecuniary difficulties, that they arranged that he should go to his mother's house until they could find means to provide a home. Whilst he was at his mother's house, she visited him twice, but he treated her with the greatest indifference. When the house in Circular Road was given up, the wife had retained sundry articles of furniture with a view to the possibility of their living together again; but the husband had them sold, and the proceeds were spout by him. He afterwards left his mother's house, and refused to tell his wife where he was going. In 1872, without any communication with his wife, he left Calcutta for Madras, where he has since resided, and has been guilty of frequent acts of adultery. He has occasionally visited Calcutta, and she once saw him, but only in public. On this occasion she did not speak to him, not be to her. From 1869, down to the present time, the petitioner has resided in Calcutta, and the respondent has contributed nothing to her support.
There being no doubt as to the adultery, the only question is as to the desertion. The learned Judge of the Court below thought that he was compelled, upon the authority of the case ??? gerald v. Fitzgerald, L.R, 1 P. and D., 694, to hold ??? case there had been no desertion, because the separation ??? was assented to by the wife. Now we do not for a moment dispute the proposition that, either where the separation is the act of the wife, or where the wife of her own free will assents to a complete separation, there can be no desertion; nor, until husband and wife have again co-habited, can subsequent conduct transform what was a voluntary separation into desertion by the husband. But we think this is not a case of that kind. In the case of Fitzgerald v. Fitzgerald, upon which the learned Judge relied, the separation took place by the act of the wife alone; not in obedience to any external necessity, but for the express purpose of avoiding continued intercourse; and intercourse was not merely suspended by her, but put an end to. It is upon these grounds that Lord Penzance considered the desertion in that case to be the act of the wife. But here the case is wholly different. The wife, notwithstanding the gross' misconduct of her husband, continued to live with him for seven years; during the latter years, struggling by her own earnings to keep up a home, for herself and him, whilst he did nothing. Even when at last she was compelled by their debts, and his refusal to enable her to take a smaller house, to separate from him, she did all she could to prevent an entire separation, and to make it practicable for them to live together again. But she was thwarted in these attempts by her husband; he sold the little furniture she had saved; he repelled her visits; and at last he refused to let her know where he was to be found. No doubt, after he left Calcutta for Madras, she made no further attempt to go to him, or to induce him to return. But we think she had done, not only all that any woman could be reasonably expected to do, but, from a legal point of view, enough to show that the separation was neither brought about by her, nor in accordance with her wishes. It may, indeed, be true, that the respondent would have been perfectly willing to go on living with the petitioner, if she could have earned enough money for them both, whilst he remained in idleness; aud as long as she could do this, she was also willing, in spite of his misconduct, to live with him even upon these terms. But we think it is clear from his conduct immediately after they gave up home in 1871, and subsequently, that, when he found his wife could not support him, he was desirous to be rid of her altogether. After they had been compelled to live apart, by difficulties of his own creating, he was bound to keep up with her such intercourse as the nature of the case admitted; but this, in our opinion, he distinctly refused to do.
When the case was being argued, we were disposed to think that the petitioner having for two years withdrawn from conjugal intercourse with the respondent, she could not afterwards complain that her husband had deserted her; but it is clear that this withdrawal was brought about entirely by the husband's misconduct, and that it was a matter to which be on his part was wholly indifferent.
We cannot find any authority that a withdrawal under such circumstances disentitles a wife to charge her husband with desertion. We think, there fore, that we ought to grant a decree nisi for a dissolution of the marriage, instead of a judicial separation; and that the petitioner should have her costs in both Courts.