014-NLR-NLR-V-22-ORR-v.-ORR.pdf
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Present; De Sampayo J. and Dias A. J.
OBB v. ORB.
389—D. 0. Colombo, 50,344.
Judicial separation—Grounds for—Cruelty.
It is not necessary to enable a wife to get a decree of judicialseparation that there must be proof of cruelty or harshness ordisplay of personal violence as to give rise to reasonable apprehen-sion that life, mind, or health would be endangered to plaintiff ifseparation were not decreed.
v Among other grounds, continuous quarrels and dissensions, orother equally valid reasons, which render the living together ofthe spouses insupportable, will justify a judicial separation.Although a wife or husband may reasonably be expected to bearwith occasional outbursts of illtemper, yet occasional assaults,however slight, accompanied by habitual intemperance, will makeco-habitation insupportable.
r | ''HE facts appear from the following judgment of the DistrictJudge (W. Wadsworth, Esq.):—
The parties were married in September, 1914, at St. Paul’s Church,Pe ttah. He was a Protestant and she a Roman Catholic. Defendant’sparents, did not consent to the marriage, and the marriage took placevery quietly, there being no invitations, no reception, and not even awedding cake.
The defendant'took his wife to her sister’s house. The third dayafter the marriage there was a wedding breakfast at defendant’s sister’shouse, when a few close relations sat at table. The plaintiff noticeddefendant paying attentions to her sister, grew perhaps jealous, andin a rage, presumably due to the influence of liquor imbibed, flungher plate at defendant and left the breakfast table. The others'also dispersed.,
This was the first incident which culminated later in the distrust ofthe defendant by plaintiff, and that not without good reason. On theother hand, plaintiff received on the marriage day a gold wristlet watchfrom one Cyril Fernando with his name engraved on it. Defendanttook objection to it and wanted the name to be' erased or the watchreturned. The defendant and plaintiff thus appear to have startedlife together with mutual distrust and a lurking suspicion. Thesesuspicions and distrust had grown more and more, and defendantappears to have objected to Cyril Fernando visiting her, and to plaintiffgoing out of the house without his knowledge, and on the other hand,plaintiff viewed with suspicion defendant being away from the house.It may be noted that defendant is a Railway Guard, who was obligedin the course of his duties to be absent from home for some days con-tinuously.
The parties were also addicted to drink, and whether they took liquorin small or large quantities, it is not surprising that they indulged in
1920.
quarrels, and iff exchange of words, where the lady appears to have gotthe better of the two, as defendant says for every word of his she repliedwith ten.
The defendant on returning from his duty found her away from thehouse, neglectful of her duties and care towards him. But still theypulled together for some time both in Colombo and at Moratuwa, wherethe defendant was transferred on duty.
On their return from Moratuwa, the plaintiff would not go and livewith defendant, as before, in his sister’s house, but when defendant fellill she went there and continued to live there till April 9,1917.
In about Juno, 1916, the defendant met a nurse who had travelledby train. This nurse appears to have taken a fancy to the defendantand wrote amorous letters to him. The defendant did not considerit improper to reply to these letters.
The original charge against him was that defendant ‘Committedadultery with this woman. There is no proof of this. But the letterswhich were found in defendant’s trunk, and admitted by him to havebeen received from this woman, show that the defendant was not faithfulto his wife.^
On April 9, when defendant left the bouse for a game of cricket,plaintiff took the keys of defendant from his pocket, went to the RailwayOffice, where defendant kept his trunk, stealthily opened it, found theletters therein, took them, went back to the house, took her things, andleft defendant’s roof.V
It is not difficult to understand a wife taking the step of leaving thehusband’s roof on discovery of such letters. However reprehensibleher conduct is in the taking of the letters, once she saw these letters,her first impulse would have been to leave the husband, who had, asappeared to her, diverted his attentions, and perhaps affection, toanother woman.
This is, in my opinion, the real cause of the plaintiff leaving thedefendant.
There was an allegation of cruelty against each other. I do notbelieve that there was actual physical cruelty by either. I do notbelieve the evidence of the two women or of the boy who were calledto prove cruelty. I attach no importance whatever to their evidence.
There was one incident, a very unhappy one, on April 3. Defendanthad dressed up and was going out. Plaintiff must have suspected him,and did not want'^im to go out. Plaintiff also must have felt that thehusband was trying to enjoy himself outside home without giving hersufficient money for herself. When he was about to go she snatchedhis hat off his head, put it down, and trampled it. This was in theverandah of the house. Defendant naturally lost his temper and flungthe cane he had in his hand at her. This struck her at the eye. Theremust have been some altercation also. I do not find in this any evidenceof cruelty. A single act done in the heat of the moment, and provokedby the plaintiff herself, cannot be considered as cruelty. Plaintiff,perhaps, would not have thought anything* of this, as she also was toblame in the matter, if not for the fact that a few days after she dis-covered the tell-tale letters which drove her to take the step of leavingthe house. I attach little importance^to her going to the doctor aftershe left the house, and after she saw that defendant advertised in thepapers that he would not be responsible for her debts.
I do not believe plaintiff’s evidence that defendant used personalviolence to plaintiff at any time, or drove ber out at night out of thehouse. . It is not unlikely that there were brawl3 and quarrels, not
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infrequently due to effects of drink. There was incompatibility oftemper^ There was no forbearance or patience on the side of either.There was suspicion and mutual distrust. It is human that underthese circumstances that any word spoken or act done by the one willappear in its worst colour to the other.
The idea of habitual oruelty is only an after-thought. Tor in theallegation in the original plaint, on which the cause of action for separa-tion is based, the plaintiff stated that defendant was guilty of such ill-treatment and misoonduot on his part as compelled her to leave the house.
As I find, it was not the illtreatment which compelled her to leavethe house. It was the suspicion, rightly based, of misconduct thatcompelled her to leave the house. The “ such illtreatment ” has there-fore no meaning. Is is illtreatment of the worst kind for a husband to beunfaithful to the wife. But I do not believe that there were any actsof oruelty or bodily harm by defendant to plaintiff.
The law on the point is fully and dearly set forth in the judgmentof Middleton J. in the well known case of Wright v. Wright.* Applyingthe principles therein laid down, I find that there is no cruelty orharshness on the part of defendant or of any display of personalviolence such as to give rise to reasonable apprehension that life, mind,or health would be endangered to the plaintiff if separation were notdecreed.
The mental cruelty displayed by a husband is often intolerable, anda wife who has reason to find that the husband has turned his affectionson another, an d is not true to her, may fin d this the worst form of cruelty,mere painful than any bodily pain or suffering, but unfortunately thelaw does not give relief to a mental suffering of this kind. Neither theRoman-Dutch law nor the English law would give relief. In fact,
■ the English law gives greater latitude to a husband.
The defendant morally is to be. condemned, but the law will notpermit me to grant the relief asked for by plaintiff. If the law per-mitted, I would, seeing that both parties are to blame, have ordered aseparation, with alimony at Re. 30 a month to be paid to plaintiff. Butas the law will not permit me to do so, it is with reluctance I dismissplaintiff’s action.
I make no order as to costs. –
J. C. Pereira (with him Canakaratne), for plaintiff, appellant.
A. St. V. Jayawardene, tor defendant, respondent.
Cur. adv. vult.
June 9, 1920. De Sampayo J.—
This action was brought by the plaintiff against her husband,the defendant, for dissolution of marriage on the ground of adulteryand malicious desertion, or in the alternative, for separation amensd et thoro on the ground of cruelty and illtreatment. At thetrial the claim for dissolution of marriage was abandoned, andthe action, was restricted to the alternative claim. The plaintiffappeals from the judgment of the District Judge refusing her thisrelief.
1 (1903) 9 N. L. if. 31.
192a
Orr v. Orr
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f620.
Da SampayoJ.
Orr v. Orr
It is not neoessary to deal with the facts at length, as the findingsof fact of the District Judge may he accepted. The only questionis, whether, on these findings, the plaintiff was not entitled to adecree for judicial separation. The plaintiff and the defendantappear to have been a very ill-sorted couple. There was troublebetween them from the beginning of their marriage. The plaintiffrelied on evidence intended to show that the defendant had violentlyassaulted her at various times, and on one occasion had driven herout of the house at night. The District Judge does not believethere were such acts of serious illtreatment, but he finds, generally,
“ there were brawls and quarrels, not infrequently due to effects ofdrink. There was incompatibility of temper. There was no for-bearance or patience on the side of either, and there was suspicionand mutual distrust.” As regards assaults, there is no doubt aboutone incident. On April 3,1917, the defendant was about to go outfor a cricket match, but the plaintiff, thinking that he really intendedto visit some other woman, objeoted to his going out, and therewas an altercation, in the course of which the defendant gave herone or two blows, which produced a blackeye and an injury on thechest and side. In this state of tension between the parties, theplaintiff’s discovery of some letters in defendant’s box on April 9,1917, brought about a crisis. The letters were written to defendantby a young woman, and on the face of them showed undue andimproper familiarity between her and defendant. . They even,afforded primd facie evidence of misconduct. In consequence ofthis discovery the plaintiff finally left the house on April 9, 1917,and brought this action a few months afterwards. The DistrictJudge’s remarks on this point were : “ It was not the illtreatment.which compelled the plaintiff to leave the house. It was the sus-picion, rightly based, of misconduct that compelled her to leave thehouso …. It is illtreatment of the worst kind for a husbandto be unfaithful to the wife.” Such mental cruelty, the DistrictJudge added, Was often intolerable, and was more painful thanbodily suffering, but he thought that the law did not permit him togrant relief to plaintiff on such a ground, but that if it did, he wouldhave ordered a separation with alimony at Rs. 30 a month to be paidto plaintiff. He concluded his j udgment by saying that he dismissedplaintiff’s action with reluctance.
I think the District Judge took too narrow a view of the law,both as regards the nature of physical illtreatment required and theeffect of immoral conduct on a claim for judicial separation. Hepurported to follow the decision in Wright v. Wright} but, I think,he misconstrued that decision as holding that there must be in everycase such cruelty or harshness or display of personal violence as togive rise to reasonable apprehension that life, mind, or health would
1 (1903) 9 N. L. B. 31.
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be endangered to plaintiff if separation were not doomed. Middle-ton J., who delivered the judgment of the Coart, said that VanLeeuwen and Yonder Linden in the oitations he made appearedto lay down the law in that sense, b.ut he immediately referred toVoet, in which he said the grounds for separation were put dis-junctively, and danger to life was an alternative ground to perpetualquarrels and dissensions, excessive cruelty, and harshness. Maars-dorp’s Institutes, vol. I., p. 75, sums up the Roman-Dutch law andstates that, among other grounds, continuous quarrels and dissen-sions or other equally Valid reasons, which render the living togetherof the spouses insupportable, will justify a judicial separation, andthat although a wife or husband may reasonably be expected tobear with occasional outbursts of illtemper, yet occasional assaults,however slight, accompanied by habitual intemperance, will makecohabitation insupportable. Vander Linden likewise says thatlawful reasons must be set forth in the application tending to showthat the continuing to live together is dangerous or at least insup-portable. The facts of this case, as found by the District Judge,appear to. me to fall within the principle thus enunciated. , TheDistrict Judge, I think, is also wrong in refusing to act on theevidence of misconduct. It is well known that a judicial separationmay be obtained on the same grounds as divorce. As no specificissue, however, was stated as regards adultery and the evidence wasnot particularly directed to that question, the evidence of misconductcannot, I think, be utilized further than as showing that, combinedwith the perpetual quarrels and dissensions the living together ofthese two people is, in fact, insupportable.
I would allow this appeal, with costs, and direct that a decree ofseparation a mensa et (hero be entered with a sum of Rs. 30 a monthto be paid by defendant to plaintiff as alimony.
1920.
Dr SampayoJ.
Orr v. Orr
Dus A. J.—I agree.