[1944] EACA 16

## DIVORCE HURISDICTION

## Before BARTLEY. J.

## EDGAR NOEL GRAFTON, Petitioner

$\mathbf{v}$ . IRIS EDNA GRAFTON, Respondent

## Cause No. 30 of 1943

Divorce—Restitution of Conjugal Rights—Cruelty.

The wife filed a petition for restitution of conjugal rights. The husband filed a reply denying his wife's sincerity and disclosed that he was filing a crosspetition for divorce on the ground of cruelty. The husband duly filed a petition on the ground of cruelty. The actions were consolidated.

Held (18-5-44).—(1) That taking as a guide the opinion or Lord Herchell in Russell v. Russell (1897) A. C. 395 at pp. 445, 456, 457: "It . . . is, indeed, beyond controversy, that it was not every act of cruelty, i it was not every act of crucity, in the originally and popular sense of that word which<br>amounted to saevitia, entitling the party aggrieved to a divorce; that there might be<br>many wilful and unjustifiable acts, inflicting p asserted that in not a single case was a divorce on the ground of cruelty granted unless there had been bodily hurt or injury to health or a reasonable apprehension of one or other of these ... the principle or rule that a judicial separation can only be granted on the ground of cruelty where there has been injury to body or health, or the reasonable apprehension of it, has been frequently recognized and acted upon since 1858. The law has never been enunciated in other terms, and no other test has been suggested as the correct one.", that the husband has failed to prove cruelty in law.

(2) That the absence of legal cruelty did not entitle the wife to a decree for restitution of conjugal rights.

(3) That the conduct of the wife had been such as to render it practically impossible for the husband and wife to live properly together and for the duties of married life to be discharged.

(4) That the article setting out acts of cruelty should not set out minute acts which could better be stated in a general way and are more proper to come from the witnesses. Both petitions were dismissed.

Dacre Shaw for the Husband.

Barret for the Wife.

JUDGMENT.—On the 27th May, 1943, Mrs. Grafton filed a petition for restitution of conjugal rights. On 19th June, 1943, her husband filed a defence to that petition denying his wife's sincerity but admitting that she had offered to return to him and that he had refused the offer. The defence also disclosed that the husband was filing a cross-petition for divorce on the ground of cruelty. This petition was duly filed on the 7th July, 1943, and on the cases being listed for hearing they were consolidated. Following the decision in Smith v. Smith (1900) p. 66 I held that the husband should begin and it will be convenient and proper to deal with his petition first.

The parties were married at Mombasa on the 19th March, 1939, and the only child of the marriage—a son—was born on the 17th July, 1940. Early in October, 1940, the wife went to South Africa on a visit and did not return until February, 1941. In the petition the husband alleged that from October, 1940, onwards the atmosphere of married life was bad and strained. The petition set out an article of complaint for each letter of the alphabet except the letter z and three other articles lettered (aa) (bb) and (cc) and one of the lettered articles was subdivided into six what I will call sub-articles. The remarks attributed to Lord Stowell in D'Arguilor v. D'Arguilor may well be quoted in connexion with some of the allegations made in the articles in this petition: "The article proceeds to state minute acts. I think they may be better stated in a general way: they throw a levity on the business when pleaded, and are more proper to come from the witnesses." The petition alleged two acts of personal violence, one in October,

1941, when it was alleged that when the parties were in a car with their baby son the wife knocked the husband's arm away violently when he was trying to protect the child from hitting the dashboard as the road was rough. The other was in July, 1942, when the husband alleged that his wife struck him violently several times hitting him on the face with her right hand. The wife admits that she slapped her husband's face once but she alleges that this happened on a different occasion when she was tackling her husband about his friendship with Miss Lockhead. She denies the former assault.

From the demeanour of the parties in the box and the evidence given I came to the conclusion that the husband was the more truthful witness but that he had not unnaturally exaggerated the gravity of many of the articles. I can well imagine from his demeanour in the box that he maintained throughout, as he said he did, a calm, helpful attitude, but human nature being what it is I can also imagine that this calm helpful attitude would on many occasions act as fuel to the fire it was intended to extinguish.

I do not think it necessary to deal with the evidence of the innumerable incidents in detail. Subject to what I have said as to exaggeration I accept that the husband has told what he believed to be the truth. In order that the husband may succeed he must establish bodily hurt or injury to health or a reasonable apprehension of one or other of these. As Bucknill, J., did in *Horton v. Horton* (1940) 3 A. E. R. 380 I take as my guide in this matter the opinion of Lord Herschell in *Russell v. Russell* (1897) A. C. 395 at pp. 445, 456, 457:

"It . . . is, indeed, beyond controversy, that it was not every act of cruelty, in the ordinary and popular sense of that word, which amounted to saevitia, entitling the party aggrieved to a divorce; that there might be many wilful and unjustifiable acts, inflicting pain and misery, in respect of which that relief could not be obtained... Upon a review of the authorities prior to the time when the Divorce Act (of 1857) came into operation, I think it may confidently be asserted that in not a single case was a divorce on the ground of cruelty granted unless there had been bodily hurt or injury to health or a reasonable apprehension of one or other of these... the principle or rule that a judicial separation can only be granted on the ground of cruelty where there has been injury to body or health, or the reasonable apprehension of it, has been frequently recognized and acted upon since 1858. The law has never been enunciated in other terms, and no other test has been suggested as the correct one."

When Russell v. Russell was decided the remedy for cruelty was a legal separation.

Lord Herschell, in the judgment referred to, quoted Lord Penzance in Milford v. Milford (1866) L. R. 1 P. & D. 295 where he said "The essential features of cruelty are familiar. There must be actual violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it: the Court as Lord Stowell once said has never been driven off this ground." Later in his judgment Lord Herschell said: "Not a few would think that the discharge of the duties of married life was impossible whenever love had been replaced by hatred, when insulting and galling language was constantly used, when, in short, the ordinary marital relations no longer prevailed. The opinion may be held by many that it would be well that in all such cases a judicial separation should be granted—that relief should be always given where the prospect of happiness so long as the parties cohabited appeared hopeless. But these are considerations for the Legislature, and not for the Courts. If divorce a mensa et thoro is to be extended beyond the limits within which it has hitherto been confined, the change must, in my opinion, be made by legislation. Our duty on the present occasion is to administer and not to make the law."

There is no question that a slap on the face or even several slaps on the face or knocking a husband's arm away as alleged in this case would constitute cruelty.

Robert Louis Stevenson in *Virginibus Puerisque* wrote: "For marriage is like life in this—that it is a field of battle and not a bed of roses." Had this paper of Stevenson's been addressed to husbands and wives instead of to girls and boys Stevenson might have added that it is not every wound received in action which entitled the soldier to be discharged from the armed forces.

Putting the husband's case at its highest I ask myself whether the numerous acts alleged by him, after making allowances for exaggeration, and considering all the evidence would justify me in holding that the test laid down in Russell $v$ . Russell (supra) had been satisfied. The evidence is that the husband and wife lived in the same house sharing the same bedroom until the wife left for South Africa on the 13th August, 1942. On the 4th September, 1942, the husband wrote Exhibit 5 to the wife in which he stated that he had irrevocably made up his mind that he could never take up life with her again. In Exhibit 5 the husband wrote that "the undeniable mental and physical load I have carried during the period has left its mark. I can carry on no longer." There is, however, no evidence as to the husband's health during the critical period except his own evidence that his health did suffer. It is true that on the 11th February, 1943, Dr. Carothers, the physician of the Mathari Mental Hospital, on being called in by Dr. Bambridge found the husband to be suffering from an acute anxiety state and Dr. Carothers formed the opinion after questioning the husband that his mental disturbance was due to domestic worry resulting from quarrels with his wife. Dr. Carothers expressed the view that as Grafton's condition was an acute one this meant it had not been in existence very long. The position then, however, was that the husband and wife had not been living together for six months, the wife having gone to South Africa on the 13th August, 1942. She arrived back in Kenya on the 16th January, 1943, but the parties had not met after her arrival. It is also worth noting that on the 1st March, 1943, the husband's advocate wrote to the wife's advocate stating that "Owing to overwork and worry his (the husband's) physical condition is very serious".

In *Horton v. Horton (supra)* Bucknill, J., gave a decree to a husband on the grounds of cruelty. In that case, however, there was medical evidence which proved that the husband's health had suffered while living with his wife and had improved when he ceased to do so, and the allegations of both physical and mental cruelty alleged and believed by the Court in that case were very much more serious than the allegations made in this case.

After duly considering the evidence of all the incidents I am of the opinion that the husband in this case has failed to prove cruelty in law and I dismiss his petition.

The question of the wife's petition remains to be considered. Although I have decided that the husband did exaggerate the gravity of the articles of complaint and that legal cruelty has not been proved this does not appear to entitle the wife to a decree for restitution of conjugal rights. I quote from Rayden on Divorce, 4th Edition, page 76:

"In the absence of a matrimonial offence, the causes must be grave and weighty which shall deprive a deserted spouse of this remedy for desertion, and the conduct of the petitioner must have been such as to render it practically impossible for the petitioner and respondent to live properly together, and for the duties of married life to be discharged."

In Russell v. Russell (1895) p. 315 the Court of Appeal dismissed both the petition of the Countess for restitution of conjugal rights and the Earl's petition for judicial separation on the ground of cruelty. Both parties appealed to the

House of Lords but owing to the Countess withdrawing her appeal and later endeavouring, at too late a date, to restore it, the House of Lords only considered the Earl's appeal. Lord Herschell in his judgment, however, in the appeal in the House of Lords (1897) A. C. 395 at p. 456, did express an opinion on the question of cruelty not amounting to legal cruelty being sufficient for the Court to refuse to afford its assistance to one who had stopped short of legal cruelty and had by insult and outrage driven his wife to leave him and then petitioned for restitution. The report reads:

"Indeed, if the broadest definition of cruelty which has been contended for in this case were accepted, it would still be to my mind unsatisfactory that a husband, who, though stopping short of cruelty in that sense, had by insult and outrage driven his wife to leave him, should, without repentance for the past or any assurance of amendment for the future, be able to invoke the assistance of the Court and call for the strong arm of the law to force his wife under pain of imprisonment to resume cohabitation. One would think that the Court might well refuse to afford its assistance to one who acted thus. And notwithstanding the decision to which I have referred, there are not wanting dicta of eminent judges, and notably that of Lord Stowell, that 'something short of legal cruelty' might bar a suit for restitution. However that may be, the matter is of less importance than it formerly was, as the Legislature has interposed; and even if the Court is still bound to make a decree for restitution, it is no longer bound to enforce it as before."

I ask myself whether the conduct of the wife in this case has been such as to render it practically impossible for the husband and wife to live properly together and for the duties of married life to be discharged and also has the husband proved grave and weighty causes sufficient to deprive the wife of the remedy she seeks for desertion. The husband not only alleges grave and weighty causes but he also alleges that the wife is not sincere in her petition for restitution. and Mr. Dacre Shaw for the husband referred me to the opinion of Sir James. Hannen in *Marshall v. Marshall* (1879) 5 P & D 23 that he had never known an instance in which it appeared that the suit for restitution was instituted for any other purpose than to enforce a money demand. At that time the Court had power to attach spouses who disobeyed restitution decrees.

On reading the correspondence between the advocates in this case contained in Exhibit A and reviewing the evidence one might well consider that this case did not constitute an exception and that this action was only brought because the husband had refused to provide what the wife considered to be an adequate allowance for her and the child.

I believe that in this case the presence of the husband's crippled father, aged 80, in the home from March, 1941, to February, 1942, was to some extent responsible for the present position, but I do not see why the husband should be penalized in any way just because it happened to be his father and not the wife's father who was partly responsible.

Quite apart from the sincerity of the wife in petitioning for restitution, and I may say that I have grave doubts as to her sincerity, I am of the view that even allowing for exaggeration the husband has advanced grave and weighty causes in the articles sufficient to entitle this Court to refuse to afford its assistance to the wife by ordering restitution of conjugal rights.

Although as I said before it is not every wound which will entitle a soldier to his discharge from the armed forces, some wounds are sufficient to prevent the soldier from being ordered back to the front line.

I accordingly dismiss the wife's petition. The husband will pay the costs of these proceedings.