[1943] EACA 76

## **DIVORCE JURISDICTION**

### - BEFORE LUCIE-SMITH, J.

## PHILIP ANDREW TURNER. Petitioner.

ν.

#### EDITH CHRISTINE TURNER, Respondent

# Cause No. $29$ of 1942

Divorce—Matrimonial Causes Ordinance—Desertion—Section 7 (b).

The facts sufficiently appear from the judgment.

**Held** (28-1-43).—That the facts proved did not prove desertion.

Kaplan for petitioner.

No appearance of respondent duly served.

JUDGMENT.—This is a petition for dissolution of marriage on the ground of desertion under section 7 (b) of the Matrimonial Causes Ordinance, 1939.

The petitioner alleges that his wife has deserted him for a period of at least three years immediately preceding the presentation of the petition.

The petition herein was presented on the 29th October, 1942.

Desertion is alleged to have commenced in 1938 when the petitioner went to Tanganyika I gather with the intention of having a look round and if satisfied starting business there. On that occasion the petitioner asked his wife to accompany him and she emphatically refused.

In February, 1939, the petitioner returned from Tanganyika and immediately joined the respondent at the house of a Mr. and Mrs. Imbert, with whom the respondent had been staying during her husband's absence.

The petitioner states that the respondent still persisted in her refusal to live with him, but that they later decided that owing to the necessity of preserving appearances for the sake of their friends in Kenya and the respondent's people in England they would live at the Avenue Hotel in Nairobi, occupying separate rooms. Mr. Kaplan for the petitioner admits that they associated together at the Avenue Hotel. In view of this admission and the admission that they stayed together at the hotel "to keep up appearances", I think it is a fair inference that they had their meals together, entertained and were entertained together and generally went about and were seen together; in fact carried on in the normal manner of husband and wife with the exception of sharing the same bed or having sexual intercourse.

This state of affairs went on until the middle of November, 1941, when the respondent took steps to leave and presumably did leave the hotel as the result of a discussion between the parties as to the mode of life they were living and the husband's insistence on his having the "rights and privileges of a husband"; this phrase must I think be taken to mean sexual intercourse.

On the above facts can it be said that there was desertion in 1938 when the petitioner went to, Tanganyika to look round and the respondent refused to accompany him?

Several learned Judges have refused to attempt to define desertion exhaustively. In Powell v. Powell (1922) L. R. P. 278, Lord Buckmaster at p. 279 says: "The only difficulty in this case is on the question of desertion. It is an offence difficult to define. Neglect or contempt, however hard to bear, do not constitute desertion". He then sets out the facts in that case and then goes on to say: "Except that these two persons were sheltered by one and the same roof, there was desertion of this wife by her husband in every meaning of the word". Desertion was found proved.

In Pulford v. Pulford (1923) L. R. P. 18 the dictum of Lord Penzance in Fitzgerald v. Fitzgerald L. R. 1 P. & M. 694 that "Desertion means abandonment, and implies an active withdrawal from a cohabitation that exists" was discussed by the President. Sir Henry Duke.

In Jackson v. Jackson (1924) L. R. P. 19 it was held that desertion in matrimonial law must include the abandonment by one spouse of the other, or causing. her or him to live apart. The mere refusal or abandonment of sexual intercourse while the parties continue to abide under the same roof is not desertion. At p. 22 of the report the President, Sir Henry Duke, says: "Now I come back to the question of law. The proposition is that refusal of, or purposeful abstinence from. sexual intercourse on the part of one of the spouses towards the other is matter upon which desertion may be found, that it may be found either upon that fact in conjunction with other facts which do not establish desertion, or by the force of that very fact".

In discussing the above proposition the learned President referred to the dictum of Lopes, L. J., in Reg. v. Leresche (1891) 2 Q. B. 418 at p. 420, to the effect that "A husband deserts his wife if he wilfully absents himself from the society of his wife in spite of her wish". Continuing the discussion the learned President said: "Wanton refusal of one or other of the parties to a marriage to have sexual intercourse is no doubt a wrong thing. It is the intentional breach of one of the ties of marriage, but it does not produce either separation or living. apart. It may be a ground upon which the party against whom the refusal is made may decide to go away; and in the case of Synge v. Synge (1900) L. R. P. 180 and (1901) L. R. P. 317, in the Court of Appeal .... Collins, L. J., said that where upon a refusal of sexual intercourse by one of the spouses, the other had decided to go away, they were living apart by mutual consent. But reflection upon the manifold duties of the married state must, I think, convince any reasonable mind that this refusal of itself by one of the parties, while the parties remain living together and discharging the other duties of the married state, cannot be said to amount to desertion. It is not abandonment; it is not living apart. If it is a refusal of a duty it does not purport to conclude the matrimonial relationship."

In Forester v. Forester (1790) 1 Hagg. Cons. 145 Lord Stowell stated that "the Court can decree cohabitation; it cannot decree sexual intercourse".

In Jackson v. Jackson Hill, J., in his judgment at p. 26 says: "There may be: desertion though the husband continues to live under the same roof with the wife, but in such case the facts must be very strong. They must show that the husband really causes the wife to live apart against her will-not only sleep apart, but to live apart. Refusal to occupy the same bed and refusal to have sexual intercourse may be a fact which, taken with other facts, has weight in considering whether the husband has really caused the wife to live apart. I say may be, because even so, in my view, the refusal of sexual intercourse would have to be considered in connexion with the ages of the parties, the state of their health, the number of children they already had, and a number of other circumstances". The learned Judge then referred to the unreported case of Diver v. Diver, of which he gave the facts as follows: "It appeared that not only was he (the husband) insisting upon sleeping in a separate room, but that he never spoke to the wife, that when the wife spoke to him he never answered her, and when she asked him why he so treated her, he knocked her down".

In the present case it appears to me that the petitioner is confusing cohabitation with sexual intercourse. The authorities make it clear that sexual intercourse is not an essential ingredient of cohabitation or living together. It was held in Williams v. Williams (1864) 3 S. & T. 547 that to neglect opportunities of consorting with a wife is not necessarily to desert her.

Thompson v. Thompson 164 E. R. 706; Kay v. Kay (1904) p. 382 and G. v. G. (1930) L. R. P. 72 are authorities for saying that circumstances, such as domestic service or business duties, may separate husband and wife, and there may yet be an existing state of cohabitation. See also the remarks of Langton, J., in Germany v. Germany (1938) L. R. P. 202 at p. 207.

In view of the facts of this particular case there was no desertion by the respondent of the petitioner in 1938 when the latter went to Tanganyika on business. In view of this finding it appears that the cases referred to by the advocate for the petitioner do not apply.

In Spence v. Spence (1939) 1 A. E. R. 52 it was held that the separation did not amount to separation by either side, since the departure of the wife from the matrimonial home was with the complete consent and approval of the husband. The judgment of Langton, J., in this case is most instructive and amusing.

The facts in Smith v. Smith (1940) L. R. P. 49 are very different to the present case, while in Slawson v. Slawson Sol. Jo. and Mummery v. Mummery (1940) 2 A. E. R. 424 desertion was in fact existing. $\frac{1}{2}$

The present case is very much on all fours with that of Littlewood v. Littlewood, Weekly Notes 31-10-42 p. 188, where Pilcher, J., said that no doubt the wife was an extremely disagreeable companion, but in his view it was still one household. The strongest case in which the facts justified a finding of desertion when the parties were still living under the same roof was *Smith v. Smith (supra.)* but no Court has ever yet taken the view that one party to a marriage contract was entitled to relief on the ground of desertion merely because the other party absented himself or herself during long working hours from the conjugal home, provided that the home continued to be one home. To grant a decree on the facts of this case would be going a great deal further than any Court has gone. $\cdot$ : The petition is dismissed.

$\cdot \in$ *Note.*—Since this judgment was delivered the question of desertion has come up again in the case of Wilkes v. Wilkes—(Law Journal 21-11-42 p. 370).