Delph v Delph

• Jurisdiction: Caribbean States
• Judge: Archer, C.J.,Wylie, J.A.,Lewis, J.A.
• Judgment Date: 23 July 1959
• Court: Federal Supreme Court (West Indies)
• Docket Number: Civil Appeal No. 5 of 1959
• Date: 23 July 1959

Federal Supreme Court

Archer, C.J. (Ag.); Wylie, J.A.; Lewis, J.A.

Civil Appeal No. 5 of 1959

Delph

and

Delph

Appearances:

Mr. J.A. King instructed by Mr. H.C.B. Humphrys for the petitioner

Family law - Appeal from judgment dismissing an undefended petition for divorce — The appellant's affidavit evidence stated that she had been treated with cruelty and had suffered malicious desertion — Trial judge held that the abuse amounted to no more than the mere wear and tear of marriage and was insufficient to warrant closer examination — The appellant's case had prima facie evidence to allow for further investigation — Appeal allowed — New trial ordered.

JUDGMENT OF THE COURT:

1 This is an appeal from a judgment of the Supreme Court dismissing an undefended petition for divorce. The parties were married on the 3rd February, 1950, and there is one child of the marriage. The petition which is dated the 26th Augusts 1958, alleges cruelty and desertion. Paragraphs 7, 8, 9, 10, 11 and 12 read as follows:-

• “7. That the respondent has frequently used violent and obscene language to the petitioner. The respondent failed to give the petitioner an adequate housekeeping allowance, and when she bought certain items of food for the said child of the marriage would accuse her of extravagance and quarrel with her.

• 8. In or about the month of October, 1953, the respondent during a quarrel shouted at and used abusive language to the petitioner then struck her on both sides of the face with his open hand, seized her by the shoulders and shook her against a wardrobe thereby bruising her shoulders and finally locked her in the bedroom for about three-quarters of an hour despite the demand to be let out.

• 9. The respondent made persistent sexual demands of the petitioner which he knew the petitioner regarded as excessive. On several occasions when the petitioner refused the respondent intercourse he forced her to have intercourse with him, seizing her by the throat and squeezing, leaving bruises which caused the petitioner to have to wear a scarf at work.

• 10. In April, 1954, the petitioner awoke one night to find the respondent lying on top of her with hands round her throat demanding intercourse. The petitioner resisted and screamed loudly, awakening the child which also commenced to cry and scream. Despite this the respondent forced the petitioner to have intercourse with him.

• 11. That by reason of the respondent's conduct as aforesaid the petitioner's health was affected, she suffered from chronic headaches, and in 1953 she consulted a physician and was referred to the Maida Vale Hospital for Nervous Diseases, but she had to stop attending at the said Hospital on the respondent's insistence.

• 12. After the incidents described in paragraphs 9 and 10 the petitioner became terrified of the respondent, life with him became impossible, and in September, 1954, she left him and went to live on her own. Since that date the respondent has failed and neglected to maintain the petitioner and the said child”.

  The respondent who was served with a copy of the petition on the 23rd October, 1958, has neither entered an appearance nor filed an answer. On the 12th November, 1958, the solicitor for the Petitioner took out a summons asking for one of the following orders, namely –

  • (a) that the statements contained in the petitioner's affidavit filed in support of the petition be accepted as sufficient evidence;

  • (b) that a further affidavit be filed in support of the petition;

  • (c) that the petitioner be examined in the United Kingdom on oath before a commissioner or any such person as the court may deem fit.

2 In the affidavit in support of the summons the petitioner's solicitor set out that the petitioner resides in the Republic of France and that it would be very inconvenient and expensive for her to visit British Guiana in order to give evidence at the hearing of her petition. On the 15th December, 1958, Stoby, J. made an order dispensing with the oral evidence of the petitioner and allowing her affidavit to be read as her evidence upon the trial of her petition provided that the petition was undefended. The affidavit was the usual affidavit in verification of the facts alleged in the petition.

3 The petition was heard by Bollers, Acting J. on the 30th December, 1958. He found that the grounds on which dissolution of marriage was sought had not been proved and dismissed the petition. He expressed himself in the following language.

“Assuming that all this evidence was true in my view the facts did not come within the definition of cruelty as laid down by the House of Lords in Russell v. Russell [1897] A.C. 395. There was no convincing evidence that this conduct was of such a character as to have caused danger to the life of the petitioner to her limb or health bodily or mental or as to give rise to a reasonable apprehension of such danger. If there was in fact danger to the petitioner's life it would have been a simple matter for her to have obtained an affidavit from the medical officer at the hospital to this effect, and stating that when he saw her she was in poor mental health which in his opinion was brought about by the allegations she was then making in regard to the conduct of her husband. In my view this evidence of the respondent amounted to no more than mere wear and tear of marriage as dealt with by the legal authorities.”

4 In another passage he said:-

“It is to be noted that the acts of cruelty alleged by the petitioner took place in October 1953 and April 1954. She did not leave the matrimonial home and go to live on her oven until September 1954. On the date that she left the home no act of cruelty is alleged. It follows therefore that the acts of cruelty alleged if indeed recognized by the law as such were condoned by her. The burden of disproving the condonation falls clearly on her, facts having emerged which suggest it”.

5 He then quoted a portion of the judgment of Lord Merriman in Holborn v. Holborn (1947) W.N. 70 and observed:-

“Here again the evidence of the petitioner was not assisted by medical evidence which would have confirmed her statement that her health suffered as a result of persistent sexual intercourse”.

6 He concluded this part of his judgment thus:-

“The petitioner's evidence on the allegation of cruelty was therefore not grave and weighty and did not show ‘an absolute’ impossibility that the duties of married life can be discharged per Lord Stowell in Evans v. Evans 1790, 1 Hagg. Con. 35”.

7 He then dealt with the issue of desertion and, after referring to the judgment of Lord Greene, M.R. in Buchler v. Buchler [1947] 1 All E.R. 319 decided that the petitioner had not satisfied him that the conduct alleged against the respondent had driven her from the matrimonial home or that he had had the intention of bringing the matrimonial consortium to an end. In the final portion of his judgment the...