025-NLR-NLR-V-16-APPUHAMY-v.-JULIHAMMY-et-al.pdf
( 88 )
. Present: Lascelles C.J. and Wood Benton J.
APPUHAMY v. JUUHAMY et oi.
303—D. C. ChOaw, 4,530.
Divorce—Action by husband against wife on ground qf adultery anddesertion—Husband communicating venereal disease to wife—OrueUy—Divorce not granted.
The plaintiff sued his Wife,, the first defendant, for divorce onthe grounds of malicious desertion and adultery with seconddefendant. The Supreme Court refused to grant a decree fordivorce though the adultery was proved, as the'plaintiff was guiltyof cruelty to his wife, inasmuch as he had communicated venerealdisease to her.
Communication of venereal disease by a husband to his wife, ifwilful, constitutes legal cruelty.
Where a husband did not come forward and assert his ignoranceof his condition the Court would hold the charge of wilful infectionestablished, the principle being that the husband's health waspresumably within his own knowledge.
'J'HE facts are fully set out in the judgment.
Bawa, K.C.t for the plaintiff, appellant.—The Judge has foundthat the respondent was guilty of adultery and desertion. Theplaintiff was entitled to a decree for divorce on that finding.There is absolutely no evidence to support the finding of theJudge that the plaintiff was guilty of adultery; the fact that theplaintiff communicated venereal disease to the respondent is noproof of the fact that the plaintiff had committed adultery afterhis marriage; the plaintiff might have contracted the diseasebefore the marriage.
Communication of venereal disease by the husband tp* his wifeis not cruelty unless it was wilful. See Dixon on Divorce, 3rded.t p. 154; Collett v. Collett;1 Brown v. Brown.2 Even if thehusband was* guilty of cruelty, the wife had condoled the crueltyby continuing to live together in spite of the disease.
No issue as to cruelty was raised at the trial.
Chitty, for the defendant, respondent.—There is sufficient-evidence to prove tha^ the communication of the disease was-wilful. The Court will infer from the facts of communication ofthe disease that the communication was wilful. The evidence ofthe husband was not accepted by the Court; in the absence of anexplanation by the husband, the Court will presume that thecommunication was wilful. Counsel argued on the facts.
Cur. adv. vvlt.
»2 Curb. 67B.2 (2806) L. B. 2 P. 4 D. 46„
1918*
1M&
Appuhcmy
JnUhamy
( 84 )
December 17, 1912. Lascelles C.J.—
This is an appeal from a decision of the District Judge of Chilawdismissing the plaintiff's claim for a dissolution of his marriage withthe first defendant-respondent on the ground of her desertion andadultery. The learned District Judge has found that the firstdefendant was guilty of wilful desertion and adultery, but in theexercise of the discretion vested in the Court by section 602 of theCivil Procedure Code has dismissed the claim for divorce oh theground that the plaintiff himself was guilty of adultery. Themental process by which the learned District Judge arrives at theconclusion that the plaintiff has been guilty of adultery is curious.
It was admitted that both the plaintiff and the first defendantwere infected with syphilis. The plaintiff swore that he contractedthe disease from his wife two or three days after their marriage.The defendant, on the other hand, deposed that she was infected byher husband, and that the disease appeared two months after themarriage, and that her husband subsequently re-infected her. Thelearned District Judge accepts the defendant’s version, which Ithink is the more probable, and concludes that the plaintiff musthave committed adultery.
But it does not follow from the fact that the husband was sufferingfrom this disorder at or shqrtly after his marriage; that he wasguilty of adultery during the marriage. The facts are quite con-sistent with the plaintiff having contracted the disease beforemarriage.
But accepting the finding of the District Judge as to the firstdefendant having been infected by the plaintiff, the questionnaturally arises whether it is not the duty of the Court to refuse to•enter a decree in favour of the plaintiff on the ground of his crueltytowards his wife. Communication of this disease by a husbandto his wife, if wilful, constitutes legal cruelty. The question, there-fore, is whether there is sufficient evidence that the communicationof the disease by the husband was wilful.
In Squires u. Squires 1 it was held that where the husband did notcome forward and assert his ignorance of his condition the Courtwould hold the charge of wilful infection established, the principle.being that the husband’s health was presumably within his ownknowledge. In the present case the husband has come forward with.an explanation of his condition, which the Court has entirely dis-credited. So far from asserting that he unwillingly communicatedthe disease to his wife, he charges his wife, as the District Courtheld falsely, with infecting him. There is also the evidence of hiswife, which I understand was accepted by the District Court, thather husband re-infected her after she had recovered from theoriginal infection.
189L.J. 178.
IMS
( 86 )
On the whole, I think that communication of venereal diseaseamounting to legal cruelty has been proved, and that a decreefor dissolution of marriage ought not to be granted.
For the above reasons I would dismiss the appeal with costs.
Wood Benton J.—
The plaintiff-appellant in this action sued his wife, the firstdefendant-respondent, for divorce on the grounds of maliciousdesertion and of adultery with the second defendant, who is not arespondent to the appeal. The respondent in her answer denied thedesertion and the adultery, and pleaded that shortly after hermarriage the appellant had communicated to her venereal disease,which made it impossible for her to live with him as his wife. Thesecond defendant denied the adultery. The learned District Judgeheld on the evidence that both the desertion and the adultery hadbeen proved, but refused to grant the appellant the divorce whichhe claimed, on the ground that he had himself committed adulteryafter the marriage—a fact evidenced by his having communicatedvenereal disease to his wife shortly after the marriage had takenplace. He accordingly dismissed the appellant’s action with costsin favour of the respondent, but left the second defendant to payhis own costs.
In the argument before us on . ppeal the findings of the DistrictJudge as to the desertion of the appellant by the respondent and asto the adultery with the second defendant were not seriouslydisputed. The points mainly pressed upon us were that the com-mission of adultery by the appellant after his marriage with therespondent had not been established, and that the communicationby him to his wife of venereal disease would not amount to crueltyunless it was affirmatively shown to have been wilful. That is aproposition of law which admits of no dispute. As an authorityin support of it I may refer to the case of Brown v. Brown.1 Theonly questions that give rise to any difficulty in the present case arequestions of fact. The appellant’s evidence was to the effect that,so far from having communicated venereal disease to his wife, hehad been himself infected by her. He stated that he bad receivedthe infection two or three days after the marriage, and that his wifehad then admitted to him that she had been intir&ate previous to themarriage with the second defendant. Her proved intimacy withthe second defendant subsequently to the marriage, of course, lentsome colour to this suggestion, which the second defendant did notseek to disprove by submitting himself to medical examination andplacing the results of that examination before the Court at the trial.In spite of these circumstances, however, of which he took full'account, the learned District Judge disbelieved the appellant’sevidence in thin matter, and I see no reason to think that he wasi (1865) L. B. IP. A D. 46.
IiASCBLT.es
G.J.
Appuhamgv. Julihomg
( 86 )
wrong in doing so. The evidence of the respondent showed that,notwithstanding * the fact that he was suffering from venerealdisease, the appellant continued to live with the respondent as hiewife. I am not disposed to believe that a man in the appellant'sposition, who had been infected by his wife with venereal disease,would have continued to expose himself, by further cohabitationwith her, to the risk of re-infection. Disbelieving, as he does, theappellant’s explanation of how he came to contract venereal disease,the District Judge draws the inference that he had himself beenguilty of adultery during the subsistence of the marriage, and wastherefore, if for no other reason, disentitled to a divorce. In comingto this conclusion, the District Judge relies on the statement of therespondent that the disease first attacked her two months after themarriage. The appellant's statement, however,, is that he becameill two or three days after the marriage. There is no medicalevidence on either side showing the stage that the venereal diseasehad reached at the time of the alleged infection, and in view of theconflict between the evidence of the respondent and that of theappellant on the point, I do not think that the facts are sufficientlystrong to warrant the conclusion of the District Judge that theappellant had become infected alter his marriage with the respond-ent. There remains, however, the question whether there is notsufficient evidence on the record to support the judgment oh theground of cruelty. The appellant’s counsel contended that no issue*on this point had been raised at the trial. There is, however,evidence in regard to it on the record, and the Court is, I think,'entitled of its own motion' under the proviso to section 602 of theCivil Procedure Code, to take account of all discretionary bars ofthis character, whether they are expressly put in issue between theparties or. not. The communication of venereal disease was reliedupon by the respondent in her answer as a defence to the charge ofdesertion, and that being so, it came, in my opinion, properly underthe cognizance of the Court as evidence in support of a charge ofcruelty. There is, I think, sufficient material here to enable us to'support the finding of the learned District Judge on this ground.It is pointed out in the case of Brown v. Brown1 that, while the_communication of venereal disease to a wife by her husband is notcruelty unless it is shown to have been wilful, wilfulness may bepresumed from the surrounding circumstances, from the condition,of the husband, and from the probabilities of the case after suchexplanation as he may offer, and that primA facie the husband’s*state of health is presumed to be within his own knowledge. In thepresent case the evidence shows that the appellant was aware that,he had contracted venereal disease. He gave a false explanation asto how he came by it. He knew that his wife was suffering from italso, and, according to her evidence, he had re-infected her by* CWG5) L. B. 1 P. S D. 46.
IMS.
(87)
repeated acts of intercourse while he was still uncured. In Brown■v. Brown 1 the Court treated re-infection as evidence of wilfulness.In the present case the appellant did.not satisfactorily explain hisconduct. His story was that, although his wife continued- to livewith him in the house, he had never had intercourse with her afterIia had been cured of the disease which he said she had imparted tohim. I see no greater reason to accept the appellant’s evidence onthat point than with regard to the respondent’s alleged admission ofante-nuptial incontinence, on which he has been expressly disbelievedby the learned District Judge. It was urged on the appellant’sbehalf that in any case the respondent had condoned his cruelty bycontinuing to live with him as his wife after her first infection.While I think it, however, almost inconceivable that if the appellanthad been infected by the respondent he would have continuedcohabitation with her, women in the position of the respondent aresubject to a great extent to their husband’s influence and control,and it is quite possible that she went on living with him without anyvery clear perception of what she was doing.
The case is a squalid one, and neither side is entitled to muchsympathy. But, on the whole, I t|ink that the decision of the learn-ed District Judge is right in the result, and should be affirmed Withcosts.
WoodBbktqn J.
Appuhatng*. Julihamy
Appeal dismissed.