B. (L.) v B. (R)

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE WILLMER,LORD JUSTICE DAVIES,LORD JUSTICE SALMON
Judgment Date12 July 1965
Judgment citation (vLex)[1965] EWCA Civ J0712-2
Date12 July 1965
Docket Number1964. (D). No. 413.

[1965] EWCA Civ J0712-2

In The Supreme Court of Judicature

Court of Appeal

Revised

Appeal from Order of Judge Elder-Jones (Special Commissioner) at Gloucester dated 27th January 1965.

Before:

Lord Justice Willmer

Lord Justice Davies and

Lord Justice Salmon

1964. (D). No. 413.
Between
Lilian Patricia Bishop
Petitioner
and
Richard William Bishop
Respondent

Mr LAWRENCE J. VERNEY (instructed by Messrs Wellington & Clifford, Gloucester) appeared on behalf of the Appellant (Petitioner).

LORD JUSTICE WILLMER
1

I will ask Lord Justice Davles to deliver the first judgment.

LORD JUSTICE DAVIES
2

This is a petitioning wife's appeal from a decision of His Honour Judge Elder-Jones, sitting as special commissioner in divorce, at Gloucester on the 27th January last. The wife's petition was based on cruelty, and the learned commissioner, after obviously a full and careful argument from learned counsel who appeared for the wife on that occasion, MrDraycott, came to the conclusion that the wife had failed to make out her case. From that decision she now appeals to this court.

3

The crelty aggeged in the present case is of a somewhat unusual type. The material allegation in her petition is paragraph 7. That reads: "That from shortly after the honeymoon the respondent showed little or no interest in sexual intercourse. Intercourse occurred only at irregular intervals, months apart. The respondent showed no interest in or affection for the petitioner and did not respond to her overtures. As time went on the petitioner became nervous, tense and at times hysterical. It was apparent to the respondent that his conduct as aforesaid was adversely affecting the petitioner's health, but he persisted in it despite warnings from the petitioner that she could not go on in this way. On the 6th September 1964, by reason of the matters complained of, the petitioner left the matrimonial homo and has ever since lived separate and apart from the respondent". That is the whole of the allegation of cruelty. There is no suggestion of violence or unkind words or, save in this one respect, unkind conduct of any kind.

4

The history of the marriage can be stated very shortly. The parties were married in April 1960, the husband then being twenty-seven and the wife twenty years of ago. I will come to deal with the sexual matters later. In August of 1962, after this unsatisfactory sexual life, the wife met a man with whom she very quickly committed adultery. So far as one can see from the discretion statement, it was only one act of adultery, but one does not know for certain. In her discretion statement, the wife says: "I told respondent of this adultery and told him at the time that it would never have occurred but for his behaviour as set out in paragraph 7 of my said petition. The respondent forgave mo, and intercourse occurred between us thereafter, but on very few occasions". So plainly that adultery was condoned.

5

In April of 1963 the wife left the husband again for a period. At the end of that period, they had a discussion, and her evidence about that discussion was this: "He said he realised that he was at fault and had been wrong. He promised it would be all right I went back. I did go back. (Q) When you went back at first was there any change? (A) Yes. For the first couple ofweeks everything was normal as between a married couple, but after that he went back to what he was before". The wife said that this conduct on the part of the husband, this abstinence from or infrequency of sexual intercourse, was having a deleterious effect on her health. The only evidence about that, apart from her own evidence, which the learned commissioner accepted, was an affidavit from a Dr Sibbald, whom she consulted in the month of October 1963. In his affidavit he said: "She was then obviously in a state of extreme nervous tension and appeared distressed and emotionally upset. I referred her to the Bristol Royal Infirmary for psychiatric treatment. She history of her physical relationship with her husband, and I have seen and read a copy of her petition. If the allegations in her petition and her complaints to me are true then I would expect such conduct to have an adverse effect upon her health consistent with her condition when I saw her in October 1963"

6

On the 8th September 1964, as appears from the paragraph in the petition which I have already read, the wife left the matrimonial home and has not since then lived with the husband.

7

This is unquestionably, as the learned commissioner said, a very tragic and very sad case. It is not, I think, necessary to go into all the details of the wife's evidence about sexual matters. What it comes to is this. During the honeymoon the husband had intercourse with her on a number of occasions, but not frequently. After that, intercourse was infrequent; it happened at intervals of weeks or months. She says that she constantly spoke to him about it, and he was indifferent. She says that as time went on, she told him that It was having a serious effect on her health, but he was indifferent to the whole business. Apparently when he did have intercourse with her, it appeared to be satisfactory to him. I will read a short passage from her evidence "When she was recalled: "He said he was not really Interested in it. He said he could not see that there was anything wrong and was not interested in discussing the problem, we had (Q) When you returned to him after six weeks, you say you had normal intercourse?(A) Yes. (Q) Did he appear to enjoy it? (A) Yes. There appeared to be nothing wrong at those times".

8

So...

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2 cases
  • Sheldon v Sheldon
    • United Kingdom
    • Court of Appeal
    • 31 d4 Março d4 1966
    ...husband aged 27 was very undersexed sad completely disinclined for sexual intercourse with his young wife, save at rare intervals, see B(L) v. B(R) 1965, 1 Weekly Law Reports, p. 1413. I can understand these last two cases. There are obvious reasons for taking a different view of a man's re......
  • Maureen Ann Wilkinson (Petitioner) George Albert Wilkinson (Respondent)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 d4 Julho d4 1968
    ...law. I am afraid that I cannot at all accept that submission. 11 One of the cases to which he has referred was the decision of this court in B. v, B., (1965)3 All England Law Reports, 263.That was a case where the question at issue was of a sexual nature, but I do not find it necessary to ......

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