Baxter v Baxter
| Jurisdiction | UK Non-devolved |
| Judge | Lord Chancellor,Lord Wright,Lord Simonds |
| Judgment Date | 17 December 1947 |
| Judgment citation (vLex) | [1947] UKHL J1217-2 |
| Date | 17 December 1947 |
| Court | House of Lords |
[1947] UKHL J1217-2
Lord Chancellor
Lord Wright
Lord Merriman
Lord Simonds
Lord Normand
House of Lords
My Lords,
This is an appeal from a judgment of the Court of Appeal dismissing an appeal of the Appellant husband from an order of Hodson J. dismissing his petition for a decree of nullity founded upon the allegation that the Respondent wife had wilfully refused to consummate the marriage within the meaning of the Matrimonial Causes Act, 1937, Section 7 (1) ( a).
The difficulties of this case have not been diminished by the fact that it was an undefended suit; but, like the Court of Appeal, this House has had the advantage of hearing counsel for the King's Proctor. This ensured that any argument that could have been urged on behalf of the wife was before your Lordships.
The material facts are that the parties went through a ceremony of marriage on the 10th January, 1934, that they lived together at Hayes from that date until the husband left the wife in 1944. According to the husband's evidence the marriage was unhappy because of the determination of the wife not to have a child, a determination in which, he said, she was supported by her family. Of this fact he gave some striking evidence. The husband said that the wife would never allow him to have intercourse unless he took the precaution of using a sheath, that he would have been unable to have sexual intercourse at all if he had refused to do so, but that he was constantly pleading with her throughout the ten years they were together to have intercourse in the natural way. This evidence was to some extent corroborated by the husband of the wife's sister who proved that the wife had said to him that she would not have anything to do with the husband unless he took precautions, that she did not want any children and that her husband had to use a sheath. Both the trial judge and the Court of Appeal accepted the evidence as to what occurred while rejecting the inference that the husband was compelled to adopt the course described.
Section 7 (1) ( a) of the Matrimonial Causes Act, 1937, reads as follows:
"In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall be voidable on the ground ( a) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; …".
From this it follows that there are two distinct issues, first, whether the marriage has been consummated at all, and secondly, if not, whether that is owing to the wilful refusal of the Respondent spouse.
Both Courts below regarded themselves, as indeed they were, as bound by the decision of the Court of Appeal in Cowen v. Cowen, 1946, Probate, p. 36, to hold that this marriage had not been consummated and the second of the issues mentioned above alone remained for consideration. Hodson J. held that by wearing a sheath and continuing to do so against his better judgment the husband was the author of his own wrong. The Court of Appeal held that the true conclusion from all the facts was that in order to obtain the desired gratification the husband acquiesced, though no doubt reluctantly, in the conditions imposed by his wife and did so for ten years; that a reluctant acquiescence was nevertheless an acquiescence and that Hodson J. was right in his decision. They added "A Petitioner who only succeeds in proving a refusal in which he has acquiesced does not, in our opinion, establish that non-consummation is due to a wilful refusal by the Respondent within the meaning of the statute".
If your Lordships were able to accept this view it might be unnecessary to go further and to enquire whether Cowen v. Cowen, supra, was rightly decided. But in my opinion, in which I understand that your Lordships unanimously concur, the evidence does not justify the conclusion to which the learned Judge and the Court of Appeal have come. I set out two questions put by the Judge himself to the husband and his answers:
Q. Why did you not refuse to use a sheath?
A. Because then I should not have been able to cohabit with her.
Q. But you did not try?
A. I have asked her ever so many times, and for years I have pleaded with her.
I find it impossible to conclude from such evidence as this that the husband acquiesced in the wife's refusal to have normal intercourse so as to debar himself from the relief (if any) which such refusal would give him. Adopting an expression sometimes used in this branch of the law I might say that the husband has shown no such lack of sincerity as to disentitle him from obtaining any remedy to which he is otherwise lawfully entitled. Nor (to use the words of Lord Selborne in G. v. M., 10 A.C. 171 at 186) can it be said of him that he acquiesced in a course of conduct with "knowledge of everything which it is material to know". In this connection it must be remembered that, while the marriage took place on the 10th January, 1934, the Matrimonial Causes Act, 1937, did not come into force until the 1st January, 1938, so that for almost four years the law in any view of it provided him with no remedy for that of which he now complains. Moreover the judgment of the Court of Appeal in Cowen v. Cowen was not given until the 16th July, 1945, and it may fairly be inferred that he did not foresee that the Court would decide that in such a case as his the marriage had not been consummated. By that time he had already parted from his wife.
In these circumstances I find myself unable to agree with the Courts below in holding that anything in the husband's conduct prevented the wife's refusal to have normal intercourse from being the cause of the assumed non-consummation. Nor, on the assumption that the husband has established a ground for relief, can I hold that anything in his conduct has disentitled him, in the circumstances, from obtaining relief.
On this view of the matter your Lordships are obliged to consider whether Cowen v. Cowen, supra, was rightly decided. If that decision was right it would be impossible to distinguish this case from it.
The facts in Cowen v. Cowen are sufficiently summarised in the judgment of the Court of Appeal at page 38 as follows:
"The parties were married in 1932. They were both young. At first they lived in Persia, and the danger of childbearing for a European woman in Persia was then so grave that they agreed to take steps to prevent conception while they were in that country. The husband habitually used a rubber sheath when intercourse took place. In May, 1937, the spouses came to England on leave and the wife pressed her husband to abandon this precaution against conception, in order that she might have a child. He refused. From the end of 1937 until the Spring of 1939 they were in Persia, and although conditions had improved there and she was willing to have a child, her husband persisted in his habitual practice. In the Spring of 1939 the wife came to England, and wrote a letter to her husband in which she begged him, to use her own words, to live 'a normal married life' with her. He ignored this request. She returned to Persia, and the only change in their relations which took place was that, after the outbreak of war, and owing to the difficulty of obtaining such articles as the husband had previously used, he had recourse to the practice of withdrawal before emission, or coitus interruptus. This occurred on but a few occasions. Relations between the spouses became strained. The husband's reiterated refusal to give his wife an opportunity of becoming a mother led to disputes. Finally, in 1944, she left him and began the present proceedings".
Before examining that case I wish to make an observation upon one practice referred to in this summary of facts, namely, that of withdrawal before emission, or coitus interruptus. This practice, as distinct from artificial methods of contraception, does not arise in the case before the House and I prefer to express no opinion about it. I desire also to reserve the question as to what bearing the employment of force or fraud may have on the issue of consummation.
Leaving aside the question of withdrawal it will be seen that the spouses from the date of the marriage in 1932 to 1939 invariably used a rubber sheath. This was not only so during the early years of the marriage, when the practice was adopted by mutual consent because of the dangers to a European woman of childbirth in Persia, but during a joint visit to England in 1937 and on return to Persia when the conditions in that country had improved. During these two latter periods the wife, like the husband in the case before the House, was continually pressing the husband to abandon this precaution in order that she might have a child. In other words, from 1937 onwards the wife was ready and willing, but the husband was not, to have sexual intercourse in the natural way.
The main ground of the decision was as follows: after saying that the Matrimonial Causes Act, 1937, contains no definition of the word "consummate" and that Parliament no doubt intended it to be understood in the sense in which it had hitherto been employed by judges dealing with matrimonial causes in this country and pointing out that before the Act the question whether a marriage had been consummated usually arose in connection with the particular question whether one of the parties was lacking in capacity to consummate, the judgment proceeds, "Thus, it is no doubt true to say that normally the question was whether penetration by the male organ could be, and had been, effected. Before 1937, the question whether the emission of semen into the body of the female was necessary in order to constitute such complete penetration as would amount to a consummation of the marriage could only arise if,...
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