Benton v Benton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE SELLERS |
| Judgment Date | 23 October 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1023-3 |
| Date | 23 October 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J1023-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Norris And
Lord Justice Sellers.
Mr. Harold Brown, Q.C. and Mr H.B. Crant (instructed by Meesrs. theodcre Goddard & Co., Agents for Messrs. Young Coles & Langdon, Hastings) appeared on behalf of the Appellant (Wife, Respondent).
Mr, G.H. Crispin and Mr. F. Coningsby (instructed by Messrs Culrcs a & Co.) appeared on behalf of the Respondent (Husband, Petitioner).
This is an appeal from a Judgment of Mr. Commiesioner Orasebrook, dated 3rd April, 1957, in which he prcnounced a decree of divorce in favour of a husband petitioner, based upon the cruelty of the wife. The wife had filed an Answer in which she defended herself against the charges of cruelty and made crose-charges against her husband, to which I shall Yefer, and also said that any of fence which she had committed had been condoned. The husband put in a Reply to the Answer to which also I shall have to refer. In this court the position is this: the wife, through her Counsel, has accepted the findings of cruelty made against her – not that she willingly accepted those findings but because she recognised that the Commissioner, who had heard her case, was entitled to come to the conclusion that he did upon the veracity of herself and her husband and other witnesses who were called and then to find, upon the facts proved, that there was cruelty. The appeal has been directed to the question, first of all, whether the cruelty, if any, on her part was condoned, and the subsidiary question whether, if it was condoned, it was revived by anything she did sfterwords so as to destroy the effect of the condonation.
In order to deal with the first iesue, that of condonation, It is unnecessary for me to go beyond the Petition itself, the Answer (in so far as the Answer refemed to condonation), and the Reply (again in so far as it referred to condonation). The parties ware married in 1944, and they had two children, both boys, one born in January, 1945, and the other born in June, 1946, The parties lived together until 1956. It was in January, 1956, that the wife was finally left by her husband. On or about the 28th January he left the home where he had lived with the wife, and they have never had a home together since. His case was (and this case was accepted by the Coounlssloner) that his wife had been throughout the marriage a very heavy consumer of aicebol, and that latterly drunksnness had become habitual so that she became really an addict to slcchol, and that, while in that condition, she had behaved towards him in an aggressive, violent and disgusting manner so that his health bad been injured, He called evidence to the effect that he had been on the verge of a nervous breakdown, and he said that he had lost a great deal of weight, which he attributed to his wifes's conduct. He succeeded on that. To be fair to the husband, It is not a case in which he has said that drink was abhorrent to him. He has admitted that he was himself a man who consumed considerable quantities of liquor – gin, so far as the evidenoe goes - in his wife's presence and as a preliminary to sexual intercourse. He refers in his letters to their enjoyment of drink together; and after the parting, when he met his wife, he drank with her, although she herself was not drinking slcohol.
I have mentioned those matters because I think they may have some slight bearing on the issue of condonation – which is the relevant issue which we have to determine; because admittedly, after the parting, the husband, principally in order to see his children, visited his wife frequently and spent a great deal of time in her company – not all of which, by any means, was spent with the children; he spent time with her alone. On one occasion he was alone with her in a motor car in a lane in the country for some time, and on another occasion, in January of this year, he was alone with her, without the children, in the place in which he was then living in London. He said that he had taken her back there in order to refute her remarks made to him that she was living in squalor while he was living in luxury. He said "Come back and see where I do live". However, they were together some time, and he saw her to the station eventually, I am dealing with this case on the basis of the husband's evidence because that is the evidence that was accepted.
After the Petition (which was dated l6tn April, 1956) had been put in, the wife 'put in her Answer, and in her Answer she said that the eruelty, if any, had been condoned. The Answer (which was dated 8th June) includes particulars of occasions when (according to her) she and her husband had sexual intercourse together, not only right up to the 23rd January, 1956, when they were last living together – thati is, five days before the husband left home and the day on which the wife left to go into a private Home – but also on occasions after the separation, on the 8th April, 1956, in the motor oar in the lane; in April, 1956, at a hotel; and on four occasions in a caravan where she was living in May; and by a subsequent amendment she said that Intercourse also took place at a house, "Penshuret", on one or two occasione is November, on another occasion in January, 1957, and finally (at the address in London to which I have referred) on the 22nd January, 1957.
So far as sexual intercourse was concerned, her evidence was rejected and that of the husband accepted, hut it did amount to this, that, on his own case, he did have sexual intercourse with his wife on the 27th May, 1956, in the wife's care van. In his Reply he deals specifically with this occasion, on which, he agreed, there had been intercourse, and he admits that he had visited his wife on the occasions referred to in the earlier of those Particulars, for the purpose of seeing his children. He said that on those visits his wife, when slone with aim, fondled and caressed him, undressed in front of him, and made suggestions so as to get him to have sexual intercourse with her. Then he goes on to make this admission, which I will read as he states its "The Petitioner admits that on one occasion in the Rospondent's caravan at Caravan Park Field, Langton, when under the influence of a drug largaotil he had sexual intercourse with the Respondent but will say that this was as a result of the Respondent's said conduct and the influence of the said drug and was not, nor as the Respondent well knew, was it intended to be, a condonation of the Respondent's said cruelty".
That is how the Reply stood as it was originally drawn. Particulars were given of that as follows. "The drug largctil had been medically prescribed for the Petitioner to be taken in doses of two tablets three times a day at 4-hourly intervals. Under persuasion by the Respondent shortly bofore being seduced by her on the occasion referred to he had taken five tablets in one dose, but does not know the total drug content thereby involved. Evidence will be given that the effect of a large dosage of largaotll is to produce a sense of diminished responsibility comparable to a drunken condition".
It Is to be observed, therefore, that in his pleading he does not allege (as I understand it) that the act of intercourse which he had with his wife wee not a voluntary feet; and his comparison with drunkenness is remarkable when one reaeahers that the oharges that he made against his wife were, although they both drastic, that she drank so much that she behaved in a way of which he was entitled to complain as being oruelty to him, he does not say that because she was drunk she was not responsible and therefore there is no ground for relief. Similarly, he says with regard to his condition that it was like that of a drunken man; and that was the highest that his evidence upon this matter can be put. He was cross-examined closely about the occasion when he admittedly had intercourse with his wife and he said quite clearly that he knew what he was doing. He described in detail the events of that day - how his wife had undressed before him so that he knew she was trying to get him to have relations with her as a husband with a wife; and he said that be remembered protesting at one stage by saying "Don't be silly; of course we can't". The act was completed, and he describes in detail exactly what took place and the steps that he took to avoid the risk of conception, and, further, what happened after that - how long he remained in the caravan with her, dosing for hours, until he finally left. He had said in his earlier evidence that he did not really appreciate what he was doing; but, coupled with those answers in cross-examination, the effect of his evidence – not in any way treating him as a man who was not to be relied upon as truthful – is that he knew perfectly well what he was doing and that this act of intercourse between himself and his wife was a voluntary act.
He sought to support the argument that really this was an involuntary act by calling Dr. Larkln, the doctor who had prescribed this drug for him. The Commissioner referred to the doctor's evidence in connection with the injury to health of which the husband complained but did not refer to it specifically in connection with this drug, and rejected the evidence of the doctor called by the wife which dealt with the effects of this drug. But I take it that the Commissioner accepted the evidence of Dr. Larkin, which was to the effect that this drug, although described as a "trenquilliser", was one which, taken in large doses, would have, and be expected to have, an effect (in a time which I think is uncertain) comparable with the effects of drunkennesft in the sense, I suppose, of removing the emotional inhibitions which people of normal...
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