Bravery v Bravery

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE DENNING
Judgment Date26 Jul 1954
Judgment citation (vLex)[1954] EWCA Civ J0726-4

[1954] EWCA Civ J0726-4

In the Supreme Court of Judicature

Court of Appeal

Before:

The Master of the Rolls

(Sir Raymond Evershed)

Lord Justice Denning, and

Lord Justice Hodson

Bravery I. O.
and
Bravery L. E. G.

Counsel for the Appellant: MR EDWARD GRAYSON, instructed by Messrs James Brodle & Co.

Counsel for the Respondent: MR L.J. STRANGER-JONES, instructed by Messrs H.S.L. Polak & Co.

LORD JUSTICE DENNING
1

The Master of the Rolls and Lord Justice Hodson have prepared a joint judgment which my Lord, Lord Justice Hodson, will now read, and I will give mine afterward

2

LORD JUSTICK HODSON: This is an appeal from a decision of Mr Commissioner Bush James given on October 29th, 1953, whereby he dismissed a Petition based on cruelty.

3

The parties were married on October 25th, 1934, and there is one child, a son Leslie, who was born on the 19th December, 1936.

4

At all material times the husband was employed as a hospital porter first at the General Hospital at Croydon, and latterly at the Royal Northern Hospital, where they lived together from a time shortly before the birth of the child until the wife left the husband in September, 1951.

5

The case for the wife depends in the main on an allegation which appears in the Petition as follows: " 6. (iii) Less than eighteen months thereafter during the year 1938 the precise date thereof your Petitioner cannot remember the Respondent without consulting your petitioner who had often expressed her desire to have more children, informed your Petitioner that he had seen the Surgeon at the Royal Northern Hospital and had arranged for sterilisation which operation subsequently was performed, thereby causing your Petitioner to suffer great anguish and the commencement of the deterioration of the marriage as aforesaid."

6

The remaining allegations were summarised on her behalf in this Court as consisting of the husband's dirty habits, of his excessive interest in Indian philosophy art and music, and of his meanness in keeping her short of money.

7

The question of money disappeared from the case, and the other two matters were dealt with by the learnedCommissioner in this way: "The wife says that the husband had some unpleasant habits, that he was dirty and untidy and I think possibly there was some element of truth in what she said. But there again in English law cruelty must be a grave and weighty thing, something far removed from the ordinary ups and downs and unpleasantness which accompany married life."

8

This is, we think, clearly tantamount to finding that although the wife's evidence was not rejected on this topic, yet she had not proved anything sufficiently serious to be properly classified as an act, or acts, of cruelty on the husband's part, at any rate, taken in isolation from the rest of the case.

9

The Commissioner continued, dealing with the Indian allegations: "The wife also says that the husband was addicted to what were described as Indian associations and that he would burn incense in front of various idols that were put up in the matrimonial home, and that he became addicted to these practices to such an extent that he used to play records of Indian music at all hours of the day and night and that it distressed her. Well, I have the evidence of a neighbour who was living almost cheek by Jowel with these people and she says she never heard anything of the kind; and it also appears that some of these idols at least were purchased by the wife and put by her in the matrimonial home."

10

It appears to us from this passage that the learned Commissioner was not at all impressed with the wife's complaint on this topic.

11

After referring to the use of bad language, which was denied by the husband, and to other complaints of money shortage, to which we have referred earlier, the Commissioner added that the Petition contained a whole series of trivialities. He formed the opinion that there was discord in the household which became more exacerbatedas time went on, and which (it may be) to a certain extent affected the wife's and also the husband's health, but that sexual relations had continued until shortly before the wife left.

12

We now turn to the main allegation upon which this appeal is founded, and which, in our opinion, is the only substantial matter to be considered in view of the nature of the other allegations and the Commissioner's conclusion thereon.

13

The case sought to be made on behalf of the wife was that the husband had himself sterilised against her wishes, thereby causing a deep-seated and persistent grievance which disrupted the marriage, resulted in progressive deterioration of the relations of the parties, caused injury to her health or reasonable apprehension thereof, and culminated in the wife finding life so intolerable that she left the husband.

14

This case was not made out to the Commissioner's satisfaction. In our opinion, as we understand the judgment and the evidence, it failed for want of proof at all material points.

15

The husband did in the year 1938 submit to a sterilisation operation performed, as he said, by a surgeon (who was named) at the well-known London hospital at which he was employed. As between husband and wife for a man to submit himself to such a process without good medical reason (which is not suggested here) would no doubt, unless his wife were a consenting party, be a grave offence to her which could without difficulty be shown to be a cruel act if it were found to have injured her health or to have caused reasonable apprehension of such injury. It is also not difficult to imagine that if a husband submitted to much an operation without the wife's a consent, and if the latter desired to have children, the hurt would beprogressive to the nerves and health of the wife. But such was never the case put forward by the wife in the present proceedings. This operation, as it seems to us, took a relatively minor place among the wife's complaints both in her Petition and in her evidence. She left her husband (according to her own evidence – see page 7) because his temper got worse and worse. Although, according to her own admission, she plainly knew all about the operation before it was done, she said that she afterwards "refused to talk about it" (page 11) and never suggested that he should (as could, apparently, have later been done) have his normal function restored (page 23). According to the wife the marriage was only "fairly happy" at the start (page 2) and though it subsisted a long time, matters appear to have steadily got worse for reasons altogether disconnected with the operation.

16

Did the wife consent to the operation? As we have said, there is no doubt on the wife's evidence that she knew her husband was going to have it performed. She said that he had it done at the hospital where they were living, and that she took his clothes when he came out afterwards.

17

In cross-examination her knowledge of the matter was further investigated.

18

She said that he had told her what was going to be done.

19

The following questions and answers follow: "(Q) Did you make any attempt to stop him having it done? (A) I was so astounded and upset at his making the suggestion to have it done that I could not discuss it at that time. When first he spoke to me he just said: 'I will have to discuss it with you.' (Q) You knew the surgeon Mr B.? (A) Yes. (Q) And you knew the sister at the hospital, Sister B., I think? (A) Yes. (Q) Andthe nurse who looked after him, staff nurse O.? (A) I do not remember the other nurses name. (Q) I put it to you that you knew the surgeon and the matron and the sister and everyone concerned with the operation and that you never took any steps? (A) No. (The Commissioner): Do you agree that you could have? (A) No, because my husband always had what he wanted. (Counsel): But you did not approach any of these people and say you did not went him to have the operation, did you? (A) No."

20

The husband'rsquo;s evidence was to the effect that after the birth of Leslie the wife did not want any more children – that she was, indeed, very much afraid that she should; and, further, that, because she disliked contraceptives, he consulted a surgeon, and said to her: "It is possible I understand to have an operation, a simple thing, which will prevent our having any more children. This will be a temporary measure and a slight operation can be repeated later if we decide to change our minds." He was asked what she said to that, and he replied that she said that it was a good idea and they agreed that it was.

21

In this state of the evidence the learned Commissioner's finding is not very precise; but he said this: "Apparently after the birth of the boy Leslie the parties were not happy but they were having intercourse and using preventatives and then for some reason this man goes and has this operation performed upon himself … and I think the wife quite possibly might have objected to it."

22

"Might have objected" could be read as meaning that "she possibly did so" or "that she might have done but did not"; but, in view of the wife's own evidence, it is, in our view, quite impossible to conclude that she ever made any effective objection at all. She was living in the hospital and knew the persons concerned, surgeon and nurse, and had ample opportunity of making objection ifshe were not a consenting party. No doctor was called on either side, but we find it difficult to believe that any surgeon, a member of an honourable profession, would perform an operation of this kind on a young married man unless he was first satisfied that the wife consented.

23

We have already observed that the Commissioner's findings are not perhaps as precise as we could have wished. But we find it impossible to avoid the conclusion that he did not accept the evidence of the wife (upon whom the onus of proof lay, that the husband had had the...

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1 books & journal articles
  • Hidden Law‐Making in the Province of Medical Jurisprudence
    • United Kingdom
    • The Modern Law Review Nbr. 77-3, May 2014
    • 1 May 2014
    ...in adjudicating on ambiguities inthe law. The framing of their choices is a crucial element in their decision and6Bravery vBravery [1954] 1 WLR 1169, 1180.7 Lewis notes this being done in 1925, 1939, 1949, 1960; see especially n 5 above, 305–306.8 Lewis particularly notes this assertion by ......

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