Scott v Scott
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1959 |
| Date | 12 November 1959 |
| Docket Number | No. 7. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Migdale.
Husband and WifeDivorceDivorce for crueltyMarriage not consummated after eight yearsWife's health injured therebyWife willing and able to have sexual relationsNo evidence of whether husband capable or incapable of sexual relationsWhether husband's abstention from sexual relations deliberateWhether intention to injure a necessary element in cruelty.
In an action of divorce on the ground of cruelty, a wife pursuer gave evidence that there had been no sexual relations between her husband and herself during the eight years of their marriage. There was not any evidence that the defender was impotent; and there was not evidence that during those eight years, as the pursuer had averred, he had been capable of having sexual relations. It was established, however, that the failure of the defender to have sexual relations with the pursuer had caused injury to her health. The pursuer maintained that her health had suffered through the wilful failure of the defender to consummate the marriage, or, alternatively, assuming he was impotent, through his failure to disclose this fact.
Held that there was no cruelty where it was not proved that a husband's failure to consummate his marriage was a deliberate act on his part; and action dismissed.
Opinion, per Lord Mackintosh, that not every kind of conduct or behaviour on the part of one spouse which injures, or is likely to injure, the health of the other spouse amounts to cruelty.
M'Lachlan v. M'Lachlan, 1945 S. C. 382,distinguished and commented upon.
Kaslefsky v. KaefskyELR, [1951] P. 38 applied.
Mrs Helen Brown or Scott brought an action of divorce against her husband, Robert Walter Nicoll Scott, on the ground of cruelty. The action was undefended.
The pursuer averred, inter alia:(Cond. 4) "From an early stage in the marriage the defender evinced no affection for the pursuer. He pursued a course of indifferent conduct towards her, to the pursuer's distress. In particular, throughout the parties married life together, the defender refused to consummate the marriage. The pursuer was, as the defender well knew, very anxious to have normal marital relations with the defender and to have children of the marriage. She believed that a family would help to bind the parties together in a happy marriage, and on numerous occasions she attempted to persuade the defender of this and to persuade him to have sexual relations with her. The defender, however, said that he had no real interest in the pursuer. Although he knew that his continued refusal to consummate the marriage distressed the pursuer and was causing a serious deterioration in her health, he persisted in refusing to have marital relations. The pursuer believes and avers that the defender was all along capable of having normal marital relations. He so informed the pursuer. She further believes and avers that his refusal to consummate the marriage was in the circumstances wilful, and in reckless disregard of the consequences to the pursuer's health. The parties have never had marital relations. In the summer of 1956 relations between the parties deteriorated. The pursuer was very distressed and upset; during May and June 1956 she suffered a nervous breakdown. Shortly thereafter, in July 1956, the defender left the pursuer, stating that he had no further interest in her. The parties have not lived together since July 1956, nor have they had marital relations." (Cond. 5) "As a result of the defender's conduct as condescended on, the pursuer suffered in health. Both her physical and nervous condition deteriorated and she required frequent and increasing medical attention. She believes and avers that she could not now with safety to her life or health resume cohabitation with the defender. She accordingly seeks divorce."
On 3rd April 1959 the Lord Ordinary (Migdale), after a proof, dismissed the action.
At advising on 12th November 1959,
LORD JUSTICE-CLERK (Thomson).This is an action at the instance of a wife for divorce on the ground of her husband's cruelty. The parties were married in 1948, the pursuer being then about twenty and the defender some ten years older. They lived for some three months in the house of the pursuer's mother. Then the defender got employment in Dundee. He went to lodge there and told his wife that he could find suitable accommodation for himself, but not for her. After two years he obtained employment in Leuchars, where a house was available. The parties lived there until 1956 when they parted company.
The parties have never had marital relations. When the wife was examined by Dr Galbraith some seven or eight years after marriage her hymen was intact. The pursuer herself gave evidence that there had been no connexion. She was not very definite about their opportunities during the early part of the marriage, but once they got the house in Leuchars they occupied the same bed. Her evidence is that the husband did try but that he never succeeded in obtaining an erection. When she was asked:"Did he seem anxious to have sexual relations with you or was he not very interested?" her reply was "He was not very interested." There seems to have...
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