Sheldon v Sheldon

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,Lord Justice Davies
Judgment Date31 March 1966
Judgment citation (vLex)[1966] EWCA Civ J0331-1
Date31 March 1966

[1966] EWCA Civ J0331-1

In The Supreme Court of Judicature

Court of Appeal

From His Honour Judge Carr Special Commissioner of Divorce at Worcester.


The Master of the Rolls (Lord Denning)

Lord Justice Davies and

Lord Justice Salmon

Barbara Sheldon
Petitioner Appellant
Richard Marcel Sheldon
Respondent Respondent

MR. BRUCE CAMPBELL, Q.C. and MR. R.F. SOIMAN (instructed by Messrs Robbins Olivey & Lake, Agents for Messrs Weston Fisher & Weston, Kidderminster) appeared as Counsel for the Appellant.

THE RESPONDENT did not appear.

MR. N.H. CURTIS-RALEIGH (instructed by the Treasury Solicitor) appeared for the Queen's Proctor.


On 6th July 1950 Richard Sheldon, then aged 26, married Barbara Sellers, then aged 21. For the first eight years they were reasonably happy and had sexual intercourse together in a normal way. In 1958 the husband had to go on his work to Scotland for about a year. He came home occasionally for weekends. But he never had sexual intercourse with his wife on these visits. He returned from Scotland after a year and went back home to his wife. But he never had sexual intercourse with his wife. They were sleeping to ether in the same bed. She asked him to have intercourse with her. He refused. She asked him why. He would give no reason. Ha just said: "Leave it". She said she would like to have a child. But he would not discuss it. He would not say anything at all. In consequence she became ill. In 1960 she want to the doctor. The doctor found that she was suffering from depression end sexual frustration due to her unhappy sexual relationship with her husband. The doctor treated her with sedative drugs and reassurance, but he was not successful in alleviating her condition. The dieter then spoke to the husband and explained to him that his conduct, in refusing to allow her to have children and his refusal of sexual intercourse, was affecting her health. Still the husband did nothing. The spoke to him and told him it was affecting her health. His attitude is beet shown by the wife's answer to the Judge:


(Q) What did he say when you said it (her illness) was because you were not having intercourse with him? (A) He said he was no longer physically attracted to me.


(Q) You had no reason to suppose he was associating with another woman? (A) He was, definitely.


(Q) Did you know that? (A) I can't prove it. I haven't got it in black and white, but I do know he had various girl friends ever the years.


(Q) Did he admit it to you? (A) He said they were only friends".


Eventually the wife moved from his bed into another room: and finally in February 1964 she left him. She was in a very had state of health, owing to his conduct. A year later on 20th February, 1965, she brought this petition fordivorce alleging that her hue band had treated her with cruelty. The petition was heard by Judge Carr at Worcester. The husband did not defend. But the Judge felt bound to dismiss the petition. He a aid: "I should have liked to have been able to hold that that amounted to cruelty…but, as I understand it, this case stands or falls on whether the mere refusal of sexual intercourse amounts to cruelty and on the authorities quoted to mo, I am afraid I am bound to say - although I have the greatest sympathy with the petitioner – that it does not, end therefore the petition must be dismissed".


When the case came before us, we saw that a point of some importance arose and we adjourned the case so as to obtain the assistance of the Queen's Proctor. We have now had the benefit of it. One thing emerged quite clearly from the discussion. Mr. Curtis-Raleigh for the Queen's Proctor submitted that this was a case of cruelty or nothing. If the husband's conduct did amount to cruelty, the wife was justified in leaving him and should get a divorce. If it did not amount to cruelty, she was cot justified in leaving him. She ought to have stayed there, even though her health was suffering greatly. By leaving him she was guilty of desertion. We can put aside, therefore, the refinements of "just cause" for desertion, and of "constructive desertion" and coma down to the root question: Was the husband guilty of cruelty or the wife guilty of desertion? For it must be one or the other. I must say I would be reluctant on these facts to find this wife guilty of desertion, seeing how her husband treated her. I would prefer to hold him guilty of cruelty. But can it be dons?


Before the decisions of the Rouse of Lords in Collins v. Gollins, 1964 Appeal Cases, p. 644t and Williams v. Williams, 1964 Appeal Cases, p. 698y many of us would have said, as Lord Justice Hodson said in Clark v. Clark, 24th June, 1958 (unreported) that "the mere fact that sexual intercourse does not take place between the parties, even if that is because oneunjustifiably refuses to have intercourse, is not of itself cruelty". We should not have held the refusal to be cruelty unless it was done with an intention to Inflict misery. Both lard Justice Bucknill and I said as much in Kaslefsky v. Kaslefsky 1951 Probate, p. 38. But now Kaslefsky v. Kaslefaky has been overruled. It has been said down that in cruelty it is not necessary to show an intention to injure or inflict misery. Nor is it necessary to show a guilty mind. One essential element is injury or apprehended injury to health. "In the light of that vital fact", said Lord Pearce, "the Court has than to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that, from a reasonable person's point of view, after a consideration of any excuses which the respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called on to endure it", see Gollins v. Gollins, 1964 Appeal Cases at p. 695. The other essential element is that the conduct mutt be grave and weighty. Lord Raid said that "after ma trine all allowances for his disabilities and for the temperaments of both parties, it must be held that the character and gravity of his acts were such as to amount to cruelty", see Williams v. Williams, 1964 Appeal Cases at p. 698. The house of Lords did not set any limits to the kind of conduct which may constitute cruelty. The categories of cruelty and not closed. The persistent refusal of sexual intercourse is not excluded. It may amount to cruelty, at any rate when it extends over a long period, and causes grave injury to the health of the other. You must, of course, make allowances for any excuses that may account for it, such as ill-health, or time of life, or age, or even psychological infirmity. These excuses may so mitigate the conduct that the other party ought to put up with it. But if, after making all allowances, the conduct is such that the other party should not be called upon to endure it, then it is cruelty.


It may be helpful if I go through the cases before 1964 to see hew far they stand up to the new tests. These following would plainly be decided the same way. When a husband persistently refused to have intercourse with his wife, and when she complained, used offensive language to her, see Lawrence v. Lawrence, 1950 Probate, p. 84. When a husband pars intently refused to have intercourse with his wife except with contraceptives or by coitus interrupted, thereby depriving his wife of the chance of having a child, see White v. White, 1948 Probate, p. 330:Walsham v. Walsham, 1949 Probate, p. 350; Cafkett v. Cafkett, 1950 Probate, p. 253;Knott v. Knott, 1953 Probate, p. 249. And when a husband, without his wife's consent, got himself sterilised so that he could perform the sexual act of intercourse but deprived his wife of any chance of bearing a child, see Bravery v. Bravery, 1954, 1 Weekly Law Reports, p. 1169. But I doubt whether Haves v. Hayes (6th March 1958) and Clark v. Clark (24th June 1958) would be decided the sane way now.


Since 1964 the cases stand in this way. Two wives have been found guilty of cruelty in refusing sexual intercourse. Thus when a wife persistently refused her husband completion of the act of sexual intercourse, she was held guilty of cruelty, even though it was, in a sense, not her fault but was due to a deep-rooted fear of bearing a child. Making all allowances for her psychological infirmity, it was still cruelty - see P(D) v. P(J) 1965, 1 Weekly Law Reports, p. 963. And where a wife persistently refused her husband sexual intercourse, quite inexcusably, she was held guilty of cruelty, see Evans v. Evans, 1965, 2 All England Reports, p. 789. Bat two husbands have been held not guilty of cruelty. Where a husband aged 35 with a young wife, after the first year, refused altogether for fifteen years because of an innate die inclination for sexual intercourse, he was held not guilty of cruelty, see P. v. P., 1964, 3 All England Reports, p. 919. Again, where ayoung 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 refusal from a woman's. A man cannot be expected to perform the act to order. These were cases where, on making just allowances, the man was to be excused. The wife had to put up with it.


This is a very different case. There is no suggestion of any infirmity on either side. Here we have a young couple who had a normal married life for eight years. Then the husband goes off to Scotland for a year: and thenceforward for six years refuses to have any sexual intercourse with her at all. He sleeps in the same bed with her and still refuses. He knows it is injuring her health. The doctor tells him so. Still he refuses. Is there any excuse? None that he has put forward save that he says...

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