Swan v Swan
| Jurisdiction | England & Wales |
| Year | 1953 |
| Date | 1953 |
| Court | Divisional Court |
Husband and Wife - Divorce - Cruelty - Insanity - Whether insanity a defence to a charge of cruelty - Condonation.
One spouse cannot be said to have been treated with cruelty by the other when that other was at the time suffering from such a defect of reason, from disease of the mind, as not to know the nature and quality of the acts complained of.
Per Hodson L.J.:
“I can find nothing in the old authorities to justify the proposition that a decree based on cruelty is a remedy given not for a wrong inflicted but solely as a protection for the victim.”
Quaere the case where a person knows what he is doing but does not know that it is wrong.
The mere fact that a wife receives and cares for her invalid husband when he returns home unexpectedly from hospital does not of itself constitute condonation.
Per Hodson L.J.:
“I feel the conception of forgiveness difficult if not impossible where the object of the forgiveness is not capable of receiving it by reason of the fact that he is out of his mind.”
APPEAL from Mr. Commissioner Grazebrook.
The parties were married in 1935 and there were two children of the marriage. In 1927 the husband had for some months been certified insane, but the wife did not know of this at the time of the marriage. During the spring of 1941 the husband was a voluntary patient in a mental institution at Epsom. In July, 1943, he became ill with tuberculosis and entered a sanatorium at Bournemouth, where he remained until he returned home in April, 1944. From then until a date in August, 1947, he treated his wife with violence, threats of violence and unreasonable behaviour which was held to amount to cruelty. In August, 1947, the husband's health again being affected with tuberculosis, he was admitted to the Osler Pavilion, in Headington, for treatment. In August, 1949, he arrived home unexpectedly from Headington. The wife received the husband and looked after him, there being no one else to do so; but he soon began his violence and threats again and she sent for the doctor. On September 22, 1949, the husband was removed to the Littlemore mental institution for observation and on October 6 he became a voluntary patient there. Apart from a few weeks at Headington, where he was again treated for tuberculosis, the husband remained a voluntary patient at Littlemore down to the date of the petition in February, 1952, and since that date.
It was proved that from September, 1949, and probably from some weeks earlier, the husband was suffering from such a defect of reason, from disease of the mind, as not to know the nature and quality of his acts, or that he was doing what was wrong. The commissioner held that by taking the husband back in August, 1949, the wife had condoned his previous cruelty, and that, in view of his insanity, the husband was not responsible for acts of his committed after that date which would otherwise have been cruelty. The commissioner accordingly dismissed the petition and the wife appealed.
Ifor Lloyd Q.C. and Thomas Dewar for the wife.
Stuart Horner and L. I. Stranger-Jones for the husband.
The following cases were referred to in argument: White v. WhiteF1; Lissack v. LissackF2; Morriss v. MarsdenF3; Evans v. EvansF4; Holden v. HoldenF5; Kirkman v. KirkmanF6; Squire v. SquireF7; Westall v. WestallF8; Kaslefsky v. KaslefskyF9; Hanbury v. HanburyF10; Brittle v. Brittle (by his guardian)F11; Mackrell v. MackrellF12; M'Lachlan v. M'LachlanF13; Henderson v. Henderson & CrellinF14; Hall v. Hall.F15
July 30. The following judgments were read, Hodson L.J., at the request of Somervell L.J., delivering the first judgment.
HODSON L.J.: This appeal is against an order of Mr. Commissioner Grazebrook dismissing a petition presented by the wife on the ground of cruelty of the husband. The husband, by the Official Solicitor, his guardian ad litem, denied the cruelty and further said that, if he had been guilty of any uncondoned act of cruelty, he did not know the nature or the quality of the act and did not know the act was wrong and was not responsible for the act.
The commissioner found that the husband had been guilty of cruelty up to and including the month of August, 1947, but that such cruelty was condoned. He further found that later acts of violence inflicted upon the wife and threats used by the husband against her, took place at a time when the husband had proved that he did not know the nature of the acts and did not know they were wrong. Accordingly, he found that the cruelty proved had not been revived, since the later acts and threats did not amount to cruelty in law, and dismissed the petition.
The case was conducted on the tooting that no question arose as to the responsibility of the husband for his acts prior to and including August, 1947, and, although the history of the husband as disclosed by the evidence shows marked mental instability over a long period of his life, the evidence relied upon on his behalf is concentrated upon the period beginning in August, 1949. During this period alone it was alleged and proved that he did not know the nature of his acts and did not know whether they were right or wrong.
[His Lordship stated the facts and continued:] Cruelty having been proved down to August, 1947, the first question is whether or not the cruelty was condoned. The violence of the husband continued until he went into hospital in August, 1947, when the wife called in medical aid, and I do not think it could be said that such cruelty was condoned up to that time. Everything, therefore, turns on the circumstances which existed during the short period from August, 1949, until September 22, 1949, when the parties were together for the last time. This period was very short. There was no sexual intercourse; this had ceased many years before. The husband was ill and in common humanity it was natural and reasonable for the wife to take him in. She and the children had nowhere else to go. She said in evidence:
“In August, 1949, he came home unexpectedly. I think he was discharged rather quickly. He was in a very bad state. He was very violent and very hopeless to live with.”
She then described how he dug a hole in the garden to bury her in and said he was going to strip her and beat her through the village if she did not make him tea at one o'clock in the morning. Thereupon, she said, she telephoned for the doctor who came and saw the husband. Admittedly, the wife did all she could for the husband during this period; she had welcomed him home as her husband although she was apprehensive of him, but I cannot see how her conduct in relation to this particular man, who did not know what he was doing, can be taken to be condonation. The element of forgiveness, albeit conditional forgiveness, is always present in condonation. Viscount Simon in Henderson v. Henderson,F16 taking a case where a wife had been guilty of a matrimonial offence, said:
“The essence of the matter is … that the husband with knowledge of the wife's offence should forgive her and should confirm his forgiveness by reinstating her as his wife.”
I feel the conception of forgiveness difficult if not impossible where the object of forgiveness is not capable of receiving it by reason of the fact that he is out of his mind. I would therefore hold that the cruelty up to August, 1947, had not been condoned.
The commissioner, having decided that this cruelty had been condoned, was bound to consider the allegations of cruelty during the period beginning at some date in August, 1949, and ending on September 22, when the husband was taken away for the last time, first to be kept under observation, and later as a voluntary patient at Littlemore and where, apart from a short period in a hospital for tuberculosis at Headington, he has been ever since. During this period the husband was violent and behaved in a manner which can fairly be characterized as insane. I have already given some examples of his conduct. In addition, he threatened the wife with a razor blade under a delusion that there was an Indian outside the house who was in some way being encouraged by the wife. When he was at Littlemore he came under the care of Dr. Armstrong, Physician Superintendent of the hospital, who gave evidence that the husband was suffering from a schizophrenic illness of a paranoid type. He stated that, in his opinion, from the beginning of August it was probable that he did not know the nature of his acts and during the same period he would not have known whether they were right of wrong. On this and other evidence the commissioner came to the conclusion, rightly as I think, that from the beginning of August, 1949, the husband neither knew what he was doing nor whether what he was doing was right, or wrong. Since the commissioner dismissed the petition for this reason and that ground has been challenged, it is, I think, right for this court to express its view upon it.
It is to be observed that the commissioner found that the husband did not know what he was doing, thus bringing into play the first branch of the so-called M'Naghten rules. Apart from authority, I should have thought that it was a contradiction in...
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