T v T
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE DONOVAN,LORD JUSTICE RUSSELL |
| Judgment Date | 02 May 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0502-1 |
| Court | Court of Appeal |
| Date | 02 May 1963 |
[1963] EWCA Civ J0502-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod,
Lord Justice Donovan and
Lord Justice Russell
MR JAMES STIRLING, Q.C. and MR C. TREVOR REEVE (instructed by Messrs Dehn & Lauderdale) appeared as Counsel on behalf of the Appellant (Petitioner).
MR JOHN B. LATEY, Q.C. and MR S. SEUFFERT (instructed by Messrs Hart Leverton & Co.) appeared as Counsel on behalf of the Respondent (Respondent).
This is a wife's appeal from the decision of Mr Justice Wrangham of the 11th November, 1962, dismissing her petition for divorce. The petition was filed on the 23rd November, 1960, and alleged acts of cruelty not of a sexual nature. But on the 15th November, 1961, the petition was amended and allegations of cruelty consisting of sexual malpractices were made, and in addition the wife petitioned for a decree on the ground of sodomy committed on her by her husband on three occasions. By his answer, the husband admitted that he had committed sodomy as alleged, but pleaded consent by the wife and alternatively condonation. The issue of condonation did not arise in the judgment of the learned Judge and is not an issue in this appeal. The questions which we have to consider are whether, in the first place, there was a consent by the wife to the sodomy, and, secondly, whether on the evidence the acts alleged amounted to cruelty on the husband's part. By cruelty I refer only to the allegations of cruelty based on sexual malpractices, as this Court is not required to pronounce on what the learned Judge has described as the non-sexual acts of cruelty.
The parties were married on the 4th June, 1959, the wife being 18 and the husband 24. Prior to meeting the husband, the wife had no previous experience of sex, but it is agreed that sexual intercourse took place before marriage as a result of which the wife became pregnant, and a child was born on the 8th January, 1960. The wife said in her evidence, and it is not denied by the husband, that prior to the marriage the husband asked the wife if he could perform the act of sodomy, but she refused. The parties lived together for a year in Earl's Court Road and then took a flat in Lennox Gardens. The marriage lasted 18 months, and, on the 18th October, 1960, the wife left the husband, taking the child with her.
It appears that in the early part of the marriage the parties were happy enough, and appear to have been in love one with the other. Early in the marriage, however, when sexual intercourse was taking place between the parties, the husband suggested that sodomy should be committed, but the wife on many occasions refused, and she says she only permitted it on three occasions in all, each time when sexual intercourse in the normal way was not practicable. The wife's story is that she did not like the practice of sodomy. It was painful and she did not enjoy it. But her husband told her that other wives of her acquaintance made no objection and that it was her wifely duty to do it, and that she appears to have accepted. It is to be remembered, however, that on many occasions she refused to commit sodomy, and that on one occasion she said in her evidence that she thought it was not a natural thing to do although she did not think it was wrong.
The salient points in the evidence of the wife on this question are these. On page 6 of Day 1 she says: (Q) It was first mentioned? (A) Yes. First mentioned just after we got married. (Q) In what form was it mentioned? (A) He said he wanted to bugger me again. (Q) Were those his words? (A) Yes. (Q) Where did this conversation take place? (A) In our bedroom in Earl's Court. (Q) Yes. In bed or out of bed? (A) In bed. (Q) What was your response to that? (A) No. I did not like it. (Q) Did he say anything to that? (A) He more or less implied that it did not really matter whether I liked it or not; it was my duty, I was his wife." And again on page 7 she says this: "(Q) I must ask you this. What was your reaction to it; did you enjoy it or not? (A) No, I did not. I hated it. I found it very uncomfortable, and very painful. (Q) Did you say anything about that to your husband? (A) Yes, I did. (Q) How long after? (A) While it was happening, and afterwards, and he said that in time it would not hurt so much, and I said I did not care, I did not want it."
She went on in her evidence to say that she did not allow sodomy to be committed except on the three occasions already referred to, and, when asked what she believed when the husband said that his friends' wives allowed it, her answer was: "I was not sure what to believe. I thought that if what he said is true it must be true", and later she said that when she refused his attitude was sulky and he used to behave like a child who was refused a sweet.
It is to be remembered, however, that, although the wife appears to have accepted her husband's statements that sodomy was an act which was practised by his friends with the consent of their wives, she herself does not appear to have regarded it as wholly natural. On page 45 of Day 1 of the transcript there is this passage: "Tell me, in relation to some of that that you say your husband asked you to do; did it not ever occur to you that it was wrong? (A) By instinct, yes, possibly it did; I think it did, not wrong, but not natural. (Q) Well, not natural. Did it upset you at all being asked to do these things which you regarded as not natural? (A) Yes, it did upset me." It is probable that those questions and answers relate to other sexual practices as well as to the sodomy.
Those, I think, are the material passages in the evidence which the learned Judge had in mind when he considered whether there had been consent on the part of the wife, and on page 7 of the transcript of his Judgment he says this: "In this case I am satisfied that this particular wife had complete freedom to choose whether she would permit sodomy or would not permit sodomy, and in the exercise of that complete freedom, she did permit, in other words, she consented to it. I might add that I have seen her in the witness box, and she is a young woman of character and personality who would not easily be dominated either by this husband or any other. It follows that I find that the sodomy was consented to, and that shecannot rely upon that for relief in this case. Of course, the fact that this sodomy was committed, though it cannot be relied upon as I think as a substantive ground for relief, remains as a fact against which the other matters in this case have to be assessed".
The question we have to consider is whether there was any real consent on the part of the wife to the admitted acts of sodomy. By the Matrimonial Causes Act, 1950, section 1, the wife may obtain a decree on the ground of her husband's sodomy after the marriage, and it has been held that sodomy is a ground for divorce when practised by the husband on the wife and not upon a third person. The authorities establish, however, that sodomy shall not be a ground for a decree when practised on a wife if the wife has been a consenting party, and therefore the question to be considered is whether the wife in fact has given any real consent to the acts alleged. Two decisions of this Court appear to be relevant. They are Statham v. Statham, 1929 Probate, 131, and Bampton v. Bampton, 1959, 2 All England Reports, 766. In Statham v. Statham the issues were whether there had been any act of sodomy, and, if so, whether the wife had consented to it. There was certainly not more than one act, and the question then was whether the wife had consented. Lord Justice Greer at page 144 says this. "Section 178 of the Judicature (Consolidation) Act, 1925, provides as follows: '178 (1). On a petition for divorce it shall be the duty of the court to satisfy itself so far as it reasonably can both as to the facts alleged and also as to whether the petitioner has been accessory to or connived at or condoned the adultery or not and also to inquire into any counter charge which is made against the petitioner.' It is curious that this section only speaks of the petitioner as being accessory to or conniving at or condoning adultery, that is to say, the cause of divorce mentioned in subsection (a) of section 176, and there is nothing about connivance or condonation of the causes of divorce mentioned in the first part ofsubsection (b), which includes sodomy, but it is difficult to suppose that the Court is bound to grant a decree for dissolution of marriage to a wife who upon her own evidence has consented to the act of which she complains. The rules with regard to condonation and connivance as a bar to a decree for divorce were well established in the practice of the Ecclesiastical Courts before the Act of 1857: see the cases cited in Rayden on Divorce, 2nd Edition, pages 107-110 and especially Curtis v. Curtis. In my judgment these rules apply to cases in which the ground alleged for divorce is sodomy." Later in the same Judgment on page 145 Lord Justice Greer says this. "It is quite clear that the act was not done as she alleges in her petition by force and against her will. In cross-examination she stated that her husband was 49 and that she was only 20, and when asked whether she tried to prevent him she said 'No, I did not try to prevent him. I did as I was told. I did not know much about things when I was married.' This falls far short as showing that that she did not understand that what she was consenting to was wrong. She must have known that it was wrong, improper and unnatural, and she does not venture to say that she did not. There is no indication of any sort of duress exercised by the appellant, and it is noteworthy that when he suggested doing it again she maintained her refusal without difficulty. In my judgment the learned Judge ought to have dismissed the...
To continue reading
Request your trial
-
Regina v MK [1973] PNGLR 204
...who does the act goes with it (R. v. Senior [1899] 1 Q.B. 283 per Lord Russell of Killowen C.J., at pp. 290, 291). Whilst in T. v. T. [1964] P. 85 the Court of Appeal appears to have treated "permit" and "consent" used in relation to sodomy as though the words were synonymous, the court was......
-
Processes of Intermittency in Criminal Careers
...study of prison and parole systems, he puts forth the well-known argument that “almost all criminals follow a zig-zag path” (Glaser, 1964, p. 85), such that most individual criminal careers are characterized by movements back and forth between 914 International Journal of Offender Therapy a......
-
Bibliography - a Selection
...ilegalidad de los actos administrativos tional and administrative en structures in el Derecho venezolano. Rev. de Adm. Ghana. Civ., 1-2/1964, pp. 85-92. Publ., 1/1964, pp. 427-456. GARRIDO FALLA, Fernando, La nueva legisla- BROWN, David S., The Key to Self-Help: Im- ción sobre funcio......
-
Genèse et conséquences du mimétisme administratif en Afrique
...in Public Administration Overseas : The case rations sur of develop- place, en tenant compte de courants ment administration, Chicago, 1964, p. 85. Quant du social engineering de toute sorte. La tolé- différences frappantes entre l’approche française et rance du mimetisme prol......
-
World System, State Structure, and the Onset of the Mexican Revolution
...Andrés Molina Enriquez (1909), Los grandes problemas nacionales (México:Ediciones del Instituto Nacional de la Juventud Mexicana, 1964), pp. 85-97, 265-347. For anexcellent annotated bibliography, see Cosio Villegas, "Nueva Historiografia politica delMexico moderno," Memoria de El Colegio N......