Timmins v Timmins
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,MR. JUSTICE LLOYD-JACOB,LORD JUSTICE HODSON |
| Judgment Date | 18 May 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0518-3 |
| Court | Court of Appeal |
| Date | 18 May 1953 |
[1953] EWCA Civ J0518-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Hodson
and
Mr. Justice Lloyd-Jacob
MR. IFOR LLOYD, Q.C. and MR. D.A. Fairweather (instructed by Messrs. Langhams & Letts, London, agents for Messrs. Philip Baker & Co., Birninghma) appeared on behalf of the Appellant.
MR. J. E. S. Simon, Q.C. and MR. A. A. Shenfield (instructed by Messrs. Bentleys, Stokes & Lowless, London, agents for Messrs. Turner Bayley & Co., Dudley) appeared on behalf of the Respondent.
The parties married on 2nd February, 1938, when the husband was 27 and the wife 23. They separated on 13th April, 1951, when the wife left the home. They have three children who at the date of the separation were aged 7, 5 and 3. On 10th May, 1951 the husband filed a petition for Restitution of Conjugal Rights. The wife put in an answer in which she said she had just cause for leaving him and claimed a divorce for cruelty. The Judge has rejected the wife's charges of cruelty and granted the husband a decree for Restitution. The wife appeals to this Court.
There is one salient fact in the case. On the 13th March, 1951, just a month before the separation, the wife had a mental break-down and spent a fortnight in the mental ward of a hospital. The nature of the break-down was described by the medical officer of the hospital in this way: "she was agitated and suffering from delusions. She said she was having messages from God and that God was speaking to her. She said that her husband had tried to kill her with a knife and poison her with some fluid 'which was not brandy as he said it was.'" By the 26th March, 1951, she had greatly improved and on the 30th March, 1951, she was allowed to go home.
She had only been home two weeks, however, when on the 13th April, 1951, she left, taking the middle child, a girl aged 5, with her. She said in evidence that the reason she left was because at night in bed her husband put his hands round her throat to strangle her: but there was nothing to corroborate her on this point and the Judge did not accept it. After she left, the husband had great difficulty in finding where she had gone. He eventually found her and the child three weeks later at a village 8 miles away. He took the child away from her — the child was in tears about it — and took her back to the others. Two weeks later he fetched the wife home also, but sheonly stayed till 5 o'clock the next morning and then left finally. Several months later — long after proceedings were started, she came back and said she had come for three days. The husband said "You will come back for good or not at all." She went away again and has never returned.
In the course of the case, the wife made many charges of violence against the husband. When you remember that this wife has suffered from a persecution mania, the Judge was fully justified in holding that he could not accept her evidence unless it was corroborated. The Judge has found no specific incident proved except one which the husband admits, namely, that in December, 1948, he hit his wife on the shoulders and in the mouth. This was, as the Judge found, "wholly without excuse" but it was over two years before the final parting.
Apart from that one incident, the only thing proved against the husband was that he was bad tempered, domineering and overbearing: but, this was a serious matter because of its effect on the wife's health. This is what the Judge said about the husband: "I have come to the conclusion that he is a person who is inclined to be overbearing, domineering, insistent upon maintaining his rights as a husband and to have the household conducted in accordance with his ideas, and that he has a hasty temper and habitually expresses himself in rather rapid unmeasured terms, which may have had an effect upon the mind of the wife from time to time and tended to disturb the quietude of the matrimonial home — I am very anxious about this case because I am wondering whether, if I make an order for restitution of conjugal rights and the wife goes back — whether he might not be again over-bearing domineering and dictatorial, as I am satisfied he can be if he wishes to be, so that an effect can be produced on the wife's mind which may cause another break-down — I confess to anxiety in case the wife returns — but these are notmatters which can weigh with me because, if the husband is entitled to the order for restitution, he ought to have it. Much though I regret it, that seems to me to be quite clearly the position here."
As I read those findings, the Judge thought that the husband's domineering conduct might well have brought about his wife's first break-down; and might bring about another; but, nevertheless, she was bound to go back to him.
Before I deal with the law, I wish to say that the Judge's findings of fact were amply justified by the evidence. Not only were there the inexcusable blows in December, 1948, but there was also the way the husband treated the wife after her illness. On one occasion he took the child away from her in tears. On another he told her she must come back for good or not at all. That is hardly the way to treat a wife who has borne him three children and has only recently come out of hospital after a mental break-down. Once you accept the fact that the husband had the character and temperament described by the Judge, you have an explanation of the break-down, which is otherwise unexplained. The Judge clearly accepted the evidence of the doctor who attended her in that mental ward, Dr. Tweddle, who gave these answers in the course of cross-examination.
(Q) When there is maladjustment — living together in a state of friction for years, it does sometimes produce this kind of break-down? (A) Yes, it could do. (Q) It could come about in a sense innocently, but it does come about nevertheless? (A) Yes. (Q) If the husband is domineering, opinionated, displays a rather violent and unreasonable temper, that sort of thing; that may produce it? (A) Yes. (Q) Quite apart from any physical violence, if it goes on long enough? (A) Yes. (Q) You do get a break-down of the weaker party? (A) Certainly.
On the evidence so given and facts so found, I am a little surprised that the Judge acquitted the husband of cruelty. It seems clear that the husband's conduct caused injury to the wife's health, or at any rate, reasonable apprehension of it; and it can hardly be denied that it was grave and weighty, seeing that it was such as to be likely to cause a mental break-down. But the Judge has expressly found that her break-down was not due to any "wrongful conduct" on the part of the husband. Having regard to his other findings, this must mean, I think, that the domineering conduct of the husband was not done with any intent to injure or to inflict misery on the wife. It was simply a defect of temperament manifesting itself in a most unpleasant way. Now it is well settled that an intent to injure, if not an essential element, is at any rate a most important element in cruelty. In the absence of an intent to injure, a Judge may well be justified in refusing to find cruelty, see what Lord Justice du Parcq said in ( Thomas v. Thomas 1947) 176 Law Times at page 507, and what Lord Justice Reid said in Jamieson v. Jamieson 1952 Appeal Oases at pages 548-549, and in King v. King 1953 Appeal Cases at pages 139-140; and see also the decisions of this Court in Cox v. Cox 1952 2 Times Law Reports at page 141, and Fowler v. Fowler 1952 2 Times Law Reports at page 143 per Lord Justice Hodson. In these circumstances, the Judge having acquitted this husband of cruelty, I do not think we can interfere with his decision on that part of the case.
The other part — the decree of restitution — is a different matter; for the Judge seems to have thought that, as matter of law, once the husband was acquitted of cruelty, he was entitled to a decree of restitution. I do not think that is right. Take this very case. On the facts as found by the Judge, I ask myself: Is this Court bound to order the wife to return to the husband? What would be the result of such an order? Either she will return inobedience to the order, in which case she may have another mental break-down — the Judge was very anxious about that. Or (what is more likely) she will refuse to return, in which case she will forfeit any right to maintenance and will at the end of three years be liable to be divorced for desertion without cause. I decline to put this poor woman to such a cruel alternative. She has borne this husband three children, and has suffered a mental breakdown, through no fault of her own — that is certain -but possibly, as the Judge thinks, through her husband's conduct. The Judge observed that he did not want to make an order against her to return. He said he much regretted it, but thought he had no option. I think he had an option. He ought on his findings to have refused an order for restitution.
The authorities are numerous but there is one passage in the judgment of Lord Herschcll, Lord Chancellor, in the case of Mackenzie v. Mackenzie 1895 Appeal Cases at page 390 which is so apt that I quote it: "Take the case of a husband who has heaped insults on his wife, but has just stopped short of that which the law regards as saevitia or cruelty. Can he when his own conduct has led the wife to separate herself from him, come into Court, and avowing his misdeeds, insist that it is bound to grant him a decree of adherence?" That was a Scotch case, but the words of Lord Herschell were accepted as good law in England by Mr. Justice Gorell Barnes in the case of Oldrovd v. Oldroyd 1896 at page 175 which has always been regarded as laying down the law on this point. Since that time it has been repeatedly...
To continue reading
Request your trial
- Gollins v Gollins
-
Williams v Williams
...be that the Court has a discretion and need not make a restitution order against her, but the sole authority for this is the case of Timmins v. Timmins [1953] 2 All E.R. 187, in which there is a powerful dissenting judgment by Hodson, L.J. (as my noble and learned friend then was). It may b......
-
Thoday v Thoday
...the well-known case of Russell v. Russell. It is also, I think, clearly brought out by another decision of this Court, namely, that in Timmins v. Timmins, (1953) 1 Weekly Law Reports 757, where charges of cruelty were dismissed, but, at the same time and by the same judgment, a decree of r......
-
Hall v Hall
...54 Weekly Reporter, page 564), ( Butland v. Butland 1913 volume 29 Times Law Reports, page 729) and ( Timmins v. Timmins 1953 volume 2 All England Law Reports, page 187) where Lord Justice Denning (as he then was) at page 190 said: "It has been repeatedly held by some of the most eminent ju......