GORDON Vs. GORDON AND DE SARAN

JUDGEMENT

(1.) In this case the petitioner seeks to obtain a dissolution of his marriage with the respondent, on the allegation that she has committed adultery with the co-respondent. The adultery has been proved beyond all manner of doubt, and indeed the respondent never attempted to deny it. The co-respondent makes no defence whatever. He has not even entered an appearance in the suit; but the respondent by her answer charges her husband with continuous acts of cruelty, and contends that on that account not only is he disentitled to have an unconditional dissolution of the marriage, hut further she herself has a right to a decree for judicial separation with alimony. The latter part of her position is, I think, clearly untenable. She takes it on the strength of these words, in section 15 of the Indian Divorce Act: "In any suit instituted by a husband for the dissolution of his marriage, if the respondent opposes the relief sought on the ground of his (the petitioner's) cruelty, the Court may in such suit give to the respondent, on her application, the same relief to which she would have been entitled in case she had presented a petition seeking such relief." Now to what relief would Mrs. Gordon have been entitled had she petitioned the Court for judicial separation on the ground of her husband's cruelty, had she been met with a plea of adultery, and had that plea been proved as adultery has been proved here I will not say that in no case of the kind would the Court grant the relief asked for. But assuredly it will not do so while the respondent is actually living in adultery during the very time of pending suit. Under a decree of judicial separation, the bond of matrimony remains obligatory; and chastity is incumbent on the still united parties. Can Mrs. Gordon, while cohabiting as she certainly is with De Saran, claim a decree for judicial separation, at the foundation of which is the assumption that she is for the present and intends to Seep herself for the future the chaste wife of Mr. Gordon The question seems to answer itself.

(2.) It is not so easy to dispose of Mrs. Gordon's first head of opposition, or to say whether or not the case, as made out by the respondent, affords ground upon which the Court, in the exercise of the discretion reposed in it by the 13th section of the Divorce Act, ought to refuse the petitioner a dissolution of his marriage.

(3.) I wish to dwell as lightly as possible on the details of the unfortunate story of Mr. and Mrs. Gordon's married life. There can be little doubt of the real nature of this: although I am sorry to say that the chief narrators on both sides hesitated not at a falsehood, when it was likely to serve their turn. It is incontestable that, for a considerable period at any rate, Mr. Gordon was given to habits of intemperance; and behaved in a most unmanly way towards his wife. I think it is beyond question that during that time he, on more than one occasion struck her with his hand; and even committed more serious act of violence upon her I will refer more particularly to his conduct presently. It is true that legal cruelty cannot be construed as a set-off to habitual drunkenness alone. Even if that be accompanied by coarse and abusive language, and carried to the extent of destroying all domestic happiness, still cruelty arises immediately upon the introduction of such personal violence as affects bodily health; and it is enough for the moment to say that, in my opinion, previously to 1867, whatever may have happened in that year and afterwards, Mr. Gordon's behavior to his wife amounted oftentimes to cruelty in law.