MRS O K SMITH Vs. MRHPSMITH

JUDGEMENT

(1.) In this case the petitioner Olive Kathleen Smith prays for the dissolution of her marriage on the ground of the cruelty and adultery of her husband, Henry Percival Smith. The parties were married on 15 May 1918, at the Church of the Sacred Heart, Calcutta, and at that time the petitioner was a girl of about 18 years of age and the respondent was 23 years or thereabouts. The parties are of British Indian domicile and they both profess the Christian religion and accordingly this suit is brought under the Divorce Act of 1869. The petitioner makes a general allegation of cruelty against her husband, but in particular relies upon three specific instances which are set forth in para. 10 of the petition. In that paragraph the petitioner states that some time in August 1920, at No. 21, Sooterkins Lane, the respondent struck her at a time when she was pregnant and threw her on the bed thereby causing injuries to her mouth. Secondly, towards the end of the year 1926, the respondent struck the petitioner at No. 5, Alimuddin Street of Calcutta. Lastly, there is an allegation that the respondent, at No. 11, Turner Street, between 15 and 28 March 1928, frequently attempted to have unnatural sexual intercourse with the petitioner. With regard to this latter charge, I do not think I need say any more than that it has recently been laid down that where a charge of that nature is alleged the Court ought, generally speaking, to require some corroboration of the petitioner's story because if she in any degree assents to what happened she becomes an accomplice to her husband in the matter. I accordingly disregard that charge altogether. I am however satisfied on the evidence of the petitioner and the witnesses who were called that the other two charges are established. I am also satisfied that the respondent did, in general, treat his wife in the way he should not have done, and that on various occasions he did use physical violence towards her.

(2.) With regard to the charge of adultery the petitioner's case is that after she had left her husband in March 1928, he brought to No. 11, Turner Street, where he was then living, a woman whom he had caused to be procured for him for the purpose of living with him as a substitute for his lawful wife, who at that time had left him. I have no doubt whatever that the evidence given by Mrs. Kiernan and her son John Kiernan is wholly accurate. I can see no reason whatever why John Kiernan should have done other than tell the whole truth and nothing but the truth in this matter. It is clear from his evidence that the respondent did have a woman, whose name was said to be Mary McCarthy, living with him at No. 11, Turner Street, for two or three months in the year 1928. I hold therefore as a fact that the respondent has been guilty of cruelty in the legal sense towards his wife and that he has committed adultery. It follows that had the matter rested there the petitioner would have been entitled to the relief which she seeks in this suit. But the petitioner has herself committed adultery and she has set forth in her petition some account of the circumstances in which the adultery was committed. She frankly admits in her petition that she has committed adultery with two persons: firstly with a man by the name of Pearson, and secondly, with Ambrose Lawrence Andree, with whom she has bean living for the last two or three years and with whom she is still living.

(3.) The petitioner however asks the Court to exercise its discretion and to grant her a decree in spite of the fact that she herself has committed a matrimonial offence. The respondent by his answer denied the cruelty and adultery alleged against him, and further set up, as a plea in bar, the facts which I have just mentioned and contended that the petitioner is not entitled in any event to succeed in the suit by reason of her own adultery. Having regard to the findings of fact to which I have arrived it is necessary that I should decide whether or not this is a case in which the Court ought to exercise the discretion, which it undoubtedly possesses, and grant a decree to the petitioner in spite of her own adultery. At the outset it may be said in the petitioner's favour that she has made a very full and frank avowal to the Court. It is essential, as a matter of practice, in matrimonial cases that if a petitioner wishes the Court to exercise its discretion in his or her favour he or she should make a frank disclosure of all the circumstances of the case. In a recent case, in England, Stuart V/s. Stuart and Holden [1930] P 77, Hill, J., said: It is the condition upon which the Court can properly exercise its discretionary power that there should be complete frankness on the part of those who are asking for its discretion.