MR MIRIAM ALICE MONK Vs. MRWILLIAM MONK

JUDGEMENT

(1.) This is a wife's appeal from the judgment and decree of the learned Judge on the original side, who has dismissed her petition for dissolution of marriage. It appears that the parties were married on 26 April 1920. There is issue of the marriage, one son Derek, born on 13th March 1924. In 1921 the wife began proceedings for judicial separation in this Court which proceedings were discontinued. On 24 November 1930, the parties entered into a separation deed, upon the terms of which the main matter for decision arises. On 13 July 1931, the wife brought another suit against the husband, which she withdrew. On 3 September 1931, she brought the present petition. In the first instance, four issues were settled. One was whether the petition was barred by reason of the previous proceedings. The second was whether the petitioner was entitled to refer to acts of cruelty alleged in the previous proceedings. Neither of these issues appear to be effective, nor indeed is there anything in the points which are raised thereby. Issue 3 is now the main matter before us: Is the petitioner, by reason of the deed of separation referred to in para. 13 of the plaint, precluded from relying upon the acts of cruelty alleged?

(2.) This issue was of cardinal importance by reason of the present petition, which is a petition for dissolution of marriage, grounded on allegation of adultery by the husband subsequent to the separation deed of 24 November 1930, coupled with allegations of cruelty, charged to have taken place prior to the execution of that deed. Before the learned Judge, the terms of Clause 3 of the deed were carefully discussed. The terms of the clause are as follows: No proceedings shall be taken by or on behalf of the said William Boyd Monk or the said Alice Miriam Monk against the other of them in respect of any misconduct or alleged misconduct previous to the date of these presents and any offence which may have been committed or permitted by either of them against the other is hereby condoned.

(3.) It is to be observed that this clause is in two parts and I will consider later whether the part which refers to condonation can, in any way, be regarded as cutting down the effect of the first part of the clause, which says: No proceedings shall bo taken in respect of any misconduct previous to date of these presents.