Gordon vs Gordon and De Saran

Phear, J.—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.

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.

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.

But it is urged on behalf of the petitioner, that if he was guilty of cruelty, that cruelty had been condoned by the respondent; and consequently cannot now be set up by her as a bar to his claim for a dissolution of marriage. In other words, the petitioner in effect says to the respondent: "You have broken your marriage vows by committing adultery: by reason of the injury which you have thus done me I am entitled to have our marriage contract dissolved: possibly my conduct towards you has been such, that in view of it, the Court might in its discretion refuse me this relief; but you cannot bring it under the consideration of the Court because you have condoned it." Is this argument valid?

Turning to section 14, we find it there enacted that, in the hearing of a petition for dissolution of marriage, "in case the Court is satisfied on the evidence that the case of the petitioner is proved, and does not find that the petitioner has been in any way accessory to, or conniving at, the adultery of the other party to the marriage, or has condoned the adultery complained of, &c., the Court shall pronounce a decree that such marriage be dissolved, &c., provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery or of cruelty towards the other party to the marriage." And in the 13th section the Legislature says, "in case the Court finds that the petitioner has condoned the adultery complained of, then the Court shall dismiss the petition." Thus the Legislature distinctly declares that uncondensed adultery alone shall be a good cause of suit for dissolution of marriage but it omits to prescribe any qualification to the adultery or cruelty which is to enable the Court in its discretion to refuse the petitioner relief. It appears to me that this omission is not without its significance. While a fault stands condoned, the condoner, doubtless ought not be allowed to complain of it as a present grievance; but it does not therefore cease to be a fault on the part of the offender. Now as I understand the words of the proviso in section 19, they were used by the Legislature not with a view to giving a counter-right of complaint to the respondent as against the petitioner, but for the purpose of affording the Court power to withhold the benefit of the Act from a claimant, whom on account of his misconduct in his marriage relations it considered unworthy to receive it, notwithstanding that he had in fact otherwise made out a sufficient ground of suit. This construction accords with the principle which has uniformly governed the decisions of the Ecclesiastical Court in England. Sir James Wilde, in Boulting v. Boulting 10 Jur. N.S. 183 : 3 S. & T. 337, said: "Before the Court interfered it ever insisted upon clean hands, a real grievance, a very present wrong, and above all sincerity," and it is here pertinent to enquire, would Mr. Gordon''s hands be the cleaner of the cruelty and ill usage charged against him, even if it be true that Mrs. Gordon forgave him any portion of it? Sir Cresswell Cresswell, in Goode v. Goode and Hamson 2 S. & T. 253 after a careful consideration of that portion of the English Act which is identical with the proviso of section 14 of our Indian Act, came to the same conclusion as that which I have just expressed. His words are : "If in this clause it had been intended to prohibit the Court from taking into consideration offences which had been previously condoned, no doubt words to that effect would have been introduced. It seems plain to me that the Legislature confided to the judicial discretion of the Court all such matters as are described in the proviso, and with reference to them it seems to place the Court in the same position when dealing with petitions for dissolution of marriage, as the Ecclesiastical Court was in regard to suits for divorce a mensa et thoro."

It appears to me clear that the Court is bound to give consideration to so much of the particulars of cruelty set out in the respondent''s answer as have been established by evidence notwithstanding that it may also have been proved that the respondent may have condoned some or all of them; and that it is the duty of the Court upon such consideration to determine whether, according to the general principles, Which guided the Ecclesiastical Court, and were confirmed by Sir James Wilde, the petitioner is entitled to the relief for which he asks. The particular rule of the Court not to allow cruelty to be an answer to a claim for divorce a mensa et thoro on the ground of adultery, is excluded by section 14 of the Divorce Act in this case, if an application for a dissolution of marriage and an allowance of alimony has been made. With this purpose I will now shortly give my view of the facts of the case, including among them the condonation of the respondent, because although it does not, as I think, operate as a bar, it may be valuable for the light thrown on the events which preceded it.

The specific allegations of cruelty made by the respondent in her answer, are some thirteen or fourteen in number, covering the period of ten years between 1858 and 1868. Nearly every one of the acts thus alleged was flatly denied by the petitioner, and the statement of it characterised as a false and malicious fabrication. The rest he qualified or explained away. In the course of the trial, however, I have come to be of opinion that very little value is to be attached to Mr. Gordon''s word. Before the hearing commenced, when called upon to produce the letters of the respondent, be manifested his entire disregard of truth by deliberately making affidavits that he had in his possession and power only one letter of the respondent in any way relating to the suit, besides Chat which had already been produced, when the fact was that he then had to his own knowledge, more than one other I think either in his own possession or in the possession of his attorney, and actually used them on his own behalf at the trial. It is also perfectly clear that, with reference to the very first transaction he attempted to explain, I allude to the altercation with and violence towards his wife which occurred at Umballa, he gave an utterly untrue account. I feel it utterly impossible not to believe Mr. Wood''s version of what there took place, and from that I have no doubt that on that occasion he did strike the respondent with a horsewhip, and did otherwise behave violently towards her without any kind of justification. The petitioner does not pretend that he was at the time under the influence of liquor, or for any reason incapable of knowing what he was about. I can only attribute his present story to a wilful perversion of the real facts.

The date of this event appears to have been so early as 1858. And ever since that period, according to Mr. Gordon''s own admission, his conduct towards his wife has been at times very gross. He commences by stating to his own counsel, that he and his wife lived on "very good terms, but they had occasionally squabbles and rows; he does not recollect that he ever knocked her down."

Again he remembered that, in 1862, he had a good row with his wife on board the Puttiala at Garden Beach. It lasted half an hour, but "he only struck his wife twice;" he struck her with his hand. He would not swear that there were not two rows on that day, one in the afternoon and one in the evening; and he admitted that what then happened was so serious that the officers of the Company, in whose service he was, forbade Mrs. Gordon from remaining on board. Mr. Gordon gives no sort of excuse for or explanation of his conduct on this occasion.

It is further proved, I think beyond all dispute, that in 1865 he inflicted a most serious injury upon his wife, during the time when they were residing in Elliots Road; and that she was obliged in the night to seek refuge from his violence in the house of a neighbour. The evidence of Dr. Woodford and Captain Butterwick places this beyond all doubt. I think it is clear that this outrage was committed at the time when Mr. Gordon was in a fit of drunkenness, and his statement that he did not know--did not remember the details of the occurrence--is probably correct. After this period his conduct became so bad that Mr. Anley, an attorney. of this Court, on behalf of Mrs. Gordon wrote him a letter calling him to account for it; and he, Mr. Gordon will not undertake to swear that the purport of that letter was not to demand a separation on the ground of cruelty to his wife. The letter itself is not forthcoming, because as Mr. Gordon says he destroyed it several years ago. Mr. Gordon did not say that there were substantial materials on which Mr. Anley could base the charge of cruelty which he made, and he offered no explanation of the circumstances under which the letter came to him. Again, somewhat later, we have Messrs. Rogers and Remfry writing to him on behalf of Mrs. Gordon in the same strain a letter dated 11th April 1866, in which specific charges were made against the husband, and which one would certainly expect would have been at once met by an indignant denial if the representations made in it had not been substantially correct, yet it does not appear that Mr. Gordon in any way manifested surprise at such a communication. It does not seem that he took any steps whatever to clear himself from these charges, and I cannot say I have the least doubt that the charges were not put forward gratuitously and without good foundation.

Mr. Gordon admits that by this time a fondness for liquor was growing on him, and on this account in the year 1866, he took the temperance pledge. Apparently this step was followed by amendment of his behavior to his wife, and no doubt Mrs. Gordon, in June 1867, wrote to him letters full of affectionate expressions and of love towards and confidence in her husband. These are the letters relied upon by the petitioner to show that his wife had at that time condoned all his previous misconduct. I think that they amount to proof of such condonation, but I have already said that condonation is not a matter of importance in regard to the issue which I am now considering. These letters, however, of kindness and affection, would be important if they intended to lead to the conclusion that the husband''s previous acts of misconduct towards his wife were insignificant in character and readily forgiven by her; but these letters do not produce that impression in my mind. They do not cause me to look upon the previous acts of the petitioner in any different light from that in which his own evidence has placed them. And it is not unimportant in judging of the proper course of these letters, to remember that they were written just at that period, at that crisis in a married woman''s life, when she most naturally more than at another time feels herself drawn close to and dependant upon her husband. After these letters were written, however, Messrs. Rogers and Remfry were again applied to by Mrs. Gordon, and wrote two letters on her behalf to her husband in November and December 1867, claiming separation from him on the ground of his constant cruelty towards her. And I think although the husband does not speak definitely on this point, that previously to these letters of Messrs. Rogers and Remfry, and subsequently to Mr. Gordon''s letters of June, there must have occurred acts of violence on his part towards his wife at Chandernagore, such as to cause her to go to the convent for refuge. Certainly there can be no doubt that at that time he was put in the lock-up at Chandernagore, in consequence of his behavior at the house of Mrs. Gordon''s mother. The letter of Mr. Rogers of the 3rd December 1867 expressly refers to the outrage which had caused Mrs. Gordon to take refuge in the convent, and he himself, with regard to the other matters said, although he was be drunk that he did not know what was the cause of his being taken to the lock-up, his wife and her mother had explained to him that this was in consequence of his violent behavior towards them. Mr. Gordon does not venture to swear that these accusations are untrue. It is quite clear I think, that these letters of Mr. Rogers could not have been sent to carry out any sinister purpose. According to Mr. Gordon''s own story they led to nothing but reconciliation; and it is not suggested there could have been any concealed end in view in causing them to have been written. It appears to me that even if condonation was to have the effect for which the petitioner''s counsel contended, the condonation was in fact obliterated by the behavior of Mr. Gordon subsequently to June 1867. Even so late as March 1868 according to Mrs. Gordon''s account, which is partly supported by the admission of her husband, he was again guilty of violent conduct at Chandernagore.

Finally we have the two letters written in April 1869. He writes these from Calcutta to his wife at Chandernagore. (His Lordship here read the letters referred to.) These letters were written at a time when, according to his own statement, he had no real cause of complaint against his wife; only a vulgar rumour had reached him--be did not say how that she had been unfaithful to him--a tale of a man having been seen getting over a wall which he acknowledged that be did not believe. Any thing more brutal and cruel than these letters, closing with fearful imprecations against his wife''s mother, I never read. This is, perhaps, a fitting scene to close the drama of their married life such as they have themselves displayed it before the Court. In arriving at the facts which I have mentioned, I have had regard solely to the testimony of the husband, of disinterested witnesses, and to letters which cannot deceive. If I had taken into consideration also the evidence of the wife, the picture would have been very much blacker than I have painted it. But I think it fair to the husband to say that the wife has shown herself such before the Court that even less reliance can be placed on her testimony than on that of the petitioner. Possibly her behavior during his married life may, in some degree, stand excused by reason of the conduct of her husband towards her. I am speaking of the time antecedent to the date when she left him in 1868. But since that period, no doubt there has been on her part that dissimulation towards him, and that dishonesty of conduct which must deprive her charges against her husband of any firm foundation, so far as they are unsupported by independent testimony; and she did not hesitate, when she came into Court, to commit most deliberate perjury in the answers which she gave, denying the authorship of two unmistakable letters of hers. But this worthlessness of the wife does not weaken my belief as to the grave misconduct and cruelty of the husband. I think be has for years past, up to the date almost of the very day on which his wife left him, been guilty of cruel and unmanly conduct. Oftentimes, no doubt, it has been intoxication and habits of intemperance which have led to the unfortunate conflict between the petitioner and his wife. Still, in more than one instance, if I am to believe his own account, his behavior must have been unmanly and cowardly in his sober moments, when there was nothing to prevent his having proper control over his passion. I think the respondent has made out a very substantial case of cruelty against her husband. Now the relief afforded by the Divorce Court is only given to those who appear on the whole to have fairly and honestly endeavoured to perform their part in the matrimonial contract. The decree of the Court is given for dissolution of marriage without any purpose of punishing the offender, solely to relieve one who is apparently blameless from an undeserved burthen. If this were generally known, perhaps much waste of this Court''s valuable time would be avoided, and the public spared the revelation of details such as has been made in this case, I feel it my duty, in the view I have taken of Mr. Gordon''s conduct, to refuse him the relief which he asks. If cruelty, which has once been affected by condonation, is ever to invoke the discretion which the Court possesses u/s 14 of the Divorce Act, it appears to me that the present suit furnishes an occasion for such exercise. Long years of conduct like that of Mr. Gordon was enough to drive any woman to desperation, and it convincingly shows me that the petitioner is unworthy of the interposition of the Court in his favor. Accordingly I dismiss the petition.