McKellar v McKellar (Divorce Cause No. 77 of 1955) [1956] EACA 28 (1 January 1956)

## **DIVORCE JURISDICTION**

#### Before HARLEY, J.

#### SHEILA GWENDOLYN McKELLAR, Petitioner

# JOHN MCKELLAR. Respondent

### Divorce Cause No. 77 of 1955

Divorce—Constructive desertion—Pleadings—Conduct not amounting to cruelty— Neglect of wife—Not justification to leave husband nor grounds for divorce.

A wife petitioned for divorce on the grounds of desertion—it was undefended. She alleged that it was necessary to leave the husband as he neglected her, and on occasion used abusive language. This affected her nerves but did not seriously impair her health and she did not plead cruelty. During the triennium maintenance proceedings were instituted but proved abortive. The petition was dismissed.

Held $(13-7-56)$ .—(1) That constructive described by setting forth the conduct leading to the walk-out and then stating that this conduct evinced an intention to bring cohabitation to an end.

(2) That neglect not amounting to legal cruelty does not entitle a wife to leave the matrimonial home and treat her absence as constructive desertion by the husband.

Buchler v. Buchler, (1947) P. 25 and (1947) 1 A. E. R. 319 followed; also Kaufman v. Kaufman, 23 Part II K. R. L. 52.

Cases cited: D. P. P. v. Beard, (1920) A. C. 479; Waters v. Waters, (1956) 1 A. E. R.<br>432; Dixon v. Dixon, (1953) 1 A. E. R. 910; Pike v. Pike, (1953) 1 A. E. R. 232;<br>Timmins v. Timmins, (1953) 2 A. E. R. 187; Russell v. Russell, (18 v. Edwards, (1949) 2 A. E. R. 145; Yealman v. Yealman, (1896) L. R. 1 P. & D. 489;<br>Lewis v. Lewis (1955) 3 A. E. R. 598; Edwards v. Edwards, (1948) 1 A. E. R. 157; Lang v. Lang, (1954) 3 A. E. R. 571.

Parry for the petitioner— $Ex$ parte.

**Reported** by: $-R$ . H. Lownie, Resident Magistrate,

JUDGMENT.—This is a wife's petition undefended. The parties were married in Nairobi in 1946 and the petitioner (wife) has been resident in Kenya ever since 1946. The petition is presented on the grounds that "about November, 1952, at Mombasa the respondent (husband) constructively deserted the petitioner and since that date the respondent and the petitioner have lived separate and apart from each other and in the premises the respondent has deserted the petitioner for three years and upwards immediately preceding the presentation of this petition". (Paragraph 8 of the petition.)

In my view it is not correct to use the term "constructive" desertion in a petition any more than it would be correct in a case such as the Director of Public Prosecutions v. Beard, (1920) A. C. 479 to charge the prisoner in an indictment with "constructive" murder. For the assistance as I hope of learned counsel and in similar cases I would propose pleading constructive desertion on the following lines. Firstly the conduct which led up to the petitioner walking out should be set forth, then the pleading should continue to the following effect: "By such conduct as aforesaid the respondent evinced an intention to bring cohabitation between the petitioner and the respondent permanently to an end and the petitioner was thereby compelled on the .... day of November, 1952,

to leave the matrimonial home at ... and has not returned to cohabit with the "respondent."

"That the respondent has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition to wit from and since the .... day of November, 1952, in the circumstances referred to in paragraph .... hereof."

As a general proposition constructive desertion by a husband may be established where he persists in spite of warnings by his wife of the probable effect of such conduct in a course of conduct which results logically or reasonably in the wife leaving him. I have considered *Waters v. Waters*, (1956) 1 A. E. R. 432 and the cases therein cited including the case cited to me by Mr. Parry, namely Buchler v. Buchler, (1947), page 25 and (1947) 1 All. E. R. 319. In my view those authorities establish that in constructive desertion cases it is not always necessary to prove actual intention on the part of one spouse to drive the other spouse away. If this is so it may be objected that it is incorrect or unnecessary to plead both that the respondent intended to bring cohabitation to an end and that his conduct compelled the petitioner to leave him. It might be urged that it is only necessary to substantiate one ground of justification or that if two grounds of justification for walking out are pleaded, then they should be pleaded in the alternative. However, I do not accept that a two-limb allegation of justification can be objected to merely on the grounds that one limb by itself might be sufficient to support it.

Is conduct in the nature of cruelty but not amounting in law to cruelty sufficient to justify one spouse leaving the other? The answer to this question in my view is not finally settled. Davies, J., in Dixon v. Dixon, (1953) 1 A. E. R. 910 made certain criticisms of Pike v. Pike, (1953) 1 A. E. R. 232. Timmins v. Timmins, (1953) 2 A. E. R. 187 also qualified Pike v. Pike. It still seems to me that the following passage from the judgment of Hodson, L. J., in Pike v. Pike (*supra*), at pages 233 and 235 carries, at lest in its context, unimpaired respect:—

" $\dots$ The danger in this class of case is that a person who is alleging constructive desertion without charging cruelty may be, in effect, making allegations of the character of cruelty which do not amount to cruelty, and, having done that, may come to the court and say: 'It is quite true I have made out no case on cruelty, but I have made out a case of constructive desertion, because the conduct of the other side was so bad that in the result there are grave and weighty reasons why I should not be compelled to live with him any longer.' But, of course, the real issue is whether the married life has been brought to an end by one party driving the other out, and...."

"I want to make it as clear as I can that when the case sought to be made is in the nature of a case of cruelty, it is not possible to build up a case of constructive desertion by what is really a case of unproved cruelty. That, of course, does not cover the whole area of constructive desertion, for grave and weighty matters might be alleged which are quite different in kind and quite as serious, if not more serious, than cruelty. One has in mind the well-known case of *Russell* v. *Russell*, (1895) p. 315 where false charges were made, persisted in, and not withdrawn, or, of course, one can take the simple case of constructive desertion where there is an order or direction by one spouse to the other to leave."

It may be that the above passage must be considered in the light of subsequent cases. In particular I am influenced by the following passage from the judgment of Denning, L. J., in *Timmins v. Timmins (supra)* at page $191:$ —

"In my opinion, domineering conduct comes within this principle, at any rate when it is such as to be likely to cause a mental breakdown. It may not be cruelty—it may fall short of that because of the absence of any intent to injure—but, nevertheless, it prevents the husband from getting a decree of restitution unless and until he satisfies the court that, if the wife returns, he will behave with conjugal kindness. He must get over his bad temper and cease to be overbearing. The refusal of the decree does not amount to a decree of judicial separation. It only means that at present the husband cannot insist on the return of the wife. But as soon as the court is satisfied that he will behave properly he will be entitled to it.

We were referred to Pike v. Pike, and in view of some comments made on it by Davies, J., in *Dixon v. Dixon*, I think that I ought to explain some of the things which I there said. In considering whether one party has good cause for leaving the other, much depends on whether the conduct complained of is of a 'grave and weighty' character or not. Conduct which is of a grave and weighty character may sometimes fall short of cruelty because it lacks the element of injury to health as in Russell v. Russell and Edwards v. Edwards. (1949) 2 A. E. R. 145 or because it lacks the element of intent to injure (as in the case of drunkenness or association with other women); but nevertheless it may give good cause for leaving, as the cases which I have cited earlier amply show. On the other hand, conduct which is not 'of a grave and weighty character' and is for that reason not cruelty, does not give good cause for leaving: see Yeatman v. Yeatman, (1868) L. R. 1 P. & D. 489. It is conduct of that kind to which I referred in Pike v. Pike when I said that conduct 'less than cruelty' does not justify a spouse leaving. In the present case the conduct of the husband was, I think, of a grave and weighty character, and the only reason why it was not cruelty was because there was no intent to injure. It comes, therefore, within the earlier cases to which I referred."

I do not myself see any inconsistency between Pike $v$ . Pike and Timmins $v$ . Timmins. In Pike v. Pike the husband's conduct falling short of cruelty was considered insufficient foundation on which to found a wife's petition for constructive desertion. In *Timmins v. Timmins* possibly the same degree of conduct by the husband was held sufficient, in answer to the husband's claim for restitution of conjugal rights, for the wife to justify her refusal to return. If a woman runs away and her husband asks the court to order her back she may plead in answer: "Your conduct deprives you of the right to force my return"; but it does not follow that the same conduct justifies the wife in initiating the attack by petitioning against her husband for desertion.

I have suggested that there are two limbs to the plea of justification:

- (a) The husband intended the wife to leave, i.e. he compelled her to leave by his conduct and the compulsion was deliberately exercised. - (b) The husband did not intend or expect his wife to leave, but his course of conduct was such as to make it unendurable for any reasonable selfrespecting wife and so to result in her walking out.

I have also suggested that in this second type of case the circumstances will enable the wife successfully to plead justification in answer to a petition but may not be sufficient for her to prove justification if she initiates the petition. I have referred to the two limbs of justification but it is more than possible that the two limbs belong to one body. In order to illustrate the train of thought I will try to sketch three aspects of one case, taking for example a case in which the husband's conduct results in the wife walking out from the home. Her action might have any of the following consequences: -

(a) The husband petitions for desertion or claims restitution of conjugal $(a)$ rights. The wife proves in answer that the husband's conduct was so impossible, although not cruel, that it would be unreasonable to send her back to him or to find desertion against her. The court finds in her favour (Dixon v. Dixon (supra), Timmins v. Timmins (supra)).

- (b) The wife petitions on the grounds of desertion. The court holds that she has failed to prove cruelty or any intent on the part of the husband to drive her out therefore she cannot succeed against her husband on the desertion issue (Pike v. Pike (supra), Buchler v. Buchler (supra), Lewis v. Lewis. (1955) 3 A. E. R. 598). - (c) The wife applies to a magistrate for a separation order. The magistrate makes the same finding of fact as in $(b)$ but nevertheless holds her entitled to an order (Waters v. Waters (supra), Edwards v. Edwards, $(1948)$ 1 A. E. R. 157).

With regard to result $(b)$ I am assuming that the court found not only that there was no formed intention by the husband to drive out the wife but there was no such "constructive" intention on his part. By "constructive" intention I mean the sort of unformed intention such as was referred to by Lord Merriman in Lang v. Lang, (1954) 3 A. E. R. 571 at page 580 in the following passage.—

"What, then, is the legal result where an intention to bring about a particular result (be it proved directly or by inference from conduct) coexists with a desire that that result should not ensue? That is the substantial point raised by this appeal. The issue may be put more concretely. What legal inference is to be drawn where the whole of a husband's conduct is such that a reasonable man would know—that the particular husband must know—that in all human probability it will result in the departure of the wife from the matrimonial home? Apart from rebutting evidence this, in their Lordships' opinion, is sufficient proof of an intention to disrupt the home: but suppose, further, a husband's hope is that in some way his actions will not produce these natural consequences, that the wife will stay and that the home will not be disrupted. Where a man's own actions are concerned and not their effect on another, the answer is easy. If he desires to resist temptation but yields to it his intention is evidenced by his acts. His better self is, it may be, overborne, yet, in the end, his intention is to yield. Where, however, the effect of his actions on other people is concerned, and there is no certainty but only a high degree of probability as to what the result will be, is a court to say that if he did entertain an unjustified hope that his wife would stay, the intention normally to be inferred from his acts is rebutted, and is the correct conclusion that he did not intend to drive her out? In their Lordships' opinion no such conclusion is justified. If the husband knows the probable result of his acts and persists in them, in spite of warning that the wife will be compelled to leave the home, and indeed, as in the present case, has expressed an intention of continuing his conduct and never indicated any intention of amendment, that is enough, however passionately he may desire or request that she should remain. His intention is to act as he did, whatever the consequences, though he may hope and desire that they will not produce their probable effect. To say that it is not enough unless he knows that separation must inevitably result from his actions is to ask too much. Men's actions and judgments are not founded on certainty—in most cases certainly is unascertainable—but on probabilities. No doubt a high degree of probability is required but no more."

As for result (c) I am not at all sure that the magistrates could find in favour of the wife unless they held that the husband "constructively" intended her departure. That, so it seems to me, is the probable interpretation of the decision in Waters v. Waters (supra).

Turning to the facts of the instant petition we find according to the wife petitioner that: $-$

"Only the first year of the marriage was really at all pleasant. He (respondent) was very much a sporting man and used to go out a lot and to all sorts of sports meetings and one thing and another. He used to drink an awful lot and sometimes he'd never come home at all at night and I wouldn't know where he was until the next day and he used to say he'd drunk too much to drive the car and had parked it by the roadside, and that sort of thing. That was in Nairobi. Down in Mombasa things got really worse from year to year and in Mombasa they got very bad and he was so afraid that I would let anybody know how miserable things were that he wouldn't let me speak to our friends by myself and he used to drink every time we went out. And when we got home at night I used to get to bed quickly because he would stand over my bed and shout and swear until about 3 o'clock in the morning. I couldn't stand it. He used to swear at me whenever he spoke to me and in front of the children and it was so dreadful for them to have to listen to him. He used foul—very, very foul language all the time. He never spoke to me apart from swearing at me in some way or other, because I wasn't able to sink to the depths that he'd got to. He just tried to make me do the things that he did and because I couldn't go down that far it used to annoy him, I suppose. I'd got very nervous about the whole thing and in the end one morning I had an excuse to go to Mombasa and I went to see Mr. Bryson to see what the chances would be if I could keep the children if I could run away, and I was so upset by the whole thing that I couldn't talk to him for about five minutes, and he said to go and see one of the doctors and see if he could give me a certificate to say that it wasn't right for me to live with my husband in this state any longer, which I did do. The doctor tried to give me some tablets to calm me down and when I got home and took them my husband was very delighted when he found out I wasn't behaving as brightly as usual. He thought I was sort of 'going back' and I got so frightened I didn't take them. After a couple of days I ran away."

Pausing there for a moment I ask myself what the petitioner meant by her description of the effect of the sedative tablets. She says, "When I took them my husband was very delighted when he found out I wasn't behaving as brightly as usual. He thought I was sort of 'going back' and I got so frightened I didn't take them." I get the impression that in this marriage whenever the husband showed a tendency to be brutal or to brawl the wife's reaction was to be brittle and to bristle in the home. That is why when she found that the tablets had a soothing and sedative effect on her normal brittle and bristling form of defence and counter-attack she herself "got frightened" while her husband "was very delighted".

Clearly the wife cannot establish cruelty if only for the reason that she has not pleaded it. There was no serious violence or effect on her health. Only one instance of actual violence is alleged by the wife against the husband, namely that he, the husband: —

"Did one evening get very drunk at a party and hit me with his hand in front of a lot of people, and after that, towards the end, he got so angry with me all the time. I didn't actually get hit—I managed to evade it."

The wife's undercurrent of complaint is that the respondent was more interested in sports and in drink than in his wife and his home. Her counsel has still grounds to argue that the husband's conduct was the cause of her having to leave the home. Without informing her husband she did in fact leave the home in November, 1952. She says: -

"At the time I did write and said I was sorry I had to take the step but I had warned him—warned him really over a period of many years, that I really had come to an irrevocable position and that I wouldn't come back and couldn't come back."

After some time she found herself in financial straits. In June, 1954, she started maintenance proceedings. Her advocate presumably had an interview with the husband. As a result the husband wrote the following letter: —

"Dear Sir.

12th September, 1954.

Herewith confirmation of our conversation of yesterday in your office. I shall pay my wife an allowance of Sh. 400 per month for the upkeep of my children Roderick and Duncan McKellar. As you suggest this allowance shall continue until further notice.

When Cdr. Stacey Colls returns from the U. K. I shall see him and request that this allowance be paid direct from my salary into Mrs. McKellar's account at N. B. I., Nairobi. I shall also request him to confirm this in writing to you.

> Yours faithfully, (Signed) J. McKellar."

On 17th September a Nairobi Resident Magistrate made a consent order in terms of the letter. It may or may not be relevant to note that the respondent in fact did not keep up the payments. The wife certainly merits sympathy, but I have to decide this case according to law. I have cited passages in evidence mainly from pages 3 and 4 of the transcript, but pages 5 and 6, and indeed all passages in the petitioner's evidence warrant equal consideration. If, hitherto in this judgment I have laid stress on the passages more favourable to the wife's case, nevertheless, I must qualify my view of the situation by considering the verbatim transcript as a whole and as if it were incorporated into this judgment as part of the finding of fact. The wife's evidence was presented with a truthfulness strongly tinged with bias. In other words she tended to emphasize what was worst in her husband and (naturally enough) to miss out his good points, unless they were directly put to her.

I have been asked by learned counsel in this case to apply the authority of Buchler v. Buchler (supra). I think that I can properly apply that authority to the facts of this case. For the purposes of this case I accept without qualification the principle laid down in the head note (to the report in (1947) Probate 25) namely: —

"Where a spouse who has left the matrimonial home seeks to establish that the other spouse has been guilty of constructive desertion, the conduct relied upon need not necessarily amount to a matrimonial offence, but must be of a grave and convincing character. As in actual desertion, so in constructive desertion it is necessary to prove both factum and animus—acts amounting to expulsion in fact, of such a serious character that an intention to disrupt the marriage can reasonably be inferred having regard, *inter alia*, to the principle that a person is presumed to intend the natural and probable consequences of his acts."

In the instant petition, as in *Buchler v. Buchler*, there were undoubted grievances on the wife's side, grievances possibly not unreciprocated. I would apply in the present case the law as applied by Asquith, L. J., in *Buchler v. Buchler* as laid down in the following passage at page $45:$ —

"The law applying to this case is, I feel, somewhat simpler than it has been made to appear at certain stages of the argument. In the first place it is common ground and a common place that the spouse who leaves the matrimonial roof is not necessarily the deserter. Constructively, the deserter may be the party who remains behind, if that party has been guilty of conduct which justifies the other party leaving. Secondly, to afford such justification the conduct of the party staying on need not have amounted to a matrimonial offence, such as cruelty or adultery. But thirdly, it must exceed in gravity such behaviour, vexatious and trying though it may be, as every spouse bargains to endure when accepting the other 'for better, for worse'. The ordinary wear and tear of conjugal life does not in itself suffice...

It is difficult to deduce from the decided cases any principle of law by reference to which it can be determined in every case on which side of this line the case falls. To say that the petitioner must establish conduct by the respondent which has made it 'practically impossible for the parties to live properly together' or which 'drove the petitioner out' is to propound a criterion too vague to be very helpful. It is, I think, possible to say of certain courses of conduct that they could not amount to constructive desertion, and of certain other courses that they could not fail to do so. This would appear to be a question of law, involving, as it does, the issue whether there was any evidence or no evidence to support the Judge's conclusion. But between the extremes indicated there is obviously a no man's land where the issue is one of fact."

In particular in the present case I would apply the following classic passage in the continuation of the judgment of Asquith, L. J., at page $47:$

"As to the second head of complaint, the husband cannot be absolved from neglect and want of consideration for his wife. But this is a charge which thousands of spouses could prefer against each other with abundant justification; but without any hope or prospect of securing legal relief as the ground of constructive desertion or otherwise. It may, no doubt, be galling or in some sense of the word humiliating—for a wife to find that the husband<br>prefers the company of his men friends, his club, his newspaper, his games, his hobbies, or indeed, his own society, to association with her, and a husband may have similar grievances regarding his wife. But this is what may be called the reasonable wear and tear of married life, and if it were a ground for divorce a heavy toll would be levied on the institution of matrimony."

Applying the authorities I have quoted, and in particular *Buchler v*, *Buchler*, to the instant petition I have reached the conclusion that there was no ill conduct on the part of the husband of a grave and convincing character such as would compel a self-respecting wife to walk out. In the result the petition must fail.