OFFER DIVORCE CASE.

Auckland Star, Volume XXVI, Issue 1420, 14 July 1884, Page 3

OFFER DIVORCE CASE.

Jn tho Supremo Court this morning, Mr Jttstico Gillies gavo judgmout as follows on tho petition of Mariannn Offer for divorce from her husband, William John Offer :—This is a petition for dissolution of marriage brought by a wife against her husband on tho ground of adultery accompanied by cruelty on his part. Dissolution of marriage, or divorce, as it is usually culled, may be obtained by a husband on the sole ground of the wife's adultery, but in the case of a wifo, she can only obtain a divorco by proving cruelty by hor husband in addition to his adultery. Why " sauce for tho goose" should not be " sauce for tho gander " also, I have never been able to understand, but such is tho law which I am bound lo administer. The husband has not, appeared to deny tho charges made against him either of adultery or enmity, but as tho ovidenco shows that lie has been desirous of getting free from his marriago bond, I do not, feci justified in inferring confession of guilt from his silence. I feel, therefore, bound to strictly analyse and weigh the wholly one-sided evidence given. The first quest-ion to determine is whether the evidence given proves that the husband has been guilty of adultery. Now. putting aside thoevidencoof tho woman Parker, I am bound to say that the other evidence, though proving very suspicious facts, does not afford satisfactory evidence of his adultery. That ho received women into his shop after his shutters wcro closed, but before his assistants had left, does not, in tho absonco of any evidence of who thoso women wcro, or of their character, necessarily imply adultory with them. Another suggestion mado on the evidonco of that ''cute" boy that women wero invited to his shop bctweon 1 and 2 in tho afternoon for tho purpose of committing adultery in a portion of tho shop divided oil' only by a curtain so as to form a ladies' measuring and fittingnnd show room, is so grossly improbable as to cast doubt on the other ovidenco ns to tho object of women visiting his shop in tho evening, especially aftor the indignant denial on oath of Mrs King. Tho only really suspicious occasion deposed to is that on which the gas was turned down on a woman's entry and ro-illuminatcd on hor departure. Thon as to his bringing women to his houso during his wife'sabssneo, and bringing thorn y.-hen sho was at homo, refusing to tell hor thoir names, there seems, in absonce of any ovidenco of who thoso women wore or of their character, to bo no ground for accopting that ns nioro than evidence of tho bad terms on which husband and wifo lived. The petitioner at least does not seem at tho timo to havo looked on these facts as suggesting any improper intimacy of her husband with theso women. So also in regard to the introduction and treatment of the "cousin." Although now evidently inclined to put the worst construction on tho cousinship, the petitioner evidently did not at tho time put a criminal construction on tho intimacy, otherwise she could not for a day have submitted to it, and in fact thore is no evidence to justify a belief that, criminal intimacy existed between thelmsband and the "cousin." (His Honor referred to tho evidonco that respondent had suffered from syphilitic disease.) Ho continued: But no evidence was given of tho nature of the medicines, injections, or lotions, or tho character of these eruptions on the children, which ovidenco might certainly have been easily obtained where an experienced detcctivo Was employed to get up the case. And in face ot the fact that cohabitation continued, and no disease was communicated to ths petitioner, I can only look upon such evidence as' padding' to the case, and at most a suggestion of the existenco of secondary symptoms, not referable to indicate conjugal infidelity. Thero is, however, direct, positivo, and unshaken evidence of the woman Parker. Had that woman's ovidenco ' been in any way corroborated, I could have folfc no doubt as to the conclusion I ought to arrive at as to tho husbands adultery. But in tho absence of corroboration, I am confronted with the grave question whether any married man ought to bo adjudged guilty of adultry on the unsupported testimony of any common prostitute who may come forward. It is I confess a startling proposition that such should be the case. As a lawyer and a judge I feel bound to reject the proposition, but in this case I am a juryman also, and as a juryman imparting my own knowledge of human nature, looking at the surrounding circumstances and tho demeanour of the witnoss, and connecting therewith, somewhat illogically I admit, tho suspicions created by tho other evidonco, I come to tho conclusion that I am satisfied that tho respondent was guilty of adultery unknown to and uncondoned by the petitioner. But the question of cruelty still remains. What constitutes legal cruelty is judgc-mudo law. There is no statutory definition of what shall constitute it, and indeed some of our greatest lawyers havo declared it to bo tindefinable and dependent on the circumstances of each particular case. I must therefore use my own judgment, aided by the opinions of eminent English judges, as to what ought to be considered cruelty sufficient, in conjunction with adultery, to warrant a divorco. The English authorities seem to show that the cruelty in addition to adultery necessary to warrant a divorco must be such as would, apart from adultery, entitle to a judicial separation ; and that, I think, is reasonable. What was the cruelty proved in this caso? No coarse brutal personal violence cortainly. On the petitioner's own testimony, in 12 years of marria"e life she was thrice struck with the fist and" once kicked, but on only one occasion showing a slight bruise on the arm, and only on one occasion did sho complain of it to her brother. Then there wore coarso, foul, and abusive epithets systematically applied to tho petitioner, and threats of actual violence. Thero was tho constant fault-finding of a woman apparently striving to do hor best to do her duty to and bo in harmony with her husband, but who ovidontly had spirit enough to "defend her children," and occasionally (if I mistake not hor demeanour) to resent his insults even whilst submitting to them. All those appear to have been submitted to_ until the Clowning wrong of the introduction of the " cousin" and the deposition of the wife from her legitimate position as head of the hi me ; and this a wife cannot, and I think ought not to forgive. As to the alleged cruelty, in causing her to apply surgical treatment to his person, I cannot regard that as cruelty, in the absence of evidence of tho disease from which he was suffering. His Honor entered at further length into this question, and continued : —Looking at the acts of alleged cruelty proved they go but a very little way over the line of what must necessarily happen from incompatibility of temper. The latter is not, even coupled with adultery, a legal ground for divorce, nor a ground for judicial separation. But I think that when a man systematically uses foul and abusive language to his wife, strikes her occasionally even in the course of a number of years, and frequently threatens her, and at least with the evident determination of driving her toextremeties, deposes her from the position of mistress of his household to which he promotes another woman whoever that woman may be, h. is guilty of cruelty sufficient to warrant in tho case of that only a judicial separation, and in case of that combined with proved adultery, to entitle the wife to divorce. I confess that I have had great difficulty in coming to this conclusion in the present case on account of the imperfection of the evidence on both branches of the caso ; but I think that I am administering the law as well ns doing right between the parties ill granting tho rule viA for dissolution of marriage. Rule granted, with cusls.