PETITION FAILS

Auckland Star, Volume LXX, Issue 80, 5 April 1939, Page 12

PETITION FAILS

SAIEK CASE.

CLAIM BY WIFE.

JUDGMENT GIVEN.

CRUELTY NOT PROVEN.

CAUSES OP TJNHAPPINESS

Dismissal of tho petition was the result of a lengthy reserved judgment in the Supreme Court to-dav in ihn rasp in which Queenie Amelia -Mavis Snick (.Mr. Leary) petitioned for judicial separation from her husband. Victor Snlek (Mr. Singer) on the ground of alleged cruelty. "The charge of cruelty i* not established, and the petition must j fail and is dismissed," said hk Honor after having traversed at» great length the evidence of t] K > relationships between the parties. "The petitioner fails •oemmo of what appears t v o me the inherent improbabilities of her case, and the unsatisfactory nature of the evidence by which it i« supported rather than because of the denials of tho respondent,'' he added. Religious Aspect. "The mrties were married in a Jewish synagogue in x cw York in the I f>2/when the Jiusbnnd was approximately .10 years of age and the wife approximately 20," said his Honor, outlining the history o f the marriage "The husband Iβ a .Tew. The wife hai some •re\vish blood hut belong to the Church <>I fcnpland, and though she casts some doubt on the regularity of her husband's a tendance at the synagogue, my conclusion from the whole of the evidence is that the respondent attaches importance to the requirements of the Jewwh reli-g-ion. "It is clear that his father, who was alive (lt the date of the marriage and at the date of the birth of Larita, the f der child, was an orthodox Jew; ami tho petitioner admits that she agreed i with her husband that during the lifetime of her father-in-law she would not openly practise her religion, and that line arrangement was not unconnected with financial expectations of the «on h-orn his father. The wife was an Australian, but tho matrimonial home of the parties was, from a few months after the marriage, in Auckland. Early Separations. "Within the first year of the marriage, the wife finding herself, to the knowledge of her husband, pregnant, arranged with him that she should go over to Australia to her parents. She ndmits that who misrepresented this' visit to him as a mere holiday, but that in truth she had come to the conclusion

that she could not live with him, nnd s™. ehe ne ver intended to come back. While she wa« in Sydney, she procured tlio pregnancy to he aborted without without the knowledge or consent of her husband. Afterwards, her husband came to Australia, a reconciliation followed, and she resumed life with him in Auckland. i '■'■■ • On several occasions ffir not inconsiderable periods, been'tway , from him nnd from the two #lrl children who were afterwards horn. Exactly what was the nature and quality of these various absences, has been much disputed between the parties] and-'I do not think it necessary to form or express any opinion as to that.

The Final Parting. "In September, 1037, tlio parties neparated by Deed, under which the wife was to receive £"> a week maintenance, white the custody and control of the children were* given to the'husband, with a provision for reasonable access to the wife. Within a few months thereafter, the wife wag urgently entreating the husband to resume familv life with her. J

It is plain that he went at least a considerable distance in considering this She says he finally agreed, and that on two separate evenings marital intercourse took pkee between them. This he demee, Immediately after the dates on which she says this happened, the wife went to Australia, with the encourage* ment of her husband, hi order to be with her own sister at the time df that msterg confinement. From Australia she wrote giving tin account, among other things of her amusements. The husband took strong exception to what she recounted. One of his complaints against her behaviour aft A wife is that she has in the past been indiscreetly flirtatious, and he alleges that her account of her Sydney doings showed that she had not changed, He therefore refused to go on with the proposed reconciliation, which he alleges had not been finally agreed upon* Start of Proceeding!. "Contrary to his expressed wish, the wife hastily returned from Australia in May, 1038. He refused to lire with her. In June, 1938, she intimated by letter from her solicitors that she no longer wished to live with him, but required her maintenance increased to £8 a week ahd an arrangement as to ncoess to the children whereby she would lmve them during half their school holidays and receive an extra £3 a week for each child, while with her, to cover their keep and travelling expenses. The husband, by his solicitors, refugee! to modify the provisions of the deed of September, 1937. "Jn August, 1038, the wife's solicitors •vrofce to the husband'* solicitors making causations of cruelty. They said it was Ith considerable reluctance that Mrs. ■'Irk- gave them the details of the farts, "!ipy intimated that in their view the -■'d had been avoided, that the matter -» at large and that tho Wife would oceed for a judicial separation. liming custody of" the children and a ■rii of maintenance 'adequate to the ■'tion in life which her husband Hiies.' ' This letter was, however, at the "Itipst of the wife's solicitors, withfid from the husband himself until Meantime some meetings! and ll'filssions hud taken place between the <nou*e«, of whK'h their accounts differ mid an to which it would. I fear, be very diflirult to any anything with '•oniplete confidence," except that they [nilwl to rompaee the differences. Then J" December, 1038, the letter written «i tlie previous August wa« relottsecl and ~ ti'-rjH proceedings were iwnmenwl, Mifl Honor pointed out tlmt tho wife BC.ti Hint the object of the proceeding WA* to obtain' ctUtndy of tho eliUcTri'ii, ;'- H was important to emphasise thai ! i.'-iIIHH .«i Wae i%k i,lci de»tal to the l ) OUon, and could ; .6nly be dealt with f

after she had established her right to a decree for judicial separation founded upon alleged cruelty.

Dealing with the cause of the petition, his Honor dwelt on what constituted cruelty as required to be proved for the

purpose, and pointed out that the wife's evidence and her letters showed an inconsistency with her claim, in that ehortiv

before this case commenced she was

making extraordinary efforts to have herself taken hack by her husband, and very nearly succeeded.

Touching on the evidence, his Honor said the husband developed the thesis that, his wife was the person at fault for the uuhappiness of their married life. Although he admitted that she had always been a person of good behaviour in the matter of sexual morals, he alleged that she had frequently been flirtatious in an indiscreet and "embar-

rassing manner. He also claimed that she was undnmesticated, uninterested in

and inattentive to the ordinary duties of wife and mother; that she was discontented and changeable. He repelled charges of domination and violence of temper made against him. and accused her of bad temper, and to giving way to bursts of unreasonable and undignified anger. "I have considered matters to which attention has been directed, but in the result I do not find myself reallv assisted toward the solution of the difficulty, ,, said his Honor. Attitude to Children. Tfe went on to say that consideration of the whole case did not establish that the petitioner had that steady, unwavering and passionate interest in and affection for her children necessary to presuppose, in the attempt to reconcile the evidence now given about her husband'with the letters she recently wrote to him. Commenting on evidence of outside parties -about the husband's conduct towards a guest at a launch party of whose attire he disapproved, his Honor said it no doubt confirmed an impression conveyed by many items in the casethat the respondent was a man very confident in his opinions and quite ready to express them and force them upon other people with dominance rather than tact. But even eo, that fell far short of what was required to find him guilty of cruelty to his. wife, and in matter's where their opinions seemed to have cashed the Court was not able to say t'lmt hie opinion was wrong. After further analysis of the evidence on this point his Honor commented on the general improbability of the fttory told agauwt the respondent, stressing r«™ f aCt . ?', Ht f he •P e ««°n« , 's mother remained friendly to him. and that it was admitted that the husband wa* in money matters.a generous husband and an attentive and affectionate father. The Summing Up. •7 P "JIV, " P, " """tinned the learned .lUdgp, this marriage has been in the end a failure, and it is not, in my view unfair to the respondent to conclude that he was unwisely dominant and Chat he sought to dictate to a decree and in matters not now usual between husband and wife; also that he was moody and liable to bursts of quick temper. It may even be true that he lias at times, under provocation, but witliput doing any physical injury whatever to the wife, laid his hands upon her. But it must also be concluded that the wife herself was not perfect; that she was changeable, irresponsible, somewhat indiscreet, not domesticated and herself of uncertain Jemper. TJi r is pair seem to have been an ;taany wiiys different, to ltave been different in their tastes, different in their habits and different in their outlook on life. "It was a ease in which mutual forbearance was particularly necessarv but unfortunately appears to have bee'n. less tJian usually present. In the result, despite their affection for each other this marriage has been a failure. I suspect that the husband? more than the Wife, took a serious view of those duties which are inseparable from the married state and from parenthood. Though he may have been moody and at times" very difficult- I think he was capable-of great "Somewhat Incompatible; ,, "To account for the failure of this marriage, there is no need whatever to fall back upon an improbable theory that he lias been cruel to ?iis wife. It is much more likely that they were from the first somewhat incompatible, and that there never has been any suffix gently intelligent and constant effort by them to become compatible, and that in this the wife failed as much as the husband. The charge of cruelty is not established, and the petition must fail and is dismissed.'*

His Honor incidentally indicated that his view of the evidence satisfied, him of the integrity of Mr. Ready and Mrs. Bicrnackl in their evidence. Mr. Ready appeared to have acted throughout with propriety and humanity.

At the request of Mr. Leai;y the question of costs was reserved for argument Inter*