THE LAW OF HUSBAND AND WIFE

Timaru Herald, Volume LII, Issue 5162, 8 June 1891, Page 4

THE LAW OF HUSBAND AND WIFE

Tho decision of the KnsiHsh Appeal Court m the Chtheroe easo, by which a man named Jucksou was told be bud no right to oipture and imprisin his wife for refusing to live with him, has ouused a tremendous sensation at Homo, imd is conaidiTcd by many lo have Hhnkeo tho very foundations of tho institution of matrimony. 'I he subordinate Courts interpret the judgment to mean that any woman can now leave her husband when she likes. Applications made by wives to magistral es for protection orders have boen repeatedly refused, on the ground that under the judgment of the Court of Appeal the remedy was m tho wife's hands, since she could st any timo leave her husband and could not be compellud to return to cohabitation or ba kept m any way under his control, lord Halsbury and Lord Eaher Beem aghast at these interpretations of their judgment, and have triad to minimise the effect. An opportunity was, as it seems, purposely given m m the House of Lords on April 16th, when the Earl of Winchilsea asked the Lord Chancellor whettier his attention had been called to statements by certain magistrates that m consequence of the decision m wh3t was known as the Olitheroo abduction case thoy would no longer make separation orders oi otherwise interfero for the protection of married women ; whether tho law, as laid down m that ca;o, had really such an effect as those statements seemed to import, and if bo whether the Government would propose legislation on tho subject. The Lord Chancellor (Halsbury) : In reply to the noble lord's question I beg to say that. I ha?e not myself seen the statements of magistrates which ho mentions, and I should bo unwilling to think any such reports could be accurate. Nothirjg is more inconsistent with the demeanour which becomes persons m judicial positions than to make general statements beforehand as to their views on olasses of cases which may come before them, and I should be reluotant to attribute to any magistrate, on the authority of a newspaper only, so erroneous an estimate of the law laid down m the ease referred to as almost to appear pervers-. Toe Court of Appeal released by this order n. person whom thsy held to be m unlawful custody. As to legislation, therefore, as tho noble lord aces, there is only ono point to be dealt with — wliethor or not a man may imprison his wifo'. lam sure that the Government will not propose a Bill to euib'e a man to imprison his wife ; nor, if they di 1 bring io such a. 8i11,, would the facts publislied m the recent application for a habeas corpus bo likely to assist them m passing it Lord Eshor : As I was a party to the judgment, which seems to havo been more misundfrstood than any judgment 1 recollect. I perhaps may bn excused for making an observation. It was urged before the Court of Appeal that by tho law of England a husbnnd may beat his wife with a stick if she refuses to obey him, and that if a wife rafused her husband conjugal rights— whatever that phrase may mean, which I have never been able to make out — ho may imprison her until she restores him conjugal rights, or satisfies him that she will. All tlißt the Court of Appeal decided was that a husband cannot, by the law of England — if the wif o objects— lawfully do eitherof those things. Those intellegent people who declared that thi! judgment is wrong must be prepared to main tain the converse — via., that if a wife disobeys her husband he may lawfully beat her, and if she refuses him a restitution of conjugal rights he may imprison her, it was urged, m the cellar or m the cupboard, or if the house is large, m the house by locking her m it and locking the windows. 1 thought, and still think, thai-, the law does not allow those things, a tia intelligent objectors say that by so holding we make a decree for the restitution of ftfojugal right* a farce, so that it h a farce to grant it, and that a magistrate ought not, or even cannot, give a protection order tn a wife. They may rest assored that the court did not hold any such nonsense. If tbcro is a difEoulty m enforcing a decree for restitution of conjugal rights, it is caused by the Legislature which lately took from the Divorce Court tho power of imprisoning a wife for contempt for' refusing to obey such a decree. But perhaps it may appear absurd to the intelligent critics Wo did not think that by taking awßy from •he court a power which the Legislature thought was oppressive and unnecessary, the Legislature meant to give to the husband the power of perpetual imprisonment which it took away from the court. VTo thought, and I still think, that the judge of tho I'iv. ree Court may grant a decree, and tho magistrate mny make an order, and that they need not attribute to the Court of Appeal decisions which, if they had read the decision, they would probably have seed that the Court of Appeal did not arrive at.