LIVING TOGETHER.

Waikato Times, Volume 98, Issue 15309, 9 August 1923, Page 2

LIVING TOGETHER.

BUT NOT SPEAKING. PARTIES IN COURT. HIS HONOUR'S JUDGMENT. "The grounds on which the ecclesiastical courts denied themselves jurisdiction in such a case appear to me to be sufficient justification for this court refusing to grant a decree in the cxeroise of its discretionary power," declared Mr Justice Hosking, at Wellington, when discussing a restitution of congugal rights petition. "This is not to say that if the circumstaacos proved continue until a p<:i"od of three years has elapsed the petitioner may not be successful in a suit founded on desertion, as indicated in Weldings' case" (quoting an earlier authority.) The suit was a decidedly unusual one. The petitioner alleged that on March Ist, 1922, the respondent withdrew from cohabitation with Mm, and over since had kept away witnojt just cause and had refused, and still refused, to render him conjugal rights. The respondent by her answer admitted that she had withdraws from cohabitation and refused to render him conjugal rights but asserted that she was justified in doing so on certain grounds set out in the n.vswe-*.

The hearing took place bei'ore a jury..

A Separate Bedroom,

The evidence for the petitioner showed that he and his wife and family were still living ;he. same roof in Wellington, but -she had refused marital intercourse from and after the date alleged. She "ad, in effect, ejected him from the bedroom; he now had to occupy a separate bedroom. They had not sp.iken to each other since October, and very -it-tie since the previous March. He had his meals by himself. Th 3 respondent continued to look after the hoise and the children, washed for him, cooked for him, and made his bed. The refusal of marital inter: mrs.? was the gravamen of the charg;. This was alleged by the respondent to be duo to her health. "As the evidence appeared to me to show that the parties Were actually cohabiting in the stricter sense of the term —that is, as opposed to marital intercourse," said His Honour. "I reluctantly put to the jury the issue whether the respondent had sufficient reason for her refusal, and the jury found that she had not. The petitioner now moves for a decree for restitution, but is met by Fielding v. Fielding.".- , "There the parties Were living m the same house and the wife charged the husband with having withdrawn from bed board, and mutual co-habitation with her, and refused to render conjugal rights to her." A decree was refused. The head-note to the report sums up the effect of the decision thus: 'The ecclesiastical court can only interfere in the way of restitution where matrimonial co-habitation is suspended. The simple duty which it can enforce by its decree in a suit of this nature is that of married parties "living together"; it cannot attempt to enforce any in superaddition to this Hence it is incompetent to the wife to sue the husband or the husband the wife for 'restitution of conjugal rights" pending co-habitation. On this ground the petitioner's suit must fail." , . Mr A. B. Sievwright appeared for Arthur Tew, the petitioner in the suit when the matter came before the court, and Florence Emily Tew, the respondent, was represented by Mr C. G. White.