ORDER REFUSED

Waikato Times, Volume 126, Issue 21056, 7 March 1940, Page 6

ORDER REFUSED

RESTITUTION SOUGHT RESPONDENT WITH TROOPS JUDGE’S RESERVED DECISION The view that it would be futile to make an order for restitution of conjugal rights against a soldier away on active service was expressed in a reserved judgment delivered by Mr Justice Blair today. The judgment arose from a case heard on February 15 last, during the quarterly session of the Supreme Court in Hamilton, when Gertrude Olive Jefferies Johansen, of Waipukurau (Mr N. S. Johnson), proceeded against Eert William Johanson for restitution of conjugal rights. During the hearing petitioner said that in September of last year she received a letter from respondent saying that he was going into a military camp. At the time 6f the hearing she understood that he was with the New Zealand troops in Egypt. Mr Johnson suggested that if His Honour would make an order, respondent should be given four months from the date of service to signify that he would return to petitioner at the close of his military service. His Honour reserved his judgment to enable him to meet other judges on the matter. In the reserved judgment His Honour stated that the petition was in order, and the papers were duly served on respondent, but no answer was vied by respondent. Special Order Requested Continuing. His Honour stated that he had said at the hearing that had the case been an ordinary one where respondent had not left New Zealand and was available, an order for restitution would probably have beer issued. Reference was made at the hearing of another case in which a judge made a special order on an enlisted soldier who was in New Zealand at the time. In that instance the judge made the order so that respondent, If he were willing. would have ample time and opportunity to obey the ruling. In the case which was the subject of the reserved judgment, continued His Honour, he was asked to make an order which would be so framed that a mere intimation of willingness to comply when the soldier-respondent returned to New Zealand would be deemed as compliance. Also asked for was the additional condition that failure to express such willingness would be regarded as respondent having ignored the order. No Opportunity to Comply “If I deemed it proper to issue an order it would have had to be framed to make it operative only after service in New Zealand after the soldier’s return from overseas, or after his discharge from the army,” continued His Honour. “However willing he might be, a soldier on active service has no opportunity to comply with an order for restitution, and neither is he his own master at the time. His life is regulated by the exigencies of the service.

“Therefore, it would be futile to issue an order, and I think it would not be fitting to the dignity of the court to make an order not designed to secure obedience to it, but designed for another object altogether. Ac(V*dingly, I refuse to make any order.”

His Honour added that he had never had any doubt as to the course he should adopt in the case. However, because a question of status might be involved he thought it desirable to confer with some of his brother judges as to the practice that should be followed in such cases. They confirmed the view that he had expressed. •