Gollins v Gollins [1963] UKHL 5

House of Lords
Between
GollinsAppellantGollinsRespondent
Before
Lord ReidLord EvershedLord Morris of Borthy-GestLord HodsonLord PearceDate 27 June 1963

v. COLLINS (A.P.)

Lord Reid

Lord

Evershed

Lord

Morris of

Borth-y-

Gest

Lord Hodson

Lord Pearce

27th June 1963 Lord ReidMy Lords,In 1961 the Shropshire justices made an order that the Respondent be no longer bound to cohabit with the Appellant, her husband. This order was made because the justices found that he had been guilty of persistent cruelty to her. On appeal a Divisional Court (Sir Jocelyn Simon, P. and Cairns, J.) made an extensive and valuable analysis of the authorities and held, chiefly on the authority of Kaslefsky v. Kaslefsky [1951] P. 38 and Eastland v. Eastland [1954] P. 403, that the facts proved did not amount to cruelty. Their decision was reversed by the Court of Appeal (Willmer and Davies, LJJ., Harman, L.J. dissenting).We have before us notes of evidence given before the Ludlow justices and a note of their reasons. Both are admirably prepared, but they cannot be a full equivalent of a transcript of evidence and a judgment in the High Court. So it is even more necessary for us to be cautious in attempting to substitute a different view of the facts from that taken by the justices. In this case I think I might have taken a different view of some of the facts but I do not find any sufficient grounds for rejecting the view of the justices: it may well be that if I had seen the witnesses and heard the whole of the evidence I would have agreed with them. So I shall state briefly the facts as they appear to have presented themselves to the justices.The parties were married in 1946. They were then aged 43 and 38. There are two daughters born in 1947 and 1949. The husband owned a farm but he was unsuccessful and ran into debt. He sold the farm in 1957 and bought a house at Church Stretton. His wife had given or lent to him considerable sums and he transferred the house to her. The wife has carried on the house as a guest house for elderly people. The husband did little or nothing to help her in running the house: if he had chosen to do so he could have obtained paid employment but he did not do so. He spent a good deal of time and money in trying to invent agricultural machinery, but the justices appear to have regarded this as a mere excuse or as a selfish indulgence. He was incorrigibly and inexcusably lazy, and that has been at the root of the whole trouble. She was an active and capable woman and with little assistance she earned some £25 per week from the guest house, but this was little more than enough to meet expenses. I accept the view of Harman, L.J. that " all that he had done is to hang up his hat " in the hall". He was being constantly dunned by creditors. She was alleged to be liable for some of his debts—it is not clear why. But certainly creditors were trying to make her pay and she did pay some of the debts.There was never any suggestion that he was deliberately trying to hurt her or that there were any violent quarrels. She does say that her husband was arrogant and bigoted and not a mild man and did not think of anyone else but himself. But the evidence shows that what worried her and made her ill was his refusal to try to help her or to earn money and clear off his debts. She says:
" Many times people have come to the " door seeking my husband because of long standing debts and also the "
County Court bailiff has been to the door many years. This has worried " me to death and I cannot stand any more of it". It would seem that she would have been quite content if she could have put him out of the house and continued to maintain herself and her children without being troubled by him and his creditors. She did refuse to cook for him or do anything for him and he left for a time but came back again. First she tried to get a non-cohabitation order without alleging cruelty, but then30874 A2her health began to be affected and she brought the present proceedings. It is true that he did obtain paid employment for a while but the justices apparently did not see that as a sign of genuine reform.So we have a normal, active and capable woman against whom nothing is said brought to a state of health when she can no longer earn her living or maintain her children solely by the shiftless and selfish conduct of her husband. We must take it that the justices found that he was well aware that his conduct was reducing her to a physical and mental state where she would no longer be able to maintain herself or their children, that if he had chosen to behave as any decent minded man would this could easily have been avoided, but that in spite of his awareness of the consequences he chose to continue to sponge on her in selfish idleness. The question is whether the law of England requires that these two shall continue to live together and would regard her as guilty of the matrimonial offence of deser- tion if she left him. If that is the law, then she must be told that it is her legal duty as a wife to sink into poverty and ill health and become with her children a charge on the State. But does the law not permit us to say that such conduct in such circumstances amounts to persistent cruelty?No one has ever attempted to give a comprehensive definition of cruelty, and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health. So I shall first exclude the kinds of case with which I am not dealing, with the caveat that much of what I am going to say may not apply to them. First I exclude cases where the respondent acted with a desire or intention to hurt. That kind of case was dealt with in Jamieson v. Jamieson [1952] A.C. 525, and I need say no more than that if one spouse sets out to hurt the other and causes injury to health the means whereby that happens can hardly matter. Then there are difficult cases where the conduct complained of would have caused no damage to a spouse normal in health and temperament, but that does not arise here because this wife was a normal, healthy woman. And there are other cases where the offending spouse suffers from some mental abnormality. The next case which we have to decide, Williams v. Williams, is such a case, and I shall not anticipate what I have to say there. With such cases I associate cases where the offending spouse is too stupid or obtuse to realise the effect which his conduct is having on his wife or her husband. In the present case there is nothing in the husband's condition to palliate his conduct and he must be regarded as fully responsible for it. And no question arises here of the guilty spouse having been provoked in any way.This appears to me to be a plain, uncomplicated case of a husband fully responsible for his conduct, knowing that it was injuring his wife's health and yet persisting in it, not because he wished or intended to injure her but because he was so selfish and lazy in his habits that he closed his mind to the consequences. The facts of this case appear to me to go well beyond the ordinary wear and tear of married life—adopting Lord Asquith's phrase in Buchler v. Buchler [1947] P. 25. So the question must be whether the husband's conduct was of a kind which can in law be called cruel and whether the law requires an intention to injure before there can be cruelty.I shall not make any extensive examination of the authorities now. I intend to look at a good many in Williams's case and I understand that others of your Lordships will do so in this case. Sometimes a distinction is drawn between conduct which is and conduct which is not cruel in itself. That distinction has some validity. Where, for example, there is physical violence of a grave and weighty kind there is no need to look further, as I shall try to show in dealing with Williams's case. But more often the conduct must take its colour from the state of mind which lay behind it. Sometimes it is said that the matter can be left at large: that although you cannot define cruelty you can recognise it when you see it: and that therefore the trial judge should not be hampered by legal niceties and refinements. But that appears to me to be placing too great a burden on the trial judge and to be likely3to lead to a multitude of appeals: for without further guidance borderline cases, which are numerous, will make a different impression on different minds, and moreover a judge must give reasons—he cannot just say " I think " that these facts prove cruelty ".Nevertheless, I would try to reduce tests, rules and presumptions to a minimum. A judge does and must try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.In the present case I think that the Divisional Court went wrong because they proceeded on the authority of Kaslefsky's case. They are in no way to blame for that because they were bound to follow it. But I do not regard Kaslefsky's case as a good guide, so I must now examine it and its implica- tions. As was inevitable in the existing state of the law, that case was argued and decided in an atmosphere of phrases and presumptions more picturesque than of easy practical application. The trouble began in a way which was not uncommon. The husband after the birth of his son went abroad for two and a half years on war service. While he was away the wife told him she wanted her freedom. She and the child were living with her mother and he returned to her there in April, 1946. She was lazy and sluttish and left much of the care of the child to her mother and then to her husband. She refused sexual intercourse and there were some quarrels about the child ; and after a couple of years he met another woman and went off with her. Then he tried to get a divorce for cruelty. There was some evidence of injury to his health, but it was not clear that that was really caused by his wife's conduct. There was nothing to shew that she knew or must have known that her conduct was injuring his health, or that the real cause of his leaving her was that he could not stand her conduct any longer. There was some evidence of failure to treat the child properly but nothing that I would regard as cruelty. On any view of the law I would think that cruelty had not been proved.The case was decided by the learned Commissioner on the ground that there was " no evidence before me that those acts were what are called inten- " tional acts or aimed specifically at the husband ". In the Court of Appeal the eminent Counsel engaged could not do other than take the familiar line: " The husband's health was not injured merely by the natural development of " the wife's character but by her wilful and unjustifiable conduct towards " him ... a spouse must be presumed to intend the natural and probable " consequences of his or her own acts ... it is not necessary ... to prove that " the respondent intended to be cruel, provided that her intentional acts " amounted in fact to cruelty "; and then they argued that the test of " in " some way aimed at", first introduced in Westall v. Westall, 65 T.L.R. 337, was obiter and inconsistent with Squire v. Squire (1949] P. 51.Bucknill L.J., with whom Somervell L.J. agreed, said (at p. 44):
" I venture " to think that that is one of the tests which has to be applied: is the conduct " of the wife, unless done for the express purpose of injuring the health of the " husband, innocent in the sense that it is justified or justifiable under the " circumstances? In cases such as refusal of sexual intercourse, or sheer " laziness, or neglect of a child, I think that is conduct which is innocent, so " far as any charge of cruelty is concerned, unless it is done for the express " purpose of causing injury to the health of the complaining spouse "
. That appears to me to go much too far, but I need not develop the point because in the next paragraph he appears to me to have watered it down by agreeing with what Denning L.J. had said in Westall: "... intention is an element in " this sense, that there must be conduct which is, in some way, (my italics) " aimed by one person at the other ".Lord Denning elaborated what he meant by " aimed at ". First it included " action or words actually or physically directed at him ". I am not at all sure what this is meant to include. Suppose a husband speaks derogatory4words to a third person in his wife's presence. They are physically directed at her: they impinge on her ears. But in Kaslefsky's case it appears to have been accepted that cruelty to a child in the mother's sight and presence is not aimed at her unless done with the express purpose of hurting her. And I cannot think that speaking derogatory words to a stranger can be cruelty if brutality to the child is not. So this test seems too vague to be satisfactory.Then Lord Denning deals with cases where there is only " misconduct " indirectly affecting him or her, such as drunkenness, gambling or crime ". Then he says there must be in some part " an intention to injure the other " and inflict misery on him or her ". But he goes on to say:
" Such an " intention may readily be inferred from the fact that it is the natural " consequence of the conduct, especially when the one knows, or it has been " brought to his notice what the consequences will be, and nevertheless he " does it, careless and indifferent whether it distresses the other or not"
. There are many cases where such an inference is justified but there are many where it is not. The drunkard may know, at least in his sober moments, what damage he is doing to his wife. The gambler sees his wife and children deprived of proper food and clothing. But it must be a rare case where either desires or intends to hurt his wife.Why should we have to drag in intention at all? It seems to me a very poor defence to say:
" I know the disastrous effect on my wife of what I " have been doing. Probably I could have resisted temptation if I had " really tried. But my conduct is innocent because I had not the slightest " desire or intention to harm my wife. I have acted throughout from pure " selfishness "
. And the evidence may make it quite clear that he had no intention at all of causing pain to his wife. If he knew, or the evidence shews that he must have known, the effect of his conduct, if there was no justification or excuse for it, if the effect was really serious, if the wife was not unusually sensitive and he had not reached the stage of mental disorder, why does intention matter? As I have said, I am not dealing with cases where the wife from illness or temperament cannot stand what an ordinary woman could be expected to tolerate, or where for any reason the husband's responsibility is diminished. I am dealing with cases like this case where nothing of that sort can be said. If it can the case becomes much more complicated. And I wish to make it quite clear that I am not criticising Lord Denning. Sitting in the Court of Appeal he was bound by a host of authorities which do not bind us. Probably his attempt at rationalisation went as far as he was entitled to go, but I do not think that anyone would say that the present state of the law is satisfactory. I shall try to explain why I think that is so." Aimed at" is a phrase in ordinary use understood by everybody. If you aim at something you intend to hit it and if you hit something un- intentionally you have not aimed at it. Intention is a state of mind. You cannot see into other people's minds but ordinary people have little difficulty in inferring intention from what a man does and says viewed in light of the circumstances. Juries deal daily with the burden of proof of intention, whether it has to be proved beyond reasonable doubt or on a balance of probability. And a man can intend to kill two birds with one stone.If it were the law that an intention to hurt is a necessary element in cruelty there would be no difficulty in theory. The only difficulty would be to evaluate the evidence and decide whether the burden of proving such intention had been discharged. But no one now supposes that that is the law. Everyone agrees that something short of proof of actual intention will do. If the test is that conduct must be " in some way " aimed at the petitioner I must admit that I find that difficult. In real life either you are aiming at something or you are not: in law either you have proved an intention or you have not. But aimed " in some way" takes us into a region where you assume or presume an intention which has not been proved because it cannot be inferred as a fact from the evidence. But you do not treat a presumed intention as equivalent to a proved intention. Jamieson's case shews that a proved intention to hurt can make conduct5cruel where a mere presumed intention would not. Presuming an intention which has not been proved as a fact causes such confusion that I will with your Lordships' permission, deal with this matter in some detail.Sometimes it is said that a person must be presumed to have intended the natural and probable result of what he did. That, if taken literally, must mean that it would be irrelevant to prove that in fact he did not intend that result: it would introduce a purely objective standard not depending at all on the state of his mind. In fact people often intend something quite different from what they know to be the natural and probable result of what they are doing. To take a trivial example, if I say I intend to reach the green people will believe me although we all know that the odds are ten to one against my succeeding; and no one but a lawyer would say that I must be presumed to have intended to put my ball in the bunker because that was the natural and probable result of my shot Irrebuttable presumptions have had a useful place in the law of tort in facilitating the change from a subjective to an objective standard. For a long time it was thought that, at least in theory, intention or mental state of some kind was a necessary ingredient in negligence. But life would be impossible in modern conditions unless on the highway and in the market place we were entitled to rely on the other man behaving like a reasonable man. So we now apply a purely objective standard. The other man may have been doing his best and he may not realise that his best is not good enough, but if he causes damage by falling short of the ordinary standard he must pay. In matrimonial affairs we are not dealing with objective standards, and it is not a matrimonial offence to fall below the standard of the reason- able man (or the reasonable woman). We are dealing with this man and this woman. There appears to be no recent authority which expressly approves an irrebuttable presumption in such cases, so I pass to the next stage.What is most often said is that there is a presumption in cruelty cases that the respondent intended the natural and probable results of his conduct, but that that presumption can be rebutted. That is equivalent to saying that proof of the natural and probable consequences transfers the onus of proof so that now the respondent must prove that he did not intend that result. I suppose that on this theory the respondent would have to produce evidence, including his own, sufficient to shew that on a balance of probability he did not intend harm to the petitioner, and of course it might be more difficult to prove that he did not intend a likely result than to prove that he did not intend an unlikely result, but quite often he could prove it. A person accused does not have to prove his defence beyond reasonable doubt. I think that Lord Denning must have had something of this kind in mind when he said that such an intention " may readily be inferred ". But in many authorities the objective test seems to persist. In the present case Willmer, L.J. stated the propositions of law which he deduced from the decided cases. He said " there must always be some element of intention " in relation to the impact of the conduct complained of in the other " spouse . . . such an intention may in a proper case be inferred where, '' for instance, the conduct complained of is persisted in ... in circumstances " in which any reasonable person would appreciate that it was likely to " injure the other spouse. For any spouse may be presumed to intend the " natural consequences of his own behaviour ". That seems to me to be very vague. I do not blame Willmer, L.J. because he was trying to sum up the authorities and it is impossible to reconcile a good deal of what has been said in the various decisions. But what is " a proper case " and when " may " the presumption be applied? This is as vague as " in some way " aimed at " It is said that although this is not a definition it is a useful yardstick. But it is a very elastic yardstick, and practical people do not use elastic yardsticks except perhaps for nefarious purposes. All this seems to me merely to distract our attention from the real problem.It appears to me that the time has come to decide whether or not intention really is a necessary element in cruelty. I shall have more to say about that in Williams's case. If it is a necessary element, then we must go by the evidence. If the evidence shews, as it often does, where the respondent is30874 A36obtuse and selfish, that it is extremely improbable that he had any real intention to hurt his wife, then we must either refuse a remedy or say that something else will do instead. Judges, bound by the existing state of the law, have shewn much ingenuity where justice demands a remedy but where it is extremely improbable that the respondent had any intention to cause harm. The objective test of what a reasonable man would have had in mind slips in—though it is quite obvious that no reasonable man could have behaved as the Respondent did. Once we say that the state of this Respon- dent's mind does not matter, and proceed, against the weight of evidence, to attribute to him an intention which he did not have, we base ourselves on a fiction and that is bound to lead to trouble. However useful fictions may have been in the past in other branches of the law, they seem to me both unnecessary and confusing in this realm of cruelty. I must pay this tribute to learned judges in recent years: in spite of the difficulties created by all these artificial tests, there are very few reported cases where they have not been circumvented when justice required that. Indeed, the only decision cited to us which on a more direct approach would seem to be wrong on the facts is Eastland v. Eastland [1954] P. 403, where the test in Kaslefsky was applied too literally. With regard to other decisions, a few may be doubtful, because sometimes the full facts do not emerge very clearly. I must, however, say a little about Lang v. Lang (1955] AC 402 . It is not an easy case. There had to be an agreed single judgment and such judgments are not infrequently obscure. The husband was undoubtedly cruel. But cruelty was not a ground of divorce in Victoria and it was necessary to establish constructive desertion. The Act required that " the respondent has " without just cause or excuse wilfully deserted the petitioner ". So the ques- tion was whether the constructive desertion was " wilful "—whether there was animus deserendi. A great deal was said about intention and presumption, but as I read the judgment the facts were quite simple. The man deliberately ill-treated his wife. He knew that this was likely to cause her to leave him but he desired or hoped that she would not leave. He did not act with the intention of driving her out, but he acted with the knowledge that that was what would probably happen. There are references to what a reasonable man would have known ; but it is said that this man must have known, which I take to mean that it was proper to hold on the evidence that he did know. So in the result his desire to keep his wife or lack of intention to drive her out was irrelevant. The Act said nothing about intention: it used the word " wilful". So the decision was that if without just cause or excuse you persist in doing things which you know your wife will probably not tolerate, and which no ordinary woman would tolerate, and then she leaves, you have wilfully deserted her, whatever your desire or intention may have been. That seems to me to be in line with what I am now submit- ting to your Lordships is the law in cases of cruelty.I shall now re-state briefly the result at which I have arrived. If the conduct complained of and its consequences are so bad that the Petitioner must have a remedy, then it does not matter what was the state of the Respondent's mind. That I shall develop in Williams's case. In other cases the state of his mind is material and may be crucial.Jamieson's case deals with deliberate intention to cause suffering, and Kelly v. Kelly L.R. 2 P. & D. 59, shews that a groundless belief that such conduct is justified is no defence. I do not have to deal with cases where the petitioner is partly at fault or cases like King v. King [1953] A.C. 124. Nor do I have to deal with the very difficult class of case where from illness or temperament the petitioner is unduly demanding or unusually sensitive.I am dealing with a spouse normal in mind and health who has been reduced to ill health by inexcusable conduct of the other spouse persisted in although he knew the damage which he was doing. These matters must be clearly proved. For reasons which I have given I must hold that they have been proved in this case. They appear to me plainly to establish persistent cruelty. I am therefore of opinion that this appeal should be dismissed.7

Lord Evershed

My Lords,I concur with the opinion which my noble and learned friend, Lord Reid. has just expressed and think accordingly that this appeal should be dismissed. My Lords, I am disposed to agree with the view of Davies, L.J. in the Court of Appeal that the Respondent's claim might colloquially be described as a " thin case ". But the matter in issue being essentially a question of fact, one considerable difficulty presented to the Appellate Courts and, now. to your Lordships' House emerges from the fact that no full note was taken of the evidence given before the magistrates, nor did the magistrates express their conclusion in the form of a reasoned judgment. There was available to the Divisional Court and to the Court of Appeal and there is now available to your Lordships only a brief record of the proceedings before the Shrop- shire Court taken, in accordance with the normal practice in such cases, by the clerk to the magistrates. Certain reasons were, however, clearly formu- lated for the Magistrates on the 5th October, 1961, and in the circumstances I have thought it proper and helpful to set out in terms the first five of such reasons. They were as follows: —" (1) That at the time of the marriage the husband was heavily in " debt, unbeknown to the wife, and that throughout the marriage the " husband has not made any real or sustained effort to repair his " financial situation; but on the contrary has involved his wife in his " financial affairs to her detriment;" (2) That since 1957 the husband, in spite of his wife's pleas for " him to do so, has persistently and wilfully refused to undertake paid " employment, and that he has not made any real effort to support " his wife and children ;" (3) That the constant worry and anxiety over the husband's debts " and his wilful refusal to get work has seriously affected the wife's " health, and that she has good reasons to fear permanent impairment " of her health, which would affect her capacity to keep herself and her " two daughters." (4) That in September, 1960, the wife told the husband that she " could no longer stand the strain imposed by his behaviour;" (5) That apart from the complaint of the wife, the husband should " have known that his conduct was having a serious adverse effect on " his wife's health. We are satisfied that any reasonable man would " have appreciated this, and that the husband must have known that a " continuance in his course of conduct would have an injurious effect " on his wife's mental health ".In their sixth reason (which I can properly summarise) the magistrates stated that they rejected entirely Mr. Gollins's submission that what he said he had done in looking after the garden and the poultry at the matrimonial home at Rivenhall was a fair and proper contribution on his part. They conclude by the statement of their view that it was the " clear duty " of Mr. Gollins to make a real contribution to the support of his family and that " his failure to do so was the direct cause of his wife's ill health ".Having regard to the terms of their recorded reasons as well as to the record of the evidence which on two occasions the magistrates heard (and 1 do not forget that the magistrates had the great advantage of seeing and hearing on both occasions both Mr. and Mrs. Gollins), I agree with my noble friend, Lord Reid, and with the majority of the Court of Appeal in thinking that no sufficient grounds have been shown for disabling the conclusions of fact reached by the magistrates or for holding that the magistrates in any respect misdirected themselves in regard to the law.The facts of the case which have been rendered available to your Lordships have been fully stated in the Opinion of Lord Reid and I do not repeat them. It is not in doubt, according to the express conclusions of the magistrates, and has indeed not been disputed, that as a result of the conduct of her husband to which she has been subjected, the health of the Respondent has8been substantially affected, so that the essential requirement for the establish- ment of a charge of cruelty, according to the decision of your Lordships' House in the case of Russell v. Russell ( [1897] AC 395 ) has been satisfied. It also clearly appears that the Respondent was and is a woman of (at least) normal health and intelligence. She was before her marriage a trained nurse and, having regard to her age (namely 39 and 41) at the time when she respectively bore the two children of her marriage, her physical stamina must have been certainly no less than average. She was also fortunately possessed of some private means, though it is clear that her resources have now been wholly involved or expended in relief of her husband's indebted- ness or its consequences. She discovered shortly after her marriage that her husband, then a farmer, was in fact in grave financial difficulties. His farm was sold and the Respondent has since maintained the home not only for her husband but for herself and her two children of the marriage by carrying on, without any help whatever, financial or otherwise, from her husband a guest house for elderly people. In so doing she has been from time to time gravely embarrassed by the claims of the creditors of her husband, who has never made the smallest contribution to her home, or to the maintenance and up-bringing of the two children ; and it is now indeed apparent that, if she is denied the relief which she has claimed, she will be incapable of further maintenance of the home for herself and her children and, as my noble friend has stated, will " sink into poverty and ill health " and become with her children a charge on the State ". It may, therefore, fairly be said (if these conclusions of fact are justified) in the words of Sir William Scott in the old case of Evans v. Evans (1 Hag. Con. 35) that her husband's conduct is " such as to show an absolute impossibility that " the duties of the married life can be discharged " ; or at least in Lord Normand's language that Mr. Gollins was guilty of " unwarranted " indifference " to the sufferings of his wife.It was, however, the view of the Divisional Court, as expressed by Sir Jocelyn Simon, P., that there was no evidence showing that the husband's conduct, however selfish and irresponsible, was " aimed at" his wife in any sense and that therefore on the authority particularly of the case of Kaslefsky v. Kaslefsky ([1951] P. 38) the Respondent's charge of cruelty could not be sustained.My Lords,like my noble friend, Lord Reid, I must not be taken to be casting doubt upon the correctness in fact of the decision of the Court of Appeal in the Kaslefsky case, but (also like my noble friend) I am, with all respect to those who take or have expressed the opposite opinion, unable to accept the view that in order to satisfy a charge of cruelty in a matri- monial cause it must be shown that the conduct of the spouse charged was in some real sense "aimed at" the other party to the marriage. Such a view has, as I understand, emerged from the premise that " cruelty " in matrimonial contests involves essentially a quality of malignity in some sense on the part of the spouse charged. Upon this premise appears to have depended, naturally enough, that there must have been some intention to injure the other party, in other words that the conduct of the party charged (whether positive or active on the one hand or, upon the other, indifferent, selfish or negative) must in some sense have been " aimed at" the other spouse. My Lords, for reasons which I more fully give in my Opinion in the case of Williams v. Williams, I am unable to accept the premise that " cruelty " in matrimonial proceedings requires or involves of necessity the element of malignity—though I do not, of course, doubt that if malignity be in fact established it would be highly relevant to a charge of cruelty. In my opinion, however, the question whether one party to a marriage has been guilty of cruelty to the other or has treated the other with cruelty does not, according to the ordinary sense of the language used by Parliament, involve the presence of malignity (or its equivalent); and if this view be right it follows, as I venture to think, that the presence of intention to injure on the part of the spouse charged or (which is, as I think, the same thing) proof that the conduct of the party charged was " aimed at" the other spouse is not an essential requisite for cruelty. The question in all such cases is, to my mind, whether the acts or conduct of the party charged were9" cruel" according to the ordinary sense of that word, rather than whether the party charged was himself or herself a cruel man or woman. Indeed, for reasons which I shall more fully state in my Opinion in the Williams case, the introduction of the notion of " intention " into the jurisdiction with which your Lordships are now concerned has led to no little confusion and difficulty which, as I hope, may now be laid to rest. The case where one party to a marriage sets out by deliberate means to injure the other is no doubt simple; but equally it is, I should think, relatively rare. More frequent (and in its effects more often hurtful and insidious) is such a case as the present where the " intention " of the party charged, if it exists at all, is no more and no less than an " intention " to gratify his or her purely selfish inclinations. So it is that, as it seems to me, the Courts in adopting the necessity of " intention " have, inevitably in the cause of justice, had to introduce the notion of presumed intention and thereby to have intro- duced into Divorce Law quasi-philosophical difficulties which have clouded the law and given to the word " cruelty " a sense which is not justified by its ordinary significance.For the reasons which I have attempted to state, I therefore conclude with my noble and learned friend, Lord Reid, and as the majority of the Court of Appeal thought, that no good reason has been established for disabling the conclusion of the magistrates. I think, in other words, that if the reasons formulated by the magistrates were justified, then applying the common sense of the English language and the ordinary standards of human conduct the Respondent made good her charge of cruel treatment, and I think accordingly that this appeal should be dismissed.

Lord Morris of Borth-y-Gest

My Lords,Though a question as to whether one person has been guilty of persistent cruelty to another must ultimately be determined as an issue of fact, it is eminently desirable that the approach to the determination should be guided by principles of general application. This is not to say that some precise definition of cruelty should, for the purposes of judicial determinations, be attempted to be given. It has long been recognised that it would be unwise to make any such attempt (see Jamieson v. Jamieson [1952] A.C. 525, 550). There are, however, certain conceptions which are basic. Most people have the same general ideas in mind when they speak of cruelty or of kindness. If someone is giving thought to a question as to whether a person has been cruel he will probably first consider what it is that the person has done or has omitted to do, and will then decide, perhaps largely as a matter of opinion, whether the act or omission does or does not fall within his conception of cruelty. In the administration of the law the matter cannot be left to be dealt with on quite such broad lines. Cruelty is a matrimonial offence and an allegation of cruelty is a serious one. To be found guilty of cruelty involves not only a slur which would be deeply wounding to any self-respecting person but also involves certain specific con- sequences. The matters complained of as amounting to cruelty must, there- fore, extend much beyond the trivial or the casual. They must be serious matters. If they were not they surely could not be the foundation for an order affecting the matrimonial relationship. When in 1790 Sir William Scott (in Evans v. Evans, 1 Hag. Con. 35) said that the causes must be " grave"and weighty" he laid down a principle which has never been challenged. Even the particular words that he used in expressing the principle have been employed in subsequent periods with a measure of tenacious fidelity. The conduct complained of must, therefore, go beyond what the particular com- plaining spouse ought reasonably in all the circumstances to have been expected to tolerate. I use these words because, as Willmer, L.J., points out in his judgment in the present case, it is necessary to consider what was the impact of the personality and conduct of one spouse upon the mind of the complaining party (see Usmar v. Usmar [1949] P. 1 and King v. King [1953] A.C. 124. 130) and also because, as Pearce, J. (as my noble and learned

A 6

10friend then was) said in Lauder v. Louder [1949] P. 277, 308, " in a cruelty " case the question is whether this conduct by this man to this woman, or '" vice versa, is cruelty ".Not only must the matters complained of be serious, they must also be such as to have caused injury to health or a reasonable apprehension of such injury (Russell v. Russell [1897] AC 395 ).To these requirements I would add that the acts or conduct or omissions complained of must have been intentional and not accidental. Some occurrence accidentally brought about by one spouse may cause hurt and misery to the other, but it would not be rational to convict the former of cruelty.The range of the reported decisions in cruelty cases, so carefully and usefully reviewed, if I may respectfully say so, in the judgment of the learned President, reveals that difficulties often arise in those cases where no positive wish to hurt is apparent and in those cases where conduct causes hurt indirectly. In the difficult spheres covered by such cases there has naturally been a desire to seek a principle and in this search dependence has often been placed upon particular phrases employed by learned judges in expressing their conclusions in particular cases. In the result it has sometimes happened that a phrase or an aphorism coined in one case has become doctrine in the next. My Lords, I would favour as much simplicity as is reasonably possible and as much freedom as is reasonably possible from any limiting words or phrases. As Harman, L.J., pointed out in his judgment, the only question which in the end arises for decision is—Did the conduct of this husband amount to cruelty to this wife?Some conduct may be shown to be conduct which is directed to or towards or which is in relation to or which is in respect of the other spouse. I am intending my words to be mere servants to express a meaning. Other and different words would do. If such conduct is wilful and intentional, then I would consider it fair that it should be judged by relation to those standards to which a reasonable spouse in all the particular circumstances of the particular marriage ought to have conformed. If such conduct is wilful and intentional, then there either would be or there should have been knowledge of any injurious effects resulting from it. Some cases would be covered by the oft-quoted words used in 1919 by Shearman, J., in Madden v. Madden: —" I do not question . . . that he had no intention " of being cruel . . . but ... his intentional acts amounted to cruelty ". I agree, therefore, with Willmer, L.J., when he said: —" Thus, any course of " conduct intentionally pursued, provided it has some impact on the other " spouse, may in appropriate circumstances justify a finding of cruelty ".There may, however, be conduct which does not appear to have been directed to or towards or to have been conduct in relation to or in respect of the other spouse. In such cases it is sometimes said that the " impact " of the conduct is not direct. If such conduct was wilful and intentional (and satisfied the conditions to which I earlier referred) cruelty could be established if there had been an intention to injure the other spouse or if with knowledge of its effect it was persisted in or continued. A continuance of some particular conduct after receiving a warning that it was adversely affecting the other spouse could amount to cruelty. Further, the facts and circumstances might be such that any reasonable person must have known that injury to the other spouse would be the result of the conduct: if so, the wilful pursuit of the conduct would by inference involve an intention to cause the injury. The process of drawing an inference does not involve imputing an intention that did not in fact exist but involves deducing from proper material that an intention did exist. If the conduct itself is wilful and intentional and if either there is knowledge that it will probably harm the petitioner or if, applying the standards of a reasonable person in the circumstances of the particular case, there must have been such knowledge, then, a charge of cruelty could be maintained. I say " could " because in the end it must be shown as a question of fact that the conduct is such that it can properly and rationally be stigmatised by the word " cruelty " using that word in its ordinary acceptation.11My Lords,the divergences of view which are revealed in the judgments in the Divisional Court and in the Court of Appeal seem to me to arise mainly in the application of the law to the facts. The facts are very clearly set out in the judgment of the learned President, and I need not refer to them in complete detail. My study of them leads me to the same conclusion as was reached by the learned President and Cairns, J., in the Divisional Court and by Harman, L.J., in the Court of Appeal. From the time of their marriage in 1946 until the year 1957 the parties lived at the farm. Though the husband farmed unsuccessfully and was considerably in debt and though the wife was caused much distress by her discovery in 1947 of the grave financial situation then existing, there is no suggestion that the husband at any time offered any sort of physical harm to her or that he was in any way aggressively unkind to her or that he was in any way intemperate. Nor does the evidence show that at any time he had any wish to harm her. That has not been suggested. Furthermore the wife was not, in fact, at any time short of money. The farm was sold in 1957. The property wa* then purchased which thereafter the wife ran as a guest house. The house was purchased in his name and there was a mortgage on it. The mortgage had been partly redeemed by January, 1961, and in 1960 the house was handed over to the wife. Undoubtedly she had a hard and strenuous and worrying time. She had been involved by her husband in his debts and she had continuously to work to support herself and the children and to pay mortgage sums. He made no financial contribution. His help in regard to the running of the guest house does not appear to have been at all adequate. His activities in seeking to make inventions of agricultural machinery did not produce any money for the home. In the enterprise which kept the home going he may have been little more than a passenger. It was the wife who carried the burdens.It is easy to understand that a hard pressed and worried wife would become exasperated. In September, 1960, a brother of the husband had a fire at his farm in Buckinghamshire and as a result the husband went there for a time in order to help. It was while he was there that the wife wrote to him and told him that she could not stand the strain of his debts any longer and she said: —" I told him it grieved me to have to take this step, " but if he did not get work and clear himself of debt, after the end of the " year I should take the steps I have. I asked him to stay away and get " work because I could not stand the strain ". The husband did not do as she wished and towards the end of the year he returned home. The wife's first summons then followed. That was in December, 1960. She alleged wilful neglect by him to provide reasonable maintenance. Cruelty was not alleged. In her evidence at the hearing on the 5th January, 1961, the wife made no complaint at all save in regard to money matters. There was no suggestion or hint at that time that her health was in any way affected. She said:
" The only time I have any bother is over finance "
. She did complain of the fact that although her husband in the period after September, 1960, had worked as a farm labourer (earning from £6 to £8 per week) at his brother's farm in Buckinghamshire he had not sent any money to her.In his evidence the husband said that the guest house was a joint venture and that he had kept the garden in order and had done small outside repairs and painting. He considered that the work he had done had saved much expenditure which otherwise would have been incurred and that he had improved the value of the property. He further said that during the previous four years he had applied for jobs but had only succeeded in obtaining casual employment for very short periods. The magistrates told the husband that he ought to find work and that he ought to maintain his wife and children and that he had been guilty of wilful neglect to maintain them. Their order (requiring him to pay her £3 a week and £1 for each of the two children) was made on the 5th January, 1961. For some weeksafter that date the husband was away at his sister's house and then he did obtain work. He became employed as a gardener-handyman at a wage of £8 15s. 0d. a week. He started to pay 15s. a week to his wife and after- wards, apart from one payment of £2, he paid her £1 per week. He used the balance partly to keep himself and partly (to the extent, he said, of30874

A5

12£4 per week) to pay off his previously incurred debts. In April, 1961, the wife consulted her doctor. In June, 1961, she ceased to perform regular household duties for him or to have any association with him. In August, 1961, she took out a summons for the variation of the January order. She asked for the insertion of a non-cohabitation clause on the ground that her husband had treated her with persistent cruelty. It seems remarkable that she should have complained of cruelty at that stage. In the earlier period she had her husband's presence and no money from him: at this period she was having nothing to do with him and he was making a payment (though a very small one) to her. It is true that he was not fully complying with the January order and was not paying the stated amounts, but his case was that because of his financial position he could not do so and could not pay more than he was doing. In September, 1961, he took out a cross-summons to revoke the order of 5th January, 1961, on the ground that his wife was in desertion or alternatively on the ground that he was no longer guilty of wilful neglect to maintain for the reason that he was not (and never had been) in a position to pay the amount ordered. The husband in his evidence in October said that he had no reason to think that his wife was ill. He did not see the doctor come to the house. His wife had given him the impression that she did not want him. It was the view of the learned President that the object of the wife in taking out her summons in August, 1961, for variation of the previous order was to get her husband out of the house. When the summons and cross-summons came before the justices in October, 1961, they inserted a non-cohabitation clause. They held that since 1957 he had persistently and wilfully refused to undertake paid employment, that worry over this and the debts had seriously affected the wife's health, that in September, 1960, she had told him that she could no longer stand the strain, that he should have known that his conduct was having a serious adverse effect on her health and that he must have known that a continuance in his course of conduct would have an injurious effect on his wife's mental health. Though the order of the justices in October contains no express finding of cruelty it must, I think, be taken that their reason for acceding to the application for a non- cohabitation order was that they considered that the complaint of persistent cruelty made in August, 1961, was made out. At the same time they decided in favour of the husband to the extent that they reduced the wife's main- tenance from £3 a week to £1 a week and they deleted the requirement to pay £1 a week for each child, and furthermore they remitted the arrears.They, therefore, impliedly held that the husband was paying as much as in all the circumstances he could pay. Previously they had told him to get work. Following upon that he had obtained work. He had made such payments as he could. At the earlier date there was no allegation of cruelty. There seems to have been even less justification for it in August than there was in January.My Lords,the husband may have been ineffectual in money matters and he may well be criticised and blamed for his failures in the period prior to January, 1961. He was then found guilty of wilful neglect to provide reasonable maintenance for his wife and his children. Thereafter the events were as I have indicated. Unless a finding of wilful neglect to maintain must in every case involve a finding of cruelty (which I cannot accept) the question that arises is, as the learned President stated it, whether, "the " husband's conduct, however reprehensible, can properly be stigmatised by " the word 'cruelty' in its ordinary acceptation". I do not think that it can, and accordingly I would allow the appeal.

Lord Hodson

My Lords,The question raised by this appeal is whether the Appellant, George Gollins, was rightly convicted of cruelty towards his wife, Mabel Gollins. I put the matter in this way although there is no conviction recorded against13him in the somewhat strange manner in which this case has proceeded, What has happened is this. The wife, who had become dissatisfied wit the husband's failure to make any substantial contribution to the joint home which was successfully maintained by her efforts, sued the husband for wilful neglect to maintain her and her children, making no allegation of cruelty against him, and obtained an order which he was unable to comply with except to a very limited extentThe parties were at this time living under the same roof and the wife, unwilling that this should continue, for the first time raised against him a charge of cruelty, upon which the justices must have found the wife's allegation proved, for they made a separation order, thereby enabling the wife to expel him from the house which, while originally his, had been trans- ferred to her in circumstances which will appear.There was no material change in the situation from the time the first order was made on the 5th January, 1961, and the 5th October, 1961, when the separation order was made, the wife's complaint being, as it always had been, that she was not getting enough money and was worried by her husband's debts and the consequences of those debts,- for she also had to suffer the calls and demands of creditors.Indeed, it appears that after the first order the husband paid more than he had previously been able to do because he was, during part of the time, in employment and able to keep himself, which the wife was no longer willing to do, make payments in reduction of his debts and some payment to his wife under the order.On the second hearing the wife, having obtained her objective, namely. separation, did not resist the husband's application to vary the order which was reduced from £3 a week to £1 a week and £1 a week for each child. The husband satisfied the justices that he was unable to pay the arrears, which were accordingly remitted.Smarting under the implied finding of cruelty, the husband appealed to the Divisional Court, which allowed the appeal upon the overriding ground that the Court did not consider that the husband's conduct, however repre- hensible, could properly be stigmatized by the word " cruelty" in its ordinary acceptation.The wife appealed to the Court of Appeal, and Willmer, L.J., with whom Davies, L.J., agreed in substance, held that there was abundant material to justify the finding of cruelty and that the Divisional Court were therefore in error in substituting a finding of their own. Harman, L.J., in a dissenting judgment expressly agreed with the overriding ground of the Divisional Court's decision to which I have referred, concluding by saying: " Whatever " opprobrious names one may give to this husband, I do not think that" ' cruel' is one of them ".There is no dispute as to the facts, and the only question for your Lord- ships' consideration is whether the Divisional Court was right in reversing the finding of cruelty implicit in the justices' second order or whether the Court of Appeal majority was right in holding the Divisional Court to be wrong in disturbing the order of the justices.Under the Summary Jurisdiction Acts, 1895 and 1960, an appeal lies from any order made by a Court of Summary Jurisdiction under these Acts to the Probate, Divorce and Admiralty Division of the High Court, and Rules may from time to time be made regulating the practical procedure in such appeals. Rule 73 of the Matrimonial Causes Rules provides for these appeals to be made to the Divisional Court and directs that the Court may draw all inferences of fact which might have been drawn in the Magistrates'Court and may give any judgment and make any order which ought to have been made. Ever since the passing of the first of these Acts in 1895 the practice has been that the Divisional Court will not reverse any finding of fact by the Magistrates' Court unless it appears that such finding is clearly wrong. This practice is manifestly sound, for decisions of justices are nearly akin to decisions of juries, and they do not and cannot be expected to give elaborate judgments shewing the process by which they have reached their14decision on fact. Moreover, in so far as these questions depend on the appreciation of the personalities involved it is well recognized that any appellate court will be reluctant to interfere with decisions reached by those who have not only heard the evidence but had an opportunity of summing up the characters of the protagonists in the dispute.The justices are, however, in practice required to give reasons for their decision, and these appear to have been carefully drawn so as to shew the conclusion which they reached and the relevant facts which led them to convict the husband of cruelty. They are as follows: —" (1) That at the time of the marriage the husband was heavily in " debt, unbeknown to the wife, and that throughout the marriage the " husband has not made any real or sustained effort to repair his finan- " cial situation ; but on the contrary has involved his wife in his financial " affairs to her detriment."(2) That since 1957 the husband, in spite of his wife's pleas for " him to do so, has persistently and wilfully refused to undertake paid " employment, and that he has not made any real effort to support his " wife and children ;" (3) That the constant worry and anxiety over the husband's debts " and his wilful refusal to get work has seriously affected the wife's " health, and that she has good reasons to fear permanent impairment " of her health, which would affect her capacity to keep herself and " her two daughters ;" (4) That in September, 1960, the wife told the husband that she " could no longer stand the strain imposed by his behaviour;" (5) That apart from the complaint of the wife, the husband should " have known that his conduct was having a serious adverse effect on " his wife's health. We are satisfied that any reasonable man would " have appreciated this, and that the husband must have known that " a continuance in his course of conduct would have an injurious " effect on his wife's mental health ;
" (6) We reject entirely the husband's contention that by looking " after the garden and poultry at Rivenhall he was making a sufficient " contribution towards maintaining his wife and children, thus leaving " him free to devote virtually his whole time to developing his inven- " tion. We consider that a husband in his position in life should as a " matter of course cultivate the garden and do the heavier domestic " tasks, such as carrying coal, and that no husband in his position is " entitled to expect his wife to maintain him in return for such normal " duties. We also consider that on the facts of this case it was the " clear duty of the husband to obtain work, to maintain himself, and " to contribute to the support of his wife and children, and that his " failure to do so was the direct cause of his wife's ill health."
I have already stated that the facts are not in dispute, but it is desirable to refer to some of the evidence in order to shew what the wife's case was. She was married to the husband in 1946, she being then 38 and he 43 years of age. They had two daughters born in 1947 and 1949. At the time of the marriage they lived in a farm belonging to the husband, and shortly before the birth of their elder daughter the husband tried to borrow money from the wife to pay for drainage and improvements. She then learned that the farm was heavily mortgaged, that he owed other debts and could not support a wife and child. The husband was never free from debt, although the wife lent him money to pay off pressing creditors, including £200 in the year 1951 which has not been repaid.In the year 1957 the farm was sold and a further property, " Rivenhall", was bought in the name of the husband for £3,000 and subject to a mortgage of £2,250. In 1960 the husband transferred " Rivenhall" into the wife's name and it so remains, subject to the mortgage. The wife thereafter ran the house as a guest house for elderly people. This produced an income15for her of £1,300 a year out of which she said she paid everything and had done so ever since they moved into the place.The husband looked after the garden and the poultry, but his main interest was inventing, in connection principally with agricultural machinery, which did not prove remunerative. The wife's complaint was not that she'was short of money but that her husband, so far from providing anything to keep down the mortgage and provide for his family, involved her in his debts so that she was embarrassed by the demands of creditors and the calls of bailiffs which, no doubt, would come to the knowledge of the guests.The wife made no complaint at either hearing of any aggressive conduct on the part of the husband. She stated at the first hearing that the only time she had any bother with him was over finance and from this statement she never departed. At the second hearing she said:
" I do not claim that "
I am short of money. I have to work to raise money to pay off the " mortgage and keep myself. One expects the husband to pay ".The husband was the one to complain of hostile conduct, saying that he thought the wife intended to make life unpleasant for him and gave examples of her conduct. One instance of her conduct emerges from the wife's own evidence, for she complained that the husband was asserting his authority towards his children and making himself a nuisance. She admitted that she took them out on one occasion to stop him taking them to Nantwich. Latterly she refused to provide him with food and only cooked his meals at weekends and he did his own washing and ironing (apart from bed linen).In this unhappy state of affairs from April, 1961, the wife complained of headaches, agitation and unexplained fits of weeping, sleeplessness and short periods of amnesia. Her doctor formed the impression that she was suffering from a moderately severe anxiety state precipitated by her financial and marital difficulties. He felt that if her domestic circumstances did not improve her psychological condition might well become worse in spite of treatment.Although the justices nowhere in their reasons use the word " cruelty " nor do they find that the complaint that the husband has been guilty of persistent cruelty was made out, yet they must have formed the opinion that cruelty was proved for otherwise it is not to be supposed that they would have made an order the effect of which was to bar the husband from his wife's society. Although the statute does enable justices to pro- nounce a separation even upon the finding of wilful neglect to maintain, it is not the practice so to do for the reasons set out in the judgment of the Court of Appeal in Harriman v. Harriman [1909] P 123 , see the judgment of Kennedy, L.J. at page 151:" In my judgment the history of this provision, the language of the " context, the very nature of the protection which the provision gives, and " the enactment in (a) that it shall have the effect of a decree of judicial " separation on the ground of cruelty unite in shewing that the discretion " given by Parliament to the Court of summary jurisdiction as to the " framing of orders under ss. 4 and 5 is not rightly exercised, if this " non-cohabitation provision is inserted in the order made for the wife's " relief, except where the Court has been satisfied by evidence, in the " words of the Act of 1878, 'that the future safety of the wife is in " ' peril'". He goes on:
"I do not mean, in saying this, that the " non-cohabitation provision ought to be inserted in the order only " where the wife has proved the convictions for assault or the persistent " cruelty expressly specified in s. 4 of the Act of 1895. It is possible that " a wilful neglect to maintain may be proved to have been accompanied " by occasional acts of dangerous violence, and so justify the inclusion " in the order of the non-cohabitation provision. But I am clearly of " opinion that it is neither in accordance with the intention of the "
Legislature, as appearing in this statute, nor in the interest of the " wife or of public morals, that the provision should be included in an" " order which is sought for and obtained solely on the ground of the " husband's desertion."16True that since these words were used Parliament has re-enacted the Act of 1895 in substantially the same terms, but the practice laid down in Harriman's case has been consistently followed; cf. the judgment of the President in Jolliffe v. Jolliffe given on the 16th January, 1963, after his attention had been drawn to the observations of two of the members of the Court of Appeal on this topic in the present case.Your Lordships are therefore, in my opinion, bound to deal with this appeal on the footing that the husband has been found guilty of persistent cruelty. This finding appears to me a finding which is wholly wrong and ought not to be allowed to stand.I have already indicated, I hope sufficiently, that findings of justices in matters of this kind ought not to be disturbed where there is evidence to support them, but I can find no trace of any conduct alleged by the wife against her husband which can be properly called cruel. It is not, I think, profitable to use other adjectives by way of explanation, substitution or definition. The word " cruel " is enough, is readily understood without more and there is no need to speak of unreasonable, reprehensible or inexcus- able conduct,True that the Courts have taken a stand in that conduct which readily merits the adjective cruel is not to be the basis of relief unless injury to health or a reasonable apprehension of the same is established. This was established by Russell v. Russell [1897] AC 395 , when by a majority your Lordships' House decided that the disgraceful conduct of Lady Russell to- wards her husband, while meriting the description cruel, did not measure up to the standard set by the Ecclesiastical Courts in that no physical harm was found to have been inflicted or was reasonably to be apprehended.Although the members of your Lordships' House who decided that case were divided in their judgment, none doubted the validity of the opinion of Sir Wm. Scott in Evans v. Evans [1 Hag. Con. 35 at page 37) when he said— " This however must be understood, that it is the duty of Courts, and " consequently the inclination of Courts, to keep the rule extremely strict. " The causes must be grave and weighty, and such as shew an absolute " impossibility that the duties of the married life can be discharged. In a " state of personal danger no duties can be discharged ; for the duty of " self-preservation must take place before the duties of marriage, which are " secondary both in commencement and in obligation; but what falls short " of this is with great caution to be admitted."The converse of the decision in Russell v. Russell, namely, that once injury to health could be attributed to matrimonial discord then cruelty was proved, has never, so far as I know, been advanced in this country until this case. Counsel for the wife was at pains to emphasize that the catalogue of cruelty, like the catalogue of negligence, is never closed. This is true. He relied upon the observations of my noble and learned friend, Lord Tucker, to that effect in Jamieson v. Jamieson [1952] A.C. 525 at page 550 in relation to cases where no physical violence is averred. In such cases, of which Jamieson's case was a not untypical example, the conduct averred in the pleadings which alone fell for consideration was not on the face of it cruel, but the case was sent for trial because of the averment of deliberate inten- tion and persistence in callous conduct by the offending spouse although aware of the effect on his wife's health. But for the averment of intent the judgment of the lower House, holding that the pleaded case would not sustain a charge of cruelty, would have been upheld.Where physical violence or threats of violence are involved no difficulty arises and the Court does not stay to enquire with what intent (in the absence of insanity) acts are committed. By 1870 it had been accepted that what has been called moral force combined with injury to health is sufficient without any act of violence, see the decision of Lord Penzance in Kelly v. Kelly [1870] L.R. 2 P. & D. 31 and 59, which has never been disapproved. It is in cases of this kind, where no violence or threat of violence is involved, that the question of intent becomes important and is sometimes crucial, as it was in Jamieson's case. There is no indication that this husband ever had the smallest intention of doing any harm to anyone, least of all his17wife. In what way, then, was he cruel? Was it by omission, for cruelty may be manifested by omission as readily as by commission. To neglect a suffering spouse or one who has by misfortune fallen into danger is cruel, one would think, whether or not the other spouse has had anything to do with bringing about the suffering or the danger. To speak of unwarrantable indifference is only to illustrate that the cruel man is merciless and the question must always be, was the conduct, be it positive or negative, cruel according to the meaning of that word as understood by ordinary people. If it be said that it is difficult to draw any line between what is or is not cruel I agree, but I see no reason for attempting to establish boundaries on one side of which cruelty lies, on the other of which it does not. No one has hitherto attempted so to do, and at the end of it each person has to make up his own mind after considering each case as a whole, not by asking whether conduct is cruel and then asking whether it can in any way be justified. ! respectfully adopt the language of my noble and learned friend, Lord Reid, in King v. King [1953] A.C. 124 at page 140 when he said, using words which seem to me to have general application—" The question whether the Respon- " dent treated the husband with cruelty is a single question only to be " answered after all the facts have been taken into account".In that case your Lordships were invited to consider some recent cases in which the Courts had sought to give guidance in those cases where cruelty was alleged and the acts were not on the face of them necessarily cruel vis-à-vis the complaining spouse. The first of these was Horton v. Horton [1940] P. 187, a decision of Bucknill J. The learned

judge said:

" Mere con- " duct which causes injury to health is not enough. A man takes the woman " for his wife for better, for worse. If he marries a wife whose character " develops in such a way as to make it impossible for him to live happily " with her, I do not think he establishes cruelty merely because he finds life " with her is impossible. He must prove that she has committed wilful " and unjustifiable acts inflicting pain and misery upon him and causing him " injury to health."
As Lord Normand pointed out, this test may well have been adequate for what fell to be decided in Horton's case, but it is not an adequate test in all cases. It cannot be regarded as a test in cases which come under the head of " unwarrantable indifference ", for example.The same comment seems to me to be appropriate in considering the case of Kaslefsky v. Kaslefsky [1951] P. 38. I agree with the decision, but I find it difficult to see how " the aiming test " there put forward assists in the conclusion, although it is a valuable guide in many cases. The majority of the Court seems, however, to have taken the view that although cruelty was not proved yet the husband was justified in refusing to live with his wife. That, on the facts of the case (which was quite different from the Russell case), I also find difficult to understand. The judgment of Denning L.J., who was the third member of the court, has, as I have indicated, been a very useful guide in considering many borderline cases, repeating as he did observations of his own in an earlier case of Westall v. Westall, 65 T.L.R. " Aiming" is an aspect of intention. Moreover, I note that your Lordships had the opportunity of considering Kaslefsky's case not only in King's case but also in Jamiesons' case. I do not see how differences of judicial opinion are to be avoided in this area. King's case is an illustration. Your Lordships were divided three to two in favour of the finding of no cruelty, the Court of Appeal was of the same opinion, being divided two to one, and the learned and experienced trial judge was of the opposite opinion.I have formed myself a clear opinion that in this case the conduct of the husband cannot justly be called cruel, and I have looked in vain to see what he did or left undone which qualifies him to be convicted of cruelty to his wife. The case against him was simple enough. It was that to all intents and purposes he was a man who did not provide for his wife's maintenance and further got into debt and allowed his wife to suffer with him the incon- veniences which followed. It was said, but this was not proved, that he put her name on a document relating to a debt of his in circumstances amounting to forgery, but I find no positive act proved against him. Willmer L.J., was of opinion that this failure to provide was enough, but this ignores the18realities of the situation. The husband was not a man of means and the wife relatively speaking was a woman of means. She never attempted to make a case of physical suffering brought about by any failure to provide the necessaries of life. For a man to fail to support his wife is no doubt a matter which can be dealt with by appropriate proceedings, though I have not myself previously heard of a case where an impecunious husband was sued by a pecunious wife. In any event, in my opinion no cruelty was involved, and I would allow the appeal.

Lord Pearce

My Lords,In all matrimonial disputes, whether in the Magistrates' Courts or in the Divorce Court, the word "cruelty" has the same connotations. It has a long history behind it. In 1857 by the Divorce and Matrimonial Causes Act the Divorce Court took over the jurisdiction of the Ecclesiastical Courts with the added statutory power to grant decrees of dissolution of marriage. By section 22 it was bound in all suits other than those for dissolution to act and give relief " on principles and rules which in the opinion of the said Court " shall be as nearly as may be conformable to the principles and rules " on which the Ecclesiastical Courts have heretofore . . . given relief " (see now Judicature Consolidation Act, 1925, sections 32 and 103). The former relief by decree a mensa et thoro, of which cruelty had been a ground, became relief by a decree for judicial separation (section 7). And a decree for judicial separation might be obtained either by the husband or the wife " on the ground of adultery or cruelty or desertion without cause for two " years and upwards " (section 16). The Matrimonial Causes Act, 1937, first empowered the Court to grant a decree of dissolution on the ground that the Respondent " has since the celebration of the marriage treated the petitioner " with cruelty ".From the days of Lord Stowell down to the present it has been acknow- ledged that to support a finding of cruelty the matter must be grave and weighty. And in Russell v. Russell [1897] AC 395 , this House finally settled that conduct must, in order to constitute cruelty in the legal acceptance of the term, be such as to cause danger to life, limb, or health, bodily or mental, or to give rise to a reasonable apprehension of such danger. (See Lord Merriman in Jamieson v. Jamieson [1952] A.C. 525 at page 544.)Thus there have long been two safeguards against any extension of relief to cases founded on mere trivialities and incompatibility.The earlier cases of cruelty dealt in the main with acts of physical violence, and were little concerned with motives or intentions. In Dysart v. Dysart in 1844 (1 Rob. Ecc. 106) Dr. Lushington said:
" It is for me to consider the " conduct itself and its probable consequences; the motives and causes " cannot hold the hand of the Court unless the wife be to blame, which is a " wholly different consideration "
. But it appears clearly from the cases that the Court's objective consideration took account of the particular individuals concerned and the particular circumstances of each case.In Kelly v. Kelly [1879] L.R. 2 P. & D. 59, which Lord Merriman described as " the leading case in England on the subject of cruelty without physical " violence " (in Jamieson v. Jamieson [1952] A.C. 525 at page 540), the Court considered a course of tyrannous conduct intended to dominate the wife and bend her to the husband's will. The full Court there found cruelty proved and Lord Penzance expressly stated (at page 72) that the husband " says that he does not desire to injure her, and it has never been asserted that " he does".In various cases thereafter it was shown that intention to injure or to be cruel was not a necessary ingredient of cruelty. The words of Shearman, J.19in Hodden v. Hodden (" The Times " 5th December, 1919) express the matter succinctly:
" I do not question ... that he had no intention of being cruel... " but ... his intentional acts amounted to cruelty."
The same line of thought was followed by the Court of Appeal in the case of Squire v. Squire [1949] P. 51 (approved by Lord Merriman in Jamieson v. Jamieson (supra) at page 541). Tucker, L.J. there said: (p. 56): "It is to be observed that in " the well-known and much-quoted case of Russell v. Russell ( [1897] AC 395 ) " it is nowhere suggested that motive is a necessary element in cruelty ".In Jamieson v. Jamieson (at p. 535) Lord Normand, having quoted the Lord President's observation in the Court below, that in cases of mental cruelty " the guilty spouse must either intend to hurt the victim or at least " be unwarrantably indifferent as to the consequences to the victim", continued:
" I do not propose to go into that because I wish to avoid the " discussion of hypothetical cases and because I am of opinion that actual " intention to hurt may have in a doubtful case a decisive importance, and " that such an intention has been averred here. Actual intention to hurt is " a circumstance of peculiar importance because conduct which is intended " to hurt strikes with a sharper edge than conduct which is the consequence " of mere obtuseness or indifference."
Those words are inconsistent with the view that intention was an essential element. So, too, Lord Merriman's opinion. He quoted with approval (at p. 540) the words of Lord Penzance in Kelly v. Kelly set out above, and those of Shearman, J. in Hodden v. Hodden (supra). My noble and learned friend, Lord Reid, said (at p. 549). " I do " not doubt that there are many cases where cruelty can be established with- " out it being necessary to be satisfied by evidence that the defender had " such an intention, but I do not intend to decide anything about such " cases." Lord Tucker said (at p. 550):
" Every such act must be judged in " relation to its attendant circumstances, and the physical or mental con- " dition or susceptibilities of the innocent spouse, the intention of the offend- " ing spouse and the offender's knowledge of the actual or probable effect " of his conduct on the other's health . . . are all matters which may be " decisive in determining on which side of the line a particular act or course " of conduct lies."
Thus in all the opinions there appears the view that intention, though it may be a deciding factor in some doubtful cases, is not essential to cruelty.There is nothing in King v. King [1953) A.C. 124 which is inconsistent with that view. My noble and learned friend, Lord Reid, there said:
" It has " long been recognised that a malevolent intention while not essential to " cruelty is a most important element where it exists."
The case concerned a nagging wife whose husband's conduct was thought by three of their Lord- ships to have given the wife sufficient provocation and excuse for her be- haviour. Two of their Lordships thought otherwise. Thus it was a border- line case which turned on the extent to which the husband's conduct provided an excuse to the wife in the particular facts of the case. It would be wrong to read words intended to refer to the particular problem before the House as intended to be of universal application, particularly when the authors of them disclaimed such an intention. My noble and learned friend, Lord Reid, (who was one of the majority) having described the case as " a narrow and " difficult case ", said:
" I do not intend to try to define cruelty. I doubt " whether any definition would apply equally well to cases where there " has been physical violence and to cases of nagging or to cases where there " has been a deliberate intention to hurt and to cases where temperament and " unfortunate circumstances have caused much of the trouble. But in cases " like the present, the wife's conduct must at least be inexcusable after " taking everything into consideration."
Lord Normand said (at p. 129):
" I have no doubt that the test whether " the conduct was wilful and unjustifiable . . . was an adequate test for what " remained to be decided in Horton's case. What is open to question is " whether it can be taken to be an adequate test in all cases of cruelty " by nagging accusations. I think it is not always an adequate test, and that "
Bucknill, J. did not put it forward as a universal and exhaustive test in20" this type of case ... If the trial judge in the exercise of his discretion " comes to the conclusion that the conduct of the respondent is, notwith- " standing the provocation received or the difficulties and stresses endured, " really an inexcusable offence against the other spouse, his judgment should " be respected as conclusive." In the present case no question of provocation or of bad behaviour by the Petitioner arises.Those words were not, I think, intended to limit, so far as cases of nagging and accusations and the like are concerned, the generality of any rule that intention is not an essential element in cruelty. An act may be found inexcusable although the actor had no harmful intention.It has always been clear that an intention to hurt invests any act or conduct with a greater significance. This axiom is, however, merely a piece of jury wisdom which a sensible tribunal bears in mind when performing its task of assessing whether a particular act or course of conduct was cruel. It is wrong to exalt it into a criterion of legal principle which will decide in all cases where there is no physical violence whether conduct can be cruel.It was natural that with the increasing incidence of cases where no physical violence was involved the question of intention should take on an added importance. For whereas a blow speaks for itself, insults, humiliations, meanesses, impositions, deprivations, and the like may need the interpreta- tion of underlying intention for an assessment of their fullest significance. And that interpretation may in some cases turn the scale.The introduction of divorce on the ground of cruelty by the 1937 Act appears to have given rise to fears that divorce might be granted for mere trivialities or incompatibility in spite of the existing safeguards of gravity and injury to health. Instead of following the simple and direct approach of Dr. Lushington (supra), namely, considering " the conduct itself and its " probable consequences ", the Court has in some cases pursued a devious and confusing course. In Kaslefsky v. Kaslefsky [1961] P. 38 it was laid down by the Court of Appeal that conduct to be cruel must be aimed at the victim. Thus an element of intention was made a necessary ingredient in cruelty.The germ of the doctrine that conduct is not cruel unless it is aimed at the other party may, I think, be found in Horton v. Horton [1940] P. 187. There Bucknill, J. in granting a decree on the ground of cruelty, distinguished between conduct which was caused merely by " the development and mani- " festation of the wife's character acting so to speak in its own sphere ", and " wilful and unjustifiable conduct to him which was an intrusion upon " and did violence to his own mode of living." The former was in his judgment not cruelty but the latter was.Later in Westall v. Westall (65 T.L.R. 337) Denning, L.J. said obiter that " intention is an element in this sense, that there must be conduct which is, " in some way, aimed by one person at the other ". Kaslefsky's case adopted that dictum, and laid down that to secure a divorce on the ground of cruelty there must be shown on the part of the respondent conduct which is " aimed at", that is to say, actions or words actually or physically directed at, the petitioner or done with intention to injure him or to inflict misery on him.The decision on the facts was not of importance. The cumulative effect of the wife's acts appears from the report to have been somewhere on the border line of cruelty, but the evidence of injury to health was unsatisfactory. Without hearing the evidence it would be difficult to say whether a decree should or should not be granted. But the general approach laid down has been treated as binding and has therefore affected later decisions. So far as it laid down that unjustifiable conduct to the children could not be cruelty unless it was done for the purpose of wounding the other spouse, its effect has been satisfactorily mitigated by the Court of Appeal in Wright v. Wright [1960] P. 85, and in other respects the reasoning in Waters v. Waters [1956] P. 344 has avoided some of the difficulties caused by it.In Kaslefsky's case the Court apparently considered that the use of the word " treated " with cruelty in the 1937 Act had imparted a slightly different approach to cruelty (Bucknill, L.J. at 45). This, as it seems to me, is21erroneous, since I regard the phrase "treated with cruelty" as being no more than a convenient description of a situation where there has been cruel treatment of which the respondent was the author. In an article on this subject by the Editor of the " Law Quarterly ", 79 L.Q.R. 104, there is the apt observation:
"If instead of using the word 'cruelty' Parliament had " seen fit to use the word ' stupidity ', which in fact is one of the major causes " of divorces, must it be said that the words ' treats his wife with stupidity' " mean either that the man is stupid or that he intends his act to be " stupid."
I have sympathy with the Court's desire in Kaslefsky's case to supply some mesh that would separate the grain from the chaff: but the introduction of the necessity for a petitioner to prove that conduct was aimed at him or her has created confusion and difficulty.Can the words " aimed at" include acts done without intention but with knowledge (and also perhaps some regret) that they will strike the other? Can it include acts done with an unreasonable lack of appreciation of the fact that they will strike the other? Can it include acts done with callous indifference as to whether the acts strike the other or not? In my view the test is not a happy one from a practical point of view and it can only be made to work if it is patched by presumptions.On such a doctrine the Court is at once faced with the difficulty that much cruelty is purely selfish and is not aimed at the victim nor prompted by any intention or desire to injure. Not infrequently acts which any reasonable person would regard as cruel acts, or which any reasonable person would have known to be hurtful and to be injuring the health of the victim, are done by a respondent who is so bigoted, or obtuse, or insensitive, or self- centred that he or she did not in fact realise that these acts were cruel or injurious or intend that they should be. If the Court insists on proof of intention it must then either allow to the bigot, the obtuse, the insensitive, the self-centred a free hand to be as cruel as seems reasonable to their bigotry, stupidity, insensitiveness, or selfishness, or else it must make disingenuous presumptions in order to pay lip service to its insistence on intention.A Court may, as a piece of prima facie reasoning, presume that a person intends the probable consequences of his acts. But if that presumption is rebuttable and the Court insists on proof of intention, then in many cases of cruelty it cannot honestly give relief against the bigot, the obtuse, the insensitive, the self-centred. To avoid absurdity it may say—" I think " he must have realised and must have intended to hurt",—well knowing that in truth this particular man did not.My noble and learned friend, Lord Reid, in Jamieson v. Jamieson [1952] A.C. at page 549 reserved his opinion " whether, or to what extent, it is neces- " sary or proper to impute an intention which did not exist by invoking a legal " presumption that everyone must be supposed to intend or foresee the natural " and probable consequences of his acts ".Lord Merriman, P. always made clear that such a presumption is re- buttable (for example, Simpson v. Simpson [1951] P. 320 at page 333 ; Waters v. Waters [1956] P. 344, and Jamieson v. Jamieson (supra) at page 541.) See also Lang v. Lang [1955] AC 402 at page 428. But some of the expressions in other cases have seemed to treat the presumption as irrebuttable, which is tantamount to saying that whatever the true intentions of the actor he must be taken to intend the probable consequence of his act. If an irrebuttable pre- sumption is allowed (and I see no justification for it save only as an escape of last resort from the absurdities into which insistence on proof of intention can lead) one reaches by a devious route the same objective test which Dr. Lushington applied when he considered " the conduct itself and its probable " consequences ".One may take, for example, the case of a husband whose wife has become seriously ill abroad and who leaves her timorous, unable to speak the language, without adequate nursing arrangements or currency, simply because he must return to watch a football match which he feels that he cannot22miss. In such a case he would probably express and feel some regret at her plight and feel sorry that he cannot spare her any money from his own comforts and cannot make better arrangements, but he hopes optimistically that it will all work out somehow. I doubt if any Court would say that was not cruelty; and yet, in order so to hold, it would, if intention or aiming be a necessary ingredient, have to deem an intention or aim which it knows to be untrue. To say that unwarrantable indifference will suffice as intention or aim is no satisfactory answer to the problem, since in- difference is the antithesis of intention or aim. In such a case the test of " aiming at" is clearly inappropriate. If one endows the wife in the case I have envisaged with a robust and independent nature, a knowledge of the language, a less severe illness, a larger supply of currency and more adequate nursing arrangements and gives to the husband a more cogent reason for returning to England, the element of cruelty departs: yet it may return if he acted with the deliberate intention of hurting her.If the husband was too obtuse to realise how unkindly he was acting, that may be some excuse, but not (in those circumstances) any adequate excuse such as would prevent the conduct being cruel. If he appreciated but was indifferent to her suffering, the cruelty was worse. If he intended to hurt it was worst of all. The question whether he aimed it at her is decisive only of those acts of which one can predicate that they are cruel when intentional but not cruel when unintentional and it is not possible to form categories of acts which come exactly within that dubious class. For so often, as in the case envisaged, cruelty is a question of degree.In my opinion, therefore, the Court in Kaslefsky's case erred in saying that " aiming at" the petitioner was an essential ingredient in cases of cruelty. So, too, in Eastland v. Eastland [1954] P. 403, which followed and applied the reasoning in Kaslefsky's case.I do not find the test of the behaviour which the spouse " bargains to " endure for better, for worse " (see Buchler v. Buchler [1947] P. 25 at page 46 and Horton v. Horton [1940] P. 187 at page 193) helpful since it confuses rather than clarifies. Much of the felicitous and often quoted language of Asquith, L.J. in Buchler v. Buchler has value and in particular his notion of the " reasonable wear and tear of married life ", which is a useful reminder of the fact that in many marriages there are many complaints that could be put forward by either party, but that only grave and weighty matters causing injury or apprehended injury to health will suffice to support a charge of cruelty or constructive desertion. The words " for better, for worse ", how- ever, carry religious associations knit up with the indissolubility of marriage and are of little help in estimating whether a spouse is legally entitled to the relief provided by Parliament. See the observations of Danckwerts, L.J. in Hall v. Hall [1962] 3 All E.R. 518 at page 524. It may be that those words influenced the actual decision since, like Danckwerts, L.J. (at page 525), I find it hard to understand how the Court on the reported facts came to overrule the decision of the Judge of first instance.Nor do I think that the attempt in Horton's case to exclude from cruelty acts caused merely by the natural development of a spouse's character within its own sphere is helpful. Allowances must always be made for temperament, and mere temperamental disharmony simpliciter is not cruelty. But if a temperament which naturally tends to unkindness or selfishness or callousness develops to a point at which its acts are cruel, whether inten- tionally or not, it cannot be right to say that the other spouse must endure it without relief. Nor can one helpfully say that development of character is within its own sphere if its emanations affect and cause injury to the other spouse. Marriage by its nature causes one party to be affected by most of the reprehensible conduct on the part of the other, and usually it is obvious that it will be so.When the two parties and the evidence are before the Court it is easier to form a view than to pronounce in the abstract. That view, though it makes allowance for the subjective emotions, temperaments, and excuses of the individuals, judges the conduct by its probable consequences, and thus decides the question of fact and degree whether this conduct between23these spouses was cruel. It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances, would con- sider that the conduct complained of is such that this spouse should not be called on to endure it The judgments of the Court of Appeal in Hall v. Hall [1962] All E.R. 518 propounded a similar test in a case of constructive desertion, save that in such a case there need be no injury to health. A relevant question is whether the conduct is excusable (per Lord Reid in King v. King [1953] A.C. at page 145 and Willmer, L.J. in Usmar v. Usmar [1949] P. 1 at page 9, " forgivable in the circumstances "). For there are two sides to be considered in a case of cruelty—from the Petitioner's side ought this Petitioner to be called on to endure the conduct, from the Respondent's side was this conduct excusable?I agree with Lord Merriman, whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or appre- hended injury to health. In the light of that vital fact the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person's point of view after a consideration of any excuse which this Respondent might have in the circumstances, the conduct is such that this Petitioner ought not to be called on to endure it." What on paper may seem little more than a series of pinpricks ", said Lord Normand in Jamieson v. Jamieson [1952] A.C. at page 536, " may present a " very different aspect when it has been developed in evidence." The quality of every piece of conduct is affected by its context and by that which precedes and follows it. And it is to be remembered that, as my noble and learned friend, Lord Reid, pointed out in King v. King [1953] A.C. 124 at page 140, "It is not right first to ask whether the respondent's " conduct was cruel in fact and then to ask whether it can in any way be " justified. The question whether the respondent treated her husband with " cruelty is a single question only to be answered after all the facts have " been taken into account." And (at page 138). " In a case of this character " the wife's conduct must be judged in the light of the whole history of the " marriage ".It was suggested by Mr. Latey that we should evolve a formula which would exclude such conduct as that of the Appellant from cruelty unless there was an intention to hurt, and that then having found no such intention we should acquit him of cruelty. But cruelty is a question of fact and degree, and no legal formula can resolve its peculiar problems. It would no doubt simplify decisions in accident cases if the law evolved a legal principle that all driving over 40 miles per hour is negligent and that no driving under that speed could be negligence; but such a principle would be an evasion of the Court's duty to decide the question of fact. So, too, with cruelty cases which depend on an even wider variety of matters than negligence cases. The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relation- ship and almost every circumstance that attends the act or conduct complained of may all be relevant. I agree with the words of Lord Tucker when he said in Jamieson v. Jamieson [1952] A.C. at 550:
" It is in my view equally " undesirable—if not impossible—by judicial pronouncement to create " certain categories of acts or conduct as having or lacking the nature or " quality which render them capable ... of amounting to cruelty in cases where " no physical violence is averred."
Since the personalities of the parties are an important element in a decision whether conduct between those two persons has been cruel, it follows that a Court which relies on notes and has not seen the witnesses must use great caution. There are, of course, cases where it can say that whatever the personalities of the parties or the manner of giving their evidence, it can be asserted that the conduct was or was not cruel. But often that which the justices saw and heard may properly have turned the scale. In such24a case reversal of their decision is to create, not remedy, injustice. Was there material here on which the justices, with the advantage of hearing and seeing the witnesses, could properly reach their conclusion?Mr. Latey seeks to put before us the image of a man who was a good husband in all save his incapacity to work or to provide money for the home. It is more probable that the justices formed the view that he was not merely lazy but callous and selfish. Early in the marriage he borrowed her savings and he " involved her in his financial affairs to her " detriment". She was a competent, stable person and she managed by hard work in the guest house to keep the family from want. " Since 1957 the " husband, in spite of his wife's pleas for him to do so, has persistently " and wilfully refused to undertake paid employment." He has subjected her to constant worry and anxiety over his debts. Creditors and bailiffs have come to her guest house and embarrassed her courageous efforts to make a living for the family. He has insisted on remaining on the premises, when under the circumstances the wife naturally wanted him to depart. 'Under the pressure of such a situation the wife has paid sums to his creditors. Apparently he has actually gone to the length of signing her name to a promissory note in order to obtain money for his own purposes—a course which was obviously likely to cause her great anxiety. In September, I960, he was warned that his wife could no longer stand the strain imposed by his behaviour. Moreover, any reasonable man, as the Justices found, would have appreciated that his conduct was having a serious adverse effect on his wife's health.In the result a capable, well-balanced woman who has endured much stress for several years has been reduced to " headaches, agitation and unexplained " fits of weeping, sleeplessness and short episodes of amnesia ". The doctor describes her condition as " a moderately severe anxiety state precipitated " by her financial and marital difficulties ... If her domestic circumstances " do not improve her psychological condition may well become worse in " spite of treatment ".The husband is, according to the wife, arrogant and bigoted. Whether that description is justified we do not know, but the justices had an oppor- tunity of getting some impression of his personality. There is created by the evidence and the reasons the picture of a man who has been, over the years, parasitical, selfish and callous to the physical undoing of a healthy woman working hard to support herself and her children.I agree with Willmer and Davies, L.JJ. that the conclusion of the justices was a conclusion which they could properly reach on the evidence and on the reasons given. I also agree with the reasoning of the majority in the Court of Appeal save in so far as it was necessarily affected by Kaslefsky's case.I would therefore dismiss the appeal.(P/30874) Wt . 8024—149 35 8/63 St.S.