Lau Pui Kwai v. Lee Shue

CACV000020/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 20 OF 1968

(On Appeal from Divorce Jurisdiction Action No.3 of 1968.)

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Coram: Rigby, S.P.J. & Blair-Kerr, J.

Date of Judgment: 18 September 1968

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JUDGMENT

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1. This is an appeal from a decision of Mills-Owens J. dismissing a wife's undefended petition for divorce on the grounds of cruelty.

2. The facts are very fully set out in the judgment of the learned judge. The parties were married on the 17th of April, 1964; the Petitioner was then 38 years of age and the Respondent 42. There are no children of the marriage but the Petitioner, who had been previously married, was a widow and had a daughter, born in 1956, who had been fully accepted by the Respondent as a child of the family. The Petitioner is now employed as a dish washer at a restaurant and the Respondent, when he was in employment, as a coolie or casual worker.

3. The learned judge described the main complaint of the Petitioner against her husband as being the fact that he was a lazy, shiftless individual who was fond of gambling and who did not provide her and her daughter with adequate means of support, with the result that she was forced to go out to work herself. The Petitioner stated that during the period from the date of her marriage in April 1964 until the date she finally left in July 1967, a period of some forty months, the Respondent worked in the aggregate for a period of only nineteen months - being something like half the time idle; and he never obtained a permanent job. But that, as the learned judge accepted, was not her only complaint. She complained that he was given to moroseness and anger. It appears that she had some savings derived from her previous marriage, amounting to a few thousand dollars. From time to time, the Respondent asked her for money, and when she declined to give him any part of her savings, not only did he sulk and refuse to talk to her, but he withdrew from marital relations with her until finally, in order to resume normal matrimonial relations, she succumbed and gave him money. Thereafter, their relations returned to normal until such time as he again asked her for money. This abnormal matrimonial relationship would last from three to four months until it returned to normality by her giving him money, and during the period they lived together this happened on three to four occasions, on each occasion for a period of some three to four months.

4. The learned judge described the Petitioner as "a strong healthy woman". He further accepted that she was "in general a witness of truth".

5. The Petitioner stated in evidence that the effect of the Respondent's conduct in refusing to speak to her over these lengthy intervals of time and his withdrawal from all sexual relationship with her, had a detrimental effect on her health and, as a result, she suffered from headaches and backaches. She consulted a doctor but was unable to locate him to come forward and give evidence on her behalf.

6. In July 1966, the Petitioner left the Respondent and lived apart from him for two months. During that period she made application to a magistrate for a separation and maintenance order and an order, consented to by the Respondent, was made on the 11th of September, 1966. However, before the making of that order, the Respondent had approached the Petitioner and persuaded her to return to live with him and she had, in fact, returned to live with him the day before the order was made. Thereafter, she continued to live with him for some time. On the 2nd of May, 1967, she told the Respondent that she had taken a job. He objected and threatened her. On the 6th of May, she endeavoured to leave the house early in the morning, taking her daughter with her. The Respondent endeavoured to prevent her and struck her, as she said, two heavy blows on the arm. She apparently reported the matter to the police and, as a result, she was examined by a doctor. The doctor, who was called to give evidence on her behalf, described the injury as a bruise, one by one and a half inches, on her right forearm. It is apparent that it was, in effect, a very minor bruise. Finally, she left the house on the 29th of July, 1967. As the learned judge stated, "her difficulty in getting away earlier was obviously due to her desire to take her heavy furniture with her. During that period the Respondent was in employment and, but for her wishing to take her furniture with her, she agreed that she could have left at any time when he was absent at work."

7. The learned judge took the view that there was no evidence of any real violence and nothing beyond the Petitioner's statement regarding her state of health. He said that there was no corroborative evidence of her statement that his conduct, in particular his moroseness and withdrawal from marital relations, caused any injury to her health. The learned judge further took the view that there were two main matters to consider: "the withdrawal from marital relations and the neglect to maintain". As to the former consideration, relying on the case of Sheldon v. Sheldon⁽¹⁾, he took the view that the Respondent's "occasional silences and withdrawal from matrimonial relations" did not constitute conduct of such a grave and weighty nature as to have rendered the Petitioner's married life unendurable, and did not, therefore, constitute cruelty such as would entitle the Petitioner to a decree of divorce on that ground. Furthermore, he commented upon the fact that the evidence of deterioration in the Petitioner's health was such as to be virtually non-existent.

8. As to the other cause of complaint - which he regarded as the Petitioner's main complaint - namely, the Respondent's failure to maintain the Petitioner and her daughter - the learned judge considered - and I quote from his judgment - that "obviously one must avoid bringing about a position whereby neglect to maintain becomes a new, unauthorized, ground for divorce." Undoubtedly, upon the authority of Dunn v. Dunn⁽²⁾, wilful neglect to maintain can, in itself, constitute cruelty such as to found a petition for divorce. But each case must necessarily be considered upon its own facts. As the learned judge pointed out, the difficulty in the present case was in determining whether the Respondent's lack of provision for the household was wilful or merely due to economic circumstances. He was of the opinion that the evidence in the case fell far short of establishing that it was wilful.

9. For myself, whilst agreeing with the learned judge in his ultimate decision, I would have been disposed to approach this case upon different considerations from those adopted by the learned judge. Mr. Arculli, who put forward every argument that could be advanced in favour of the Petitioner, contended that the Respondent's conduct in asking for money from the Petitioner and then, upon her declining to give him money, refusing to talk to her for long periods of time and withdrawing from all marital relations with her, constituted conduct of such a kind that, in the normal circumstances of matrimonial life, no spouse ought to be called upon to endure, and therefore constituted cruelty in law.

10. Mr. Arculli contended that, in effect, the Respondent's conduct in withdrawing from normal conjugal relationship because his wife did not consent to his demands for money was such that in order to achieve a resumption of such relationship the Petitioner had to accede to his demand or request for money. She had to pay for a normal relationship which she was entitled to expect as a natural element in married life. This happened not once, but three or four occasions, and on each occasion for a duration of three to four months. The judge regarded her as a strong, healthy woman. To have to pay for her husband's attentions was no doubt a matter which she must have found both embarrassing and distressing. She complained that as a result of his attitude towards, and treatment of, her, she suffered from backaches and headaches. The learned judge found her, in general to be a witness of truth.

11. In the case of Noble v. Noble⁽³⁾ Searman J. said:

Those tests as to what constituted cruelty were fully accepted by the court of appeal.

12. In what is now accepted as the leading case as to what constitutes cruelty in law - the case of Gollins v. Gollins⁽⁴⁾ - Lord Pearce, in the course of his speech in the House of Lords, in commenting upon the expression "reasonable wear and tear of married life", described it as "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." Later, he went on to say:

13. In the present case, the learned judge has commented upon the fact that there is no medical evidence to support the testimony of the Petitioner. In regard to that aspect Mr. Arculli has urged - and, in my view, with compelling force - that where one is dealing with a Chinese woman of the class and status in life of the Petitioner, it would be in the highest degree improbable that such a person, in such circumstances, would have consulted a doctor as to her physical condition caused, as she alleges, by her husband's withdrawal from conjugal relationship. Bearing in mind that the learned judge himself described the Petitioner as, in general, a witness of truth, I see no reason to disbelieve her testimony that the headaches and backaches of which she complained were directly attributable to the Respondent's conduct towards, and treatment of, her. Applying the test accepted by Scarman J. and bearing in mind the words of Lord Pearce, I would have been disposed to take the view that both parts of the test postulated by Scarman J. were satisfied and that the Respondent was guilty of cruelty, in the accepted legal sense of the word, in his behaviour towards the Petitioner.

14. Unfortunately, however, the matter does not rest there. It is admitted that after leaving the Respondent in July 1966 and living apart from him for two months, the Petitioner returned to him in September 1966 and thereafter continued to live with him until she finally left him in July 1967. In so returning to him she must be deemed to have condoned his previous conduct. To my mind, the crucial question in this case is whether it can be said, upon the facts, that the Respondent's subsequent conduct towards, and treatment of, the Petitioner constituted some further matrimonial offence which could be said to revive the earlier matrimonial offence of cruelty so as to make it a valid and sufficient ground for granting a decree of divorce. It is said that acts which would not necessarily be sufficient to obtain relief may yet be sufficient to revive a condoned offence. In answer to a question from me Mr. Arculli conceded that, upon the evidence on the record, there were no grounds for believing or accepting that after the Petitioner returned to him, the Respondent had been guilty of conduct similar to that of which the Petitioner had complained before she left him. Indeed, the only substantial complaint made by the Petitioner of the Respondent's conduct after she returned to live with him was that he objected to her wanting to go out and obtain employment for herself, and that when she sought to leave the house on the 6th of May, taking her daughter with her, he prevented her from going and struck her two blows on the arm. The doctor called to give evidence described that injury as a mere bruise, and it is apparent that the learned judge attached little or no weight to it. It is to be observed that at that time the Respondent was himself in employment. With reluctance, I have come to the conclusion that there was really no sufficient evidence of any adverse conduct or beheaviour by the Respondent, after the Petitioner had returned to him, that could fairly and reasonably be said to revive what I, for my part, would have been disposed to accept as the matrimonial offence of cruelty committed by the Respondent prior to the date the Petitioner had left him in July 1966.

15. For these reasons I would accordingly dismiss this appeal.

Blair-Kerr, J.: I concur.

Representation:

R. Arculli (Kho & Lo) assigned for Petitioner/Appellant.

(Petition undefended in the lower court)

(1) (1966) 2 All E.R. 257

(2) (1962) 3 All E.R. 587

(3) (1964) P. 250 at 251

(4) (1963) 2 All E.R. 966 at 991 & 992