C v. C

HCMC000184/1970

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION No. 184 of 1970

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Coram: Briggs J. in Court

Date of Judgment: 27th March, 1971

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JUDGMENT

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1. This is an undefended divorce petition brought by the husband on the ground of cruelty, which came before me on Saturday March 20th. Having heard the evidence I adjourned in order to consider certain authorities placed before me by Mr. Swaine who appeared for the Petitioner. The case presents unusual characteristics and for reasons which will be evident, I will avoid using the names of the parties.

2. The parties were married in Hong Kong on October 3rd 1958, the Petitioner being then 25 and the Respondent 24. Neither party had been married before.

3. The married couple spent their honeymoon in Singapore. The Petitioner wished to consummate the marriage but the Respondent refused to have sexual intercourse. According to the Petitioner the reason she gave was that she did not wish to have a child since the parties could not afford the expense of a family. At that time the Petitioner was earning $600 per month which he says, was ample in 1958 for the expenses their household and of a child's upbringing.

4. The parties returned to Hong Kong and set up their matrimonial home in premises which already belonged to the Petitioner.

5. Though he did everything in his power to persuade her the Respondent continued to refuse sexual intercourse to the Petitioner. This he says affected his health. He lost weight, became nervous and could not sleep. He consulted a psychiatrist and received treatment at the end of 1959 but it did not give him any relief.

6. Meanwhile his wife persisted in her refusal to allow him his marital rights. She always gave as her reason that she was unwilling to bear a child. However in the early part of 1961 which is two and a half years after the marriage, she had a change of heart. According to the Petitioner she said that she now wanted to have a child. Accordingly she allowed him to have sexual intercourse with her to that end in the summer of 1961. This occurred on only four or five occasions. As soon as the Respondent realised that she was with child she refused any further attentions of the Petitioner.

7. A daughter was born on May 12th 1962. But the Respondent refused to allow the Petitioner to resume sexual intercourse though he begged her to allow him to act towards her as a normal husband does to a normal wife. She gave as her reason that she did not wish to have another child.

8. The health of the Petitioner deteriorated and he started a course of sleeping tablets, which has continued until now.

9. The Petitioner persisted in his requests and pointed out to the Respondent the effect her continued refusal was having on his health.

10. In the summer of 1964 the Respondent relented and allowed the Petitioner to have sexual intercourse to a very limited extent. The Petitioner gave two reasons for this: He said that the Respondent had suddenly evinced a desire to have a son. And as a quid pro quo he agreed to pay for a trip to the Olympic Games in Japan.

11. Intercourse took place on four or five occasions and Respondent left for Japan. On her return she said she was pregnant and a son was born on June 11th 1965.

12. Since then there has been no sexual intercourse at all.

13. The Petitioner told me that his health in consequence has progressively worsened. He became irritable, nervous and depressed. And he continued to suffer from insomnia.

14. In addition towards the end of 1965 the relationship between the parties deteriorated further. The Respondent accused the Petitioner of keeping a mistress, upon occasion making this accusation before the daughter of the marriage. The Petitioner said that the accusation was quite untrue and that its repetition distressed him considerably.

15. In the middle of 1969 there was a quarrel between the parties during which the Respondent told the Petitioner to move out of the matrimonial home. This he refused to contemplate and the quarrel became serious. The Respondent even called in the police. In September of the same year the Respondent caused a letter to be sent to the Petitioner from the Yaumati District Office telling him to leave what was his own property. This remained unanswered but from then on the Respondent refused to speak a word to him. Finding this conduct more than he could bear, the Petitioner moved to his present address in November 1969.

16. The Petitioner is a business man and part of his duties is the entertainment of foreign and other customers in the evenings. This means that he sometimes kept late hours.

17. The Respondent wanted him to be home by 10.00 p.m. But this was not possible. Accordingly on some occasions, and the Petitioner said there were more than 20 such occasions, she locked the Petitioner out of the house. She refused to answer the door and he was obliged to seek refuge in apartment houses.

18. At the time of the filing of the Petition the parties had been married for 12 years. Only for two very brief periods was the Petitioner allowed sexual intercourse and then only for the purely utilitarian purposes of the production of a child. It is clear from the story of the marriage that the Respondent has shown no love or affection towards her husband. And that her attitude has grown progressively more hostile towards him, finally causing him to leave her.

19. Counsel for the Petitioner relies upon the cases of Evans (1965) 2 All E.R. 789 and Sheldon (1966) P. 62. But before coming to them I will refer to P. v. P. (1964) 3 All E.R. 916. In that case it was held that when a husband abstained from sexual intercourse with his wife because he had lost all sexual desire for the opposite sex that would not of itself amount to cruelty. And that this was so even though the health of the wife was obviously affected by his conduct.

20. The same would be true if the Petitioner was a husband and not a wife as in that case. P. v. P. is, I think disguishable from the present case. There is no evidence before me that the reason why the Respondent refused to allow the Petitioner to have sexual intercourse was that she has ceased to have any desire for sexual intercourse at all.

21. In Evans v. Evans (1965) 2 All E.R. 787 it was held that refusal of sexual intercourse could only amount to cruelty, when it is, and I quote from the headnote, "Unjustified and if in all the circumstances of the case it can properly be reguarded as a grave and weighty matter," and if it has an adverse effect on the health of the other spouse. In the present case there is no evidence that the wilful refusal was justified in any way. In that case, as in the case now before me, there were other matters relied upon beside refusal of sexual intercourse to constitute cruelty.

22. The leading case is Sheldon v. Sheldon (1966) P.62. In that case the parties lived harmoniously together for eight years after which the husband refused to have sexual intercourse. This persisted for about six years and caused serious injury to the health of the wife who therefore petitioned to a divorce on the ground of cruelty. The suit was undefended and the sole allegation of cruelty was the refusal of the husband to have sexual intercourse.

23. In allowing the appeal the Court of Appeal said:-

"..... that the conduct of this young husband, having no physical or psychological infirmity, and after years of normal marital relations, in persistently refusing his young wife sexual intercourse over a long period without explanation or excuse, knowing that it was causing grave injury to her health, constituted cruelty in law such that the wife ought not to be called on to endure any longer; and as the injury to her health caused by that conduct had been corroborated by a medical man who had seen both parties, she was entitled to a decree on the ground of his cruelty."

24. It will be seen that the Court refers to the corroboration of the evidence of the injury to the health of the wife by a "medical man." In the case before me there was no such evidence. The Petitioner did consult a psychiatrist and was treated by him some eleven years ago. But that psychiatrist was not called as a witness. I do not think that that is fatal to the Petitioner's case. As was said in Evans v. Evans where there was such corroboration evidence from a doctor, a state of anxiety or depression may be caused by family trouble, but of course it may also be caused by other troubles.

25. The evidence of the psychiatrist in the present case would not, I think, have carried the case of the Petitioner much further.

26. He was examined eleven years ago and the conduct of which he was then complaining continued and persisted for the whole of those eleven years except for two very short periods. In addition it is apparent that the attitude of the wife towards the husband has become progressively more irritating and intransigent.

27. I saw the Petitioner in the witness box. He is now 38 but he looks far older. He appeared to be unhappy and depressed. What is of far more importance is that he was a transparently honest witness. He neither prevaricated nor did he exaggerate his evidence. He attributed his breakdown in health to the whole attitude of his wife towards him throughout the whole period of the marriage until he left her as a result of the persistence in that conduct in November 1967. I accepted that evidence without reserve. It is also apparent that living with him as she did, the wife must have noticed and been aware of the deterioration in the health of the Petitioner.

28. In Sheldon v. Sheldon the court was not in my view laying down a rule but that must be corroborative evidence from a doctor. What is necessary is that the court must be satisfied that there is proof that the injury to the health resulted from the persistent unjustified refusal of sexual intercourse.

29. Of course this case goes further than that since there were allegations of cruelty other than the wilful refusal to have sexual intercourse. I have dealt with these fully above.

30. I am satisfied that the Petitioner is entitled to a decree on the ground of cruelty.

31. The Petitioner maintains the Respondent and the two children of the family is what was the matrimonial home. The children are still young and no order for their custody is sought.

32. Satisfactory arrangements have been made for the upbringing and education of the children of which I approve.

33. There will therefore be a decree as prayed. This marriage has completely broken down. The parties have been living apart since November 1969. The Petitioner's nervous condition appears still very uncertain. I give leave to make the decree nisi absolute forthwith as I think it is in the best interests of the parties to do so.

Representation:

J.J. Swaine (Shea & Co.) for Petitioner

Judgment read in Court.