The parties, both young Europeans, were married, in Kenya, on 13th December, 1952. The applicant, the wife, deposed that from her marriage, until 18th January, 1953, the respondent insisted upon having very frequent marital intercourse with her, in spite of refusal, the acts causing her intense pain and that the persistence of the respondent caused her to become unwell. On 8th January, 1953, the respondent, against her will, had sexual intercourse with her. On 18th January, 1953, the applicant entered a hospital where, by surgery, a cyst was removed from her left ovary and her uterus manipulated into a normal position. The applicant's medical adviser informed her that the probable result of the operation would be to put an end to the pain formerly suffered during marital intercourse. The applicant refused to cohabit and, on 22nd January, 1955, took out an originating summons for leave to file a petition for divorce, notwithstanding that three years had not passed since the date of the marriage. The copy petition attached to the summons showed cause for dissolution of the marriage on grounds of cruelty. The respondent entered an appearance but did not file an answering affidavit. At the appointment for the preliminary consideration of the application, the Court could not deal with the issue of reconciliation because the applicant had not complied with rule 2 (2) of the Matrimonial Causes Rules, requiring disclosure of attempts and made an order for disclosure on the applicant. At the adjourned appointment, a fresh affidavit filed by the applicant still did jiot condescend upon the true facts of reconciliation and a peremptory order was made on the applicant who filed a third affidavit revealing for the first time that the respondent had made several attempts to be reconciled, but these, as well as those of friends, she had repelled, stating she felt an "invincible repugnancy" to her husband whom she alleged had "for his own selfish gratification inflicted pain upon her".
Held (22-9-55):
(1) English practice disclosed that upon an originating summons brought under rule 2 of the Matrimonial Causes Rules it was usual to entitle the views of the Court as a "Ruling" and to make a final "Order".
(2) The applicant had failed to make a reasonable attempt at reconciliation by consulting relatives, a clergyman, a probation officer or any other person specially qualified to help. The breakdown of the marriage was, at first, due to the physical abnormality of the applicant but, after surgery, which had completely cured her disability, she disclosed mental maladjustment and had refused every reasonable attempt by her husband to be reconciled, which attempts she had wilfully and dishonestly concealed from the Court and had shown she was not of a reasonable frame of mind to be reconciled. Even had there existed grounds for a finding of exceptional depravity or exceptional hardship, the Court would not have exercised its discretion in her favour.
(3) While the proposed petition prayed for dissolution of marriage on the grounds of cruelty the Court had not to try the petition. Whether or not the allegations in the affidavits, even if accepted, amounted to cruelty in law this would not suffice unless the applicant was able to show that the respondent had behaved with exceptional depravity or, alternatively, she had suffered exceptional hardship. The intention of the legislation was to moderate rash conduct and to prevent one spouse from rushing out of ill-considered matrimony within the first three years and so forbade presentation of a petition unless there were grave and exceptional grounds.
(4)The legislature, in an important enactment governing status, had, advisedly, not used "depravity" and "hardship" standing alone but had qualified both by the word "exceptional". Cruelty in law might not amount to exceptional depravity nor might such cruelty result in exceptional hardship. The law contemplated that a spouse, after an ill-advised marriage, might stiffer from depravity or hardship but this was ordinarily found and if, not amounting to anything exceptional, could not entitle an applicant to leave to present a petition within three years of marriage.
(5)There, conceivably, might be cases where although the conduct of one spotise did not amount to exceptional depravity that conduct, combined with the other circumstances, might result in exceptional hardship suffered by the other and, in that cvent, the Court would give leave.
(6) The instant application showed neither exceptional depravity on part of the respondent nor exceptional hardship suffered by the applicant. But even if there had been and even had the conduct of the respondent been sadistic to the point where it could be found he had behaved with exceptional depravity or it could have been found that the conduct, although not amounting to exceptional depravity combined with the risk to health of the applicant, amounted to exceptional hardship, the applicant would not thereby have been entitled to leave as of course. The Court in the event of either of these findings was not bound but retained a discretion and in the circumstances would not have been moved in favour of the applicant.
Application dismissed. At a later hearing, the parties being ad idem on costs the
Court ordered each to pay his or her own costs.
Cases cited : Winter v. Winter, (1944) 73 C.A. Blunt v. Blunt, (1943) A.C. 517 H.L. Fisher v. Fisher, (1948) P. 263 C.A.; Charleshy v. Charlesby, (1947) 176 L.T.R. 532; Bowman v. Bowman, (1949) 11 . 353 C.A.
Mrs. Kean for applicant.
Shaylor for respondent.
