Ave. 7, 1964 THE WEEKLY LAW REPORTS [1964] 1 W.L.R, 1085 of legal language, to be properly described as a loan and repay. H. L. (B.) ment of a loan, so that however hard it may seem section 408 is 994 applicable. ae De Vio I would dismiss this appeal with costs. = Biko even Appeal dismissed. “Gowns, Solicitors: Simmonds, Church Rackham & Co.; Solicitor of Inland Revenue. a G. {court oF arpsst.] *LE BROCQ v, LE BROCQ. Ga. 1964 Husband and Wife—Cruelty—ests of—Gravity of conduct— Cruel” — June 10,1 ‘means eruel—No esoteric or artificial meaning—Husband of retiring Garay and submissive nature, silent and morose, with no interest in family ResTo0 and life—Refusal to discuss money matters with wife—Whether conduct sufficient to constitute cruelty Husband and Wije— Desertion — Actual desertion — Spouses sharing home—Separation of hearts, bodies and speech—He provided; she cooked for both—Whether wife in desertion. Fact or Law—Cruelty—Gravity of conduct—Whether sufficiently grave to constitute eruelty—Question of fact. ‘The parties were married in 1938 and had two daughtors. In 1962, the wife petitioned for divorce on the ground of cruelty. She alleged two minor acts of physical cruelty in 1956, which the commissioner dismissed as trivial, and meanness throughout the married life, which she failed to prove, but her main complaint was that the husband had persistently neglected and ignored her and failed to take sufficient interest in her and the family. She complained that from the end of 1945, when her husband returned from war service, he was morose and silent, vague and withdrawn from her, taking’ no part or interest in their married life or in the two daughters, Until 1953 tho marriage was reasonably happy but thereafter relations deteriorated. In 1955 the wife was treated for shock on the death of her mother and she developed an ulcer. In February, 1956, she brought about a partial separation from her husband by excluding him from the matrimonial bedroom. She put a bolt on the inside of the door and he had never since cecupied the room. ‘The husband took no steps to remedy the situation and neither had attempted a reconciliation. Since 1956, there had been no avoidable communication between the parties. They continued to live in tho same house, which the husband was buying on mortgage, the husband provided certain housekeeping money; the wife cooked the meals, but the husband was not allowed to take his moals with her or the daughters and had been wholly excluded from family life. ‘Tho commissioner found that the marriage broke up because the husband was too submissive, because he withdrew himself into shell and could not assert himself. He found that the husband’s conduct amounted to cruelty, that its cumulative effect affected the wife's health and so entitled her to withdraw from full1086 cA. 1084 ‘Le Brocg Lr Broog. (i9e4] 1 WLR. THE WEEKLY LAW REPORTS Ava. 7, 1964 cohabitation as it was conduct which she ought not to have been called upon to endure. He granted the wife a decteo nisi and dis- missed the husband's cross-petition based on desertion. ‘On appeal by the husband: — Held, (1) that “‘cruel” meant eruel; cruelty had no artificial or esoteric meaning in the law of divorce. Before a charge of cruelty could be made out there must be some misconduct on the part of the offending spouse of a grave and weighty nature which an ordinary man or a jury would deseribe as cruel in the ordinary and natural meaning of that word (post, pp. 1089, 1083, 1096). Dictum of Lord Denning MLR. in McBican v. McBwan (1964) 108 Sol.J. 198, C.A. applied. Gollins v. Gollins [1964] A.C. 644; [1963] 3 W.LR. 17 [1963] 2 All E.R. 966, H-L.(E.), considered. (2) That there was no evidence of eruel conduct on the part of the husband and his appeal would be allowed (post, pp. 1093, 1095— 1096). Per Salmon L.J. ‘I do not consider Gollins v. Goltins (supra) “as having altered the Iaw, save that it gave the quietus to the “doctrine that conduct in order to be cruel must be ‘aimed at” “the party complaining’ (post, p. 1087). (3) Held, further, on the cross-appeal, that there was no evi- dence of desertion and the cross-appeal must be dismissed. Decision of Mr. Commissioner Richards Q.C. reversed. Appeat. from Mr. Commissioner Richards Q.C. A wite, Minnie Clara Le Broeq, in 1962 petitioned for divorce on the ground of the cruelty of her husband, John Philip Reginald Le Brocg. Her complaints fell into three categories: (1) two minor acts of physical cruelty which took place in 1956, (2) alle- gations of meanness throughout the whole marriage, and (8), her main complaint, that the husband persistently neglected her and ignored her and failed to take sufficient interest in the family or in her and the two daughters of the marriage. ‘The commissioner found that the two acts of physical cruelty were trivial in nature and did not amount to cruelty and that the wife's allegation of meanness on the part of the husband had not been made out. In relation to her third complaint, he found that the cumulative effect of the husband’s conduct injured the wife’s health and did amount to cruelty. He granted the wife a decree nisi on the ground of the husband’s cruelty and dismissed the husband's cross-petition based on desertion. The evidence was that the parties were married in April, 1938, when both were 26 years old. ‘There were two daughters of the marriage, born in 1940 and 1947. From August, 1938, they lived in a house which the husband, a bank clerk, bought on mortgage with the assistance of his employers, the Westminster Bank. The husband had always kept up the mortgage payments and con- tinued to do eo. In 1940 the husband, whose occupation was a reserved one, volunteered for the Royal Air Force. The wife complained that he did not consult her and that the first she knew of it was after the birth of her first child. The husband joined the Royal Air Fore two or three months later and remained in the serviee, part of the time in Egypt, where he performedAvo. 7, 1964 THE WEEKLY LAW REPORTS [1964] 1 WLR. clerical duties, until the end of 1945. ‘The wife had no cause to complain of her financial position during that time. Her evidence was that she only got a wife’s Royal Air Force allowance, but in fact she had access to a joint account into which the bank paid the difference between the husband’s pay as a bank clerk and his service pay. Part of the burden of the wife’s complaint was that when the husband returned from Egypt after the war he was a different man, he was silent, morose, withdrawn from her, taking no part in or interest in their married life. She said: “He was not there.” She said she thought he must be suffering from some sort of mental illness. Her evidence as to that was: “He used to start this sort of creeping about the place, and he “was vague and far away; it was one of these peculiar things, ‘and I thought there was something wrong with him mentally.”” She thought he needed medical advice. She said: ' He acted so ‘ peculiarly in all sorts of things, it is hard to keep pinpointing “anything, but he did not seem like a husband at all.’’ She also said: ‘I suppose leading up to domestic upheavals from time “to time and things, then he began this would not speak or talk “anything over, which was awfully exasperating.” When the commissioner put to her: ‘‘ At all events he was in a world of “his own?" she answered: ‘Absolutely; that is it. ‘That is “the words the doctor used, actually.” Through the family doctor, the husband was eventually persuaded to consult a “ men- “* tal doctor '’ but that doctor was called away and no diagnosis ever resulted. Up to 1958, the marriage (as the commissioner found) was reasonably happy one. In that year, the husband had a legacy of £1,000 which he spent among his family. He gave his wife and daughters £100 cach, bought a car, a washing machine, a reitigerator and a motor bieyele for himself. In 1955 the relation- ship deteriorated and there was no finding as to why that hap pened. In that year the wife’s mother died and she was treated for shock. She was also found to be suffering from a gastric uleer. The husband said she was quite a different person and he did not know whether it was shock at her mother’s death or whether she was approaching the menopause and therefore was apt to be a little unaccountable. In February, 1956, the wife by her own act brought about a partial separation from her husband. The husband agreed to change the matrimonial bedroom to another room in the house, but after he had slept in the new room one night the wife excluded him from it, putting a bolt on the inside of the door and locking it after she left it. The husband had never been in the matri- monial bedroom since. He slept in the younger daughter’s room and she in the matrimonial bedroom. After a further quarrel at the end of 1956 there had been no further avoidable communi- cation between the parties. They lived in the same house, the husband paid the wife housekeeping money of £6 a week, she cooked the husband’s meals but he was not allowed to take them 1087 GA. 1964 ‘Le Brocg e ‘Le Broce.1088 CA. 1964 Le Baoce Le Broce. (ise) 1W.L.R THE WEEKLY LAW REPORTS Avo. 7, 1984 with the family. He was excluded from the family circle alto: gether. Neither party ever made any attempt at reconciliation. ‘The wife said she did not bother and the husband said he thought it was hopeles: ‘The commissioner found that the breach took place in 1956 and said that in substance the case depended on whether or not the withdrawal of one party from the other—the fact that they lived at arm’s length as from 1956 though under one roof—was occasioned by the attitude of the husband to the wife over some period of time. He described the wife as a domineering woman and the hi band as follows: ‘The [husband] suffers from some form of ‘inferiority complex, or put in another way, a submissiveness “‘ whereby he is unable to stand any criticism by [his wife] in “any regard and folds up into his shell on every occasion. That has been the position for some time, . .. One has very great sympathy with the [husband] in this ease, because I think his conduet flows from @ personality for which he is unable to help himself and that if he had only. . . braced himself . . . to take a greater share in the marriage as a partnership, instead of “ being completely submissive . . . he might have asserted himself a little more. T feel that for whatever reasons it occurred “and for whoever’s fault, the initial trouble really started fom “somewhere about 1954 or 1955. The [husband] did withdraw “‘in this way which made the position in the household an ex- “tremely unhappy one, not only for the [wife], but for the ‘children, for whom. I have little doubt the [husband] has a “very great and genuine affection, which again because of his “make-up he has been unable to express to them. Tn my view this withdrawal of the [husband] in every sense except up to “1956 of sharing the family bed and having meals together and otherwise living apart, which I find was the situation, did have ““an effect on the [wife's] health . . . the situation had grown “* into one which she felt she could face no longer.”” He concluded: “aking all the evidence, and taking due “account of temperaments, and the circumstances of the parties “‘and the conduct complained of, in my view the cumulative “ effeot was such that the wife, rightly in my view, was entitled “to withdraw from cohabitation in its fullest sense, and put in “another way, thatthe conduet was such that the wife, I use “the words of Lord Pearce in Gollins v. Gollins,* ought not to “have been called on to continue to endure it.'"” He accor- dingly found cruelty to have been made out and pronounced a decree nisi accordingly. The husband appealed. He also appealed against the dis- missal of his cross-petition on desertion + fl9ed] A.C, 644, 695; [1963] 8 W-L-R. 176; (1963] 2 AN E.R. 966, ELLE).Ava. 7, 1964 THE WEEKLY LAW REPORTS [1964] 1 W.L.R. Eri¢ Crowther and Richard Body for the husband. Mervyn Heald for the wife. The following cases (other than those referred to in the 1089 ca. 1964 ‘Le Baoog judgments) were cited in argument: Watt (or Thomas) v. Ls Baooa. Thomas ?; Simpson v. Simpaon*; Safier v. Safier*; Bartram v. Bartram §; Bull v. Bull.* Harman L.J. This is another divorce suit depending on what used to be called mental cruelty—cases which are often difficult and seem liable to produce great differences of opinion in judicial minds. Counsel for the respondent husband ended his address with tho words: “'‘ Cruel’ moans ‘ cruel.’ "” With that I agree. I think moreover that “‘ cruel” is not used in any esoteric or “ divorce “court” sense of that word, but that the conduct complained of must be something which an ordinary man—or a jury: I suppose this court sits as a jury—would describe as “‘ cruel” if the story were fully told. ‘There need not be blows. (There is no question here now of blows.) There need not be any physical force used (there can be words far harder than blows with a saucepan) but there must be something as to which a jury would be able to say, when they heard it related. “ Well, that was cruel of him," before ‘a husband can be branded with the serious charge of being cruel to his wife. Now I shall try to relate the history of this case to the imperfect extent to which we know it; and I think it right to preface that by saying that this suit was not started till September 18, 1962. It did not come to trial, even after that, with any great dispatch. So that here we are, in 1964, milling over events which happened nearly ten years ago; and with the best will in the world (and there is nobody here who has tried to deceive the court: we must accept the commissioner's view on that, and I think it is clear) ten years makes a difference to recollection and it becomes easier and easier as time goes on for the looker-back to be self-deceived, being a person who probably did not remember much about the events at all until his or her recollection was stirred up by his solicitors asking questions about what happened at this, that or the other date. So although dates here are sometimes in doubt and the sequence of events has become confused, I think that the petitioner should certainly have no advantage on that: rather she must, having made that particular bed, lie upon it, and if there is difficulty in ascertaining what happened in one year or another it is her fault because she could have brought this suit —if she is justified in it—in 1958 at the latest. [His Lordship outlined the history of the case up to 1956 when the wife excluded 2 [1947] A.C, 484; 69 TLR. 814; 8 (1950) P. 1; 65 TLR, 492; [1047] 1 All E.R, 682, HL. Ge. [1949] 9 AN E.R. 970, C.A. * [1951] P. $20; [1051] 1 TLR. "© [1953] P. 924; [1953] 8 W.LR. 1019; [1951] 1 AN E.R. 955, D.C. 996; [1959] 9 All E.R. 601, O.A. (1964) The Times, April 17. Vou 1 ™()1090 CA. 1964 ‘Le Broog Lz Broce. Barman LJ. (194) 1 W.L-R, TRE WEEKLY LAW REPORTS Avo. 7, 1964 the husband from the matrimonial bedroom and continued: ] From then on events went from bad to worse. The husband made no real effort to bring his wife to book or to confront her with the deterioration of the situation. He did not play his par as aman should under such circumstances. He said he thought that as she perhaps had her menopause coming on he had better wait and see. But in fact he is the kind of man who runs away from trouble; he withdraws (as the commissioner said) into his shell, and he will not face difficulties or discussions, His wife, on the other hand, was o rather volatile, lively kind of person who likes a bit of a dispute and perhaps a certain amount of a row occasionally, as many married people do, and when she puts anything to him or poses him a problem all he does, says she, is to walk ‘out of the room and say nothing: There appears to have been some sort of relationship between them for the rest of that year, 1956, but there was a row at the end of it about where they should spend Christmas and thet was the final breach between them. I think that they have not spoken to each other since except that the husband says ‘’ Thank you" if the wife gives him a onp of coffee. She continues to provide him with an evening mesl and to set out his morning meal; but he is never allowed to take those meals with her or with the daughter: he is excluded from the family circle altogether. Things have gone since then from bad to worse. Both have, I think thrown their hands into the air as far as the marriage is concerned and not tried very much any more. ‘The wife said that she “‘ did not ““bother.”” The husband said that he thought it was hopeless. So there the situation has been. They are still living under this same roof. She is still preparing his evening meal. But there is no other communication between them. In 1962 the wife started these proceedings. Why she started them then one does not know. She gave an enormous list of particulars of a very trivial sort and going right back to the date when her elder daughter was born, when she complained that the husband did not stay away from the bank when she was in labour. That list goes on with a host of trivialities and comes to the time when the break occurs in 1956. ‘The commissioner says that there are three categories of events, The first of them were two events consisting of blows, and the commissioner dismisses those as too trivial to take any notice of. I think we can concur in that ab once; and really no reliance was placed on that in this court. The second one was that the wife accused her husband of being stingy with his money. In my view and, I think, in the commissioner's view too, she really has entirely failed to make out that charge. She never put before the court any particulars of his income at any particular time to show that he was allowing her too little. He was the only breadwinner in the house. He is allowing her at the present moment only £6 a week, which is rather little, but she has not asked him for any more. She merely complains that in the past‘Avo. 7, 1964 THE WEEKLY LAW REPORTS [1964] 1 W.L.R. when she wanted money for her daughters he did not give it her. He says that he had not got it in those days. She never proved that he had; and so the stinginess item goes out. of the picture altogether and was indeed dismissed by -the: commissioner who said: “I do not think the failure of the husband to meet the "small outgoings which the petitioner has brought to my notice *t really worried her very much."* But the third item is the matter on which the discussion has raged now for the Jast two days. ‘‘In substance” (says the commissioner) "this case depends on whether or not the with- “ drawal of one party from the other—the fact that they lived at ‘‘erm’s length as from 1956 though under one roof—was “occasioned by the attitude of the respondent to the petitioner "over some period of time, and, as Mr. Heald says, one gets “tgome assistance as to the position before February, 1956, by “ seeing what happened after 1956.” Therefore the commissioner points his finger, in my opinion rightly, at the events before the putting of the bolt on the bedroom door in February, 1956, and nothing that happened since then is really of any materiality. Of course the difficulty has been that a great deal of the evidence obviously was pointing to the events of the subsequent period, and as between the subsequent period and the preceding period events got confused in the witnesses’ minds. That is inevitable and, as I say, can only be put down against the account of the petitioner. The commissioner says this: ‘‘ One has very “great sympathy with the respondent in this case, because T “think his conduct flows from a personality for which he is “‘gnable to help himself and thet if he had only clenched his “fists, so to speak, braced himself is a better way of putting “it, to take a greater share of the marriage as a partnership, “instead of being completely submissive, and for instance said ““*T am not going to ask my wife whether I should do up the “zoom: T am going to do it,’ and so on, he might have asserted ‘himself a little more.” ‘The commissioner thus in effect says that the disaster happened and the marriage became wrecked because the husband was too submissive, because ho withdrew himself into his shell, because he would not assert himself more than he did, or could not, his temperament being what it was; and he holds in the end that the petitioner was entitled to with- draw from cohabitation in its fullest sense and that the conduct was such that the petitioner, in the words of Lord Pearce in Gollins v. Golling,t ought not to have been called on to continue to endure it. Now I must say that if that be the law it goes further than any case of which I have any experience. If it be “ cruel * to be too submissive, to fail to assert your personality against your wife, simply to walk out of the room when she asks you » [aged] A. ELE, Vou 1 ™@) 644, 695; (1963) 8 W.L.R. 176; [1963] 2 All E.R, 900, 1091 CA. 1064 ‘Le Buoog Lx Baooa. Harman L.1092 GA. 1964 ‘Le Broce ‘Lm Broce. Harman LJ. [1964] 1W.L.R, THE WEEKLY LAW REPORTS Ava. 7, 1964 about this, that or the other controversial subject, I really do not know what the English language is coming to. “Cruelty” is what it always was—some grave and weighty misconduct on the part of the offending spouse which causes injury to the health of the other spouse. It is said here, and I propose to accept it for the purposes of this appeal, that the wife worried herself into a state where, in 1955 or 1956, she had an uleer and that it injured her health because she became so infuriated by the attitude of the husband. It is not enough, in my view, to say that the wife’s health was suffering because of her state of mind. There must be some weight in the cause which produces that state of mind and the weight must consist in something done by the husband. I do not say that there may nob be degrees of tacitumnity, of refusal to co-operate, of idleness, which would justify the epithet “‘eruelty.”” But I think that in this case the commissioner was deceived by the decision of the majority in Gollins v, Gollins.? I was in the minority in the Court of Appeal® in that case. My view did not prevail in the House of Lords, and of course I accept it that the House of Lords was right. Nevertheless the words which the Commissioner cited from Lord Pearce’s speech * do seem to me to set the ball rolling down that slippery slope which may end in the last resort in absurdity. If everything which the wife cannot be expected to put up with is to amount to cruelty, T do not know what conduct we may not come to in the end. It seems to’me that there must be cruel conduct which she must not be expected to put up with before we get to that position; otherwise one goes on from a case on the edge (as Golline v. Gollins * was) to a case a little more on the edge, as this is, and in the end the whole thing becomes absurd. ‘This is well illustrated in McEwan v. McEwan, * which has recently come before another Division of this court; Lord Denning M.R. had before him a case where the commissioner had made fa decree against a husband on the ground of his cruelty for reasons very similar in many ways to these. ‘The Master of the Rolls said this The allegations of the wife against the husband ‘‘eome down eventually to this, that he was too silent; he did not discuss things with Ther when she raised such matters as “to where they should live, or what should be done about the «education of the children and, above all, what should be done “with the money. He would not discuss them with her: he “would say for instanee, ‘You do as you like’ and phrases of “that kind. IE you go through the whole of the evidence, that is “ the gist of it. So much so that after hearing the wife’s evidence ‘and the son, the commissioner summarised her evidence in this “way: ‘I confess that the wife made a poor impression on me in «© the witness-lox. On her own evidence it seemed to me that > [1964] A.C. 644. 4 [96d] A.C, 644, 695, 4 f1964). P. 82; [1962] 3 WLR. 5 [1964] A.C. 644. 3944; [1902] 8 All E.R. 897, C.A. © (964) 108 Sol.J. 198, C.A.‘Avo. 7, 1964 THE WEEKLY LAW REPORTS [1964] 1 W.LR. “she was @ woman who nagged her husband incessantly. Tt *'* seemed to me on her own evidence that she nagged him about ‘where they should live, in which bedroom they should sleep, ‘what should be done about the care of their sick child, about “** the education of the children, about the place whore he should “have his employment, and above all, the amount of money “that should be spent under her supervision.’ ”” Having said all those things, nevertheless the commissioner had come to the conclusion that he ought to conviet the husband of cruelty. The Master of the Rolls ended in this way’: "I must say, having “considered all the evidence, I am satisfied that this case of “cruelty was not made out. There was no doubt silence and a “failure to discuss. ‘The husband did not discuss all these “ matters with the wife as he should have done. She was a gay, “volatile, talkative creature. He was quiet and tacitumn. A “man of few words, But I would be sorry to think that silence, “even to the extent shown in this case, amounted to cruelty “in law.” Those words are very like the words which could be pro- nounced about the present case. No case of cruelty is authority for another case of cruelty, because the circumstances always differ, but that does bear a family resemblance to the present case. In the instant ease the commissioner has found, on what I think is no evidence of cruel conduct, that there was cruelty. This court is in position to reverse that finding, and I would therefore allow this appeal. Pearson L.J. agree. First and foremost, I would agree that the word ‘cruel’ means “cruel” and that there is no esoteric meaning to the word in cases which arise in the Probate, Divorce and Admiralty Division. In Gollins v. Gollins * Lord Hvershed said*: ‘The question in all such cases is, to my mind, whether the acts or conduct “of the party charged were ‘cruel’ according to the ‘ordinary “sense of that word: . . .”” I venture to say, with respect, that I entirely agree and that I take that as stating what is still the Jaw. married life.” + Ho said earlier in bis judgment: "The question in this case is simply whether the conduct of the husband his’ silenee—does come up to the standard which the law requires to “be regarded as cruelty. Tt is “ established by the House of Lords in Golline v. Gollins that the tention of the spouse is no longer decisive, His conduct need not be directed or aimed at the other party, But nevertheless it still remains the law, as I under ind it, that to constitute cruelty, the conduet must be grave and “weighty, Te must be more thant “the ‘ordinary. wear and tear of Married couples till have to put up with all the jexetions, the quarrels, and the oubles which are ordinary inci- “dents of married life, ‘They have “taken each other for better and for worse, ‘They must put up with tbe “temperament and: defects of charac: “ter of exch other. ‘There may come fa time when defects of character nr temperament may be such as to * amount to eruelty, but it all depends fon the facts of the case. Tt must be grave end weighty to amount to cruelty." * [1964] A.0. 644 ° Thid. 670. 1093 OA. 1964 Le Brooa Le Bnoca. aa an LJ.1094 cA. 1964 Le Baocg Le Brocg. a Ld. [1964] 1W.LR. THE WEEKLY LAW REPORTS Avs. 7, 1964 Now one of the great difficulties in this ease (for reasons which my Lord has stated) has ‘been to ascertain what is the real issue and to disentangle the evidence which bears directly on that issue from the other evidence which has a merely indirect bearing. In about February, 1956, the wife brought about by her own acts partial separation from -the husband: that is to say, she ceased to share the bedroom with him and, having gone into another bedroom, she put a small bolt on the door so that she could make sure of keeping him out. At any rate she put that bolt on the door and he took it as a strong indication that she was not interested in him and that she did not want to have much to do with him afterwards. It is quite true that she continued to cook his meals, but there was no further communica- tion, or no further avoidable communication, between the parties after that. Tt is a very long time which has elapsed since. The evidence becomes confusing because a lot of the evidence is directed to what the present state of affairs is and what has been happening since 1956: in particular as to the state of the house. Both parties appoar to have lost interest to a large extent, ‘The husband certainly became discouraged and did not look after the house or the garden to any great extent; indeed he seems to have ceased altogether. It follows that the present state of the house and garden is very bad indeed; and there was considerable evidence directed to that. But that is not the real issue, and it only tends to cause confusion if one pays too much attention to what the present state of the house and garden is or what the state of the relationship between the two parties is at the present time. ‘The commissioner in my view ditected his mind entirely to the right question, namely, what was it that led up to that separation, or partial breakdown of the marriage, in 1956? He also said that some light upon what happened:before the 1956 break is thrown by evidence of what happened after that. But although it is quite true that some light is thrown, it is import ant and necessary to disentangle the evidence relating to the two periods. ‘There is not much evidence about what happened before the 1956 break. It has been very difficult to find out what the wite’s teal complaints are with tegard to the husband’s behaviour before that time. It seemed to'me at one time from the evidence that she was attaching considerable weight to hor efforts to persuade him to produce more money for various proper fomily purposes—providing special clothes and so on for the two daughters in connection with their schooling. But she failed entirely to prove that there wos any-fault in the husband in that respect, becuse the mere fact that he did not provide certain special sums of money does not show fault on his part unless it is also shown that he had the money with which to do it; and there is a conspicuous absence of evidence as to what his income‘Avo. 7, 1964 THE WEEKLY LAW REPORTS [194] 1 W.LR. and resources were at any time in the period before that unfor- tumate break occurred. There is simply no evidenco as to what his income and his means were in the most crucial period, 1954 and 1955. So it cannot be assumed that he was wilfully or unreasonably failing to provide money, for it is not shown: that he had the money for the purpose. All that part of the evidence, in my view, ceases to help. Then, as has been said, the allegations of physical cruelty very soon passed out of the ease. There were only two rather minor allegations and it was found that there was no real sub- stance in either of them. Therefore we are left with the third complaint of the wife’s, which is not very easy to state accurately but it comes, I think, to this: that the husband persistently neglected the wife and ignored her and failed to take sufficient interest in the family or in her and the two daughters of the marriage. ‘We are not deciding in this ease that conduct of that kind, if carried far enough and if persistent enough and serious ‘enough, could not ever constitute '* cruelty "” in the proper sense of the word. I am inolined to think that if a bad enough case could be established there might be a case of legal cruelty based ‘on those matters of neglect, ignoring the wife, failing to take any interest, failing to participate in the general family life, and so on. But the question, to my mind, is whether there is any evidence of conduct of that kind in the years 1954 and 1955 of sufficient seriousness to constitute cruelty. I have studied the evidence with care and I cannot find anything which shows a sufficient degree of neglect to have that effect. ‘There are two main passages, I thitik, in the evidence on that point. ‘There is the passage in which she said she thought he was, suffering from some kind of mental illness. [His Lordship referred to the evidence of the wife as set out above and con- tinued: ] That seems to me to be as far as it goes. I cannot find any evidence to show there was any high degree of with- drawal or lack of commutication between the parties. He was @ man who did not speak very much. He said in his evidence that he did not like arguments actually—those were his words —and he was plainly not willing to engage in acrimonious dis- cussion with his wife; and she found it exasperating that she was unable to discuss things with him. But there is no evidence that he would not speak to her at all ever. There is no evidence that ho was unkind to the daughters, It is true that the wife said he did not take much interest; but he gave the younger daughter her pocket-money regularly every week and at times he was able to provide some money for special needs. At other times the wife was able to go out and do some part-time work and raise the money that way; and the two daughters were well educated. He was in general a reasonably good husband, accord- ing to the evidence, ‘and the only complaint is of his degree of unsocisbility and his degree of taciturnity. But to my mind the 1095 OA. 1964 Le Buooa Le Baoca.1096 (1904) 1 W.L.R. THE WEEKLY LAW REPORTS Ave. 7, 1964 ©.A. evidence falls far short of showing anything which could constitute igs legal cruelty, and when I say ‘legal cruelty "’ I mean cruelty in the ordinary sense of the word, that is to say according to its 7°? natural and ordinary meaning. I agree that there is no evidence Ls Broce. of it, and for that reason I would allow the appeal. ‘Le Broca Satuon L.J. I agree. It is important to emphasise that “cruelty” means cruelty in the ordinary and natural meaning of that word. “Cruelty” has no esoterie and certainly no artificial meaning in the law of divorce. In this case the real question is: was there any evidence to justify the finding of cruelty against this husband prior to the partial separation to which my Lords have referred and which took place in or about February, 1956? The Commissioner rightly appreciated that that was the erux of the case. After that time the parties were not on speaking terms, although they went on living in the same house and do so to this day. Neither has made any effort at a reconciliation. Considerable difficulty arises from the fact that the parties were not called upon to give evidence about what happened before 1956 until some eight years or so later. After the wife left the matrimonial bed in February, 1956, and went to sleep in another room, to which she had a bolt affixed, the relationship between her and her husband rapidly deteriorated; feelings became embittered; and the whole of the evidence which she has given as to what happened before 1956 (as the Commissioner evidently appreciated) was very much coloured by what had happened after 1956. ‘My Lords have pointed out that there was very little evidence indeed as to what occurred before 1956, and such evidence as there was seems to me to be very nebulous. One thing is plain—that these two people have highly incompatible temperaments, ‘The wife, as the Commissioner found, had a domineering tempera- ment, The husband, on the other hand, suffers from an inferiority complex and a submissiveness which made him unable to stand any criticism by his wife: when he was criticised he simply “folded up” and retired into his shell (as the Commissioner found). Rather than face a dispute, if his wife made some demand on him, financially, for example, which he felt unable to meet, he would just shrug his shoulders and walk out of the room, saying * Money does not grow on trees’: that is all he would say about it. The wife naturally found this extremely exasperating. Tt must always be exasperating to live with a person who has a temperament entirely incompatible with one's own. Wo have not yet reached the position, however, where a person is entitled to come to these courts and ask for a divorce merely on the ground that he or she finds the mariage extremely invitating and exasperating. In any. unhappy marriage where the parties are temperamentally unsuited, I have no doubt that itAus. 7, 1964 THE WEEKLY LAW REPORTS [1964] 1 W.LR. would be possible for either party to give evidence of acts or omissions on the part of the other which did have some deleter- ious effect upon the health of the party complaining. But in order that a charge of cruelty may be made out, the matters complained of must be grave and weighty, constituting “cruel conduct” in the ordinary and natural meaning of those words. Now what is the evidence here of any such conduct against this man? In spite of the disparity in temperaments, the marriage, as the Commissioner has found, was reasonably happy until 1954 or 1955, when the trouble, as he has stated, really started. It appears that certainly from the date of her mother’s death in 1955, which greatly upset her, this wife found herself in a position in which she felt she could no longer bear to go on living with this man in the ordinary way. Many women may feel this about living with their husbands. Many husbands may feel this about living with their wives. But no one is entitled to a decree on the ground of cruelty unless what they complain of are grave and weighty matters causing injury to health and of which it can truly be said ‘This conduct is really cruel.” All that is proved against this husband is that he was unduly submissive and “crept about the place” and seemed ‘* vague “and far away.’” Tt is nob suggested that he had no conversa- tions with his wife and family, but only that whenever any controversial topic was raised he refused to discuss it and walked out of the room. That may have been disappointing and was no doubt exasperating; but to my mind it is quite impossible to regard it as supporting a charge of eruelty. I do not consider Gollins v. Gollins° as having altered the law, save that it gave the quietus to the doctrine that conduct in order to be cruel must be “aimed at’ the party complaining. It still remains the law that “cruelty” means “cruelty '" in the real sense of that word. I entirely agree with my Lords that in this case there is no evidence of cruelty, and I would allow the appeal. Hanwaw LJ. The husband’s cross-appeal, asking for a decree nisi on the ground of desertion, has not occupied very much of the time of the court. That cross-petition was rejected by the Commissioner, though of course he did not have to decide the matter finally because he made a decree on the wife’s petition. But, this court being asked to deal with the cross-appeal, I would for one without any hesitation dismiss it. I do not think that there was desertion here. ‘There was no separation of households. ‘There was separation of bedrooms, separation of hearts, separation of speaking: but one household was carried on, one kithen where the cooking was'done, and they had their meals irom the same supply, the husband providing the money and the wife buying the food. 40 (1964) A.C. 644 1097 Ga. 1064 ‘Le Broog °. ‘Le Broce.1098 OA. 1964 ‘Le Broca ‘Le Broca. [19s] 1 W.L.R. THE WEEKLY LAW REPORTS Ave. 7, 1964 I think that it would be carrying the doctrine of desertion, or constructive desertion, beyond anything within my knowledge of this kind of matter-if I were to say that there was desertion here. I would therefore dismiss the cross-petition as well as the petition. Pearson L.J. I agree. Satmon L.J. I agree. Appeal allowed. Petition diemiseed. Cross-petition diemissed. Decree nisi and order for costs below rescinded. No order with regard to costs of appeal. Solicitors: Hepburns; W. V. Hill, Croydon. [pronare, Er0., Division. ] *RATOLIFF ». RATCLIFF. Husband and Wife—Justices—Trial—Duty of cowrt—Questions to wit- nesses—Whether any duty towards party legally represented Whether failure of justices to question witness renders proceedings void—Magistrates’ Courts Act, 1952 (15 & 16 Geo, 6 & 1 Eliz. 2, «, 55), 5. 61. At the hearing by justices of a wife's complaints that the husband had deserted her and had wilfully neglected to provide reasonable maintenance for her, at which the wife was represented by a solicitor and the husband appeared in person, tho husband stated. in ovidence that the wife had unjustifiably refused him sexual intercourse, That stetement, which was not challenged in cross-examination, was accepted by the justices who accordingly dismissed the wife’s complaint. On appeal, tho wife contended that the magistrates’ court had a uty under section 61 of the Magistrates’ Courts Act, 1952," to ensure that she was given an opportunity of dealing with the sntials of the husband’s case and that its failure in that regard vitiated its order:— “which the witness may be able to “ depose or on which the witn + it appears to a. “ought to be cross-examined, wrt thot any party to‘ cise may be, and shell the proceedings who is not legally ‘* cause to be put, to the represented is unable effectively to ‘* questions in the interes examine or cross-examine a witness, ““ party es may appear to the court ‘tho court sball ascertain from thet ‘to be proper. ‘party what are the mattere about } Magistrates’ Courts Act, 1062, ‘Where in any domestic pro-