England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/1955/2.html
Cite as: [1955] 2 All ER 51, [1955] EWCA Civ 2, [1955] P 153, [1955] 2 WLR 817

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JISCBAILII_CASE_FAMILY

		BAILII Citation Number: [1955] EWCA Civ 2
		Case No.:

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.

Royal Courts of Justice.

March 17 1955

B e f o r e :

LORD JUSTICE SINGLETON
LORD JUSTICE HODSON
and

LORD JUSTICE MORRIS
____________________

Between:

	Dennis, E.B.
	-v-
	Dennis, S

____________________

(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392 Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London W.C.2).

____________________

Counsel for the Appellant: MR JOHN LLOYD ELEY, instructed by Messrs H.S.L. Polak & Co Counsel for the Respondent:
MR S. SEUFFERT,
instructed by Messrs Walmsley & Stansbury.
____________________

HTML VERSION OF JUDGMENT
____________________

JUDGMENT ON THE ISSUES OF CRUELTY.

LORD JUSTICE SINGLETON: The Petitioner, Mrs Edith Betty Dennis, was married to the Respondent on the 19th February, 1938. They lived together until early in the year 1953, when she left him for reasons which she gave in the witness-box, and which are referred to in Paragraph 18 of her Petition. On the 26th May, 1953, a petition was presented by which she claimed a Decree of dissolution of marriage on the ground that her husband had treated her with cruelty. In Paragraphs 8 to 11 of the Petition she gave particulars of the cruelty which she alleged, which were acts which tended to humiliate her and distress her, and which in fact did so. Some of the accusations were accusations that she played about with male employees of the staff at the place at which she was employed, and the Petitioner said, too, that her husband made accusations against her in the presence of her children and of other people. In respect of those allegations it was not said or suggested that there was any injury to the health of the Petitioner. Mr Commissioner Edgedale said that though there had been something said about nagging, he mast be bound by the Pleadings, bat though those matters referred to in Paragraphs 8 to 11, inclusive, of the Petition were unpleasant matters, he could not regard them as giving ground for the granting of a Decree. On the other hand, he said he was entitled to have regard to them when he was considering the question of violence. There were allegations of violence in the later paragraphs of the Petition, four in particular, and they are set out not only in the Petition, but in the findings of the Commissioner in the early part of his judgment from page 7 onwards. The first was said to have occurred on the 4th April, 1952.

The Commissioner went to great trouble in this case, and came to the conclusion with regard to those incidents that the evidence of the wife, the Petitioner, was right, and the evidence of the husband was wrong, and was not to be accepted by him. If I take the first of those incidents, it was an allegation that a quarrel broke out because she had been to see her parents, and when she went home her husband picked up the poker and shook it and said, "I will murder you." There were other later incidents occurring in the year 1952 which were allegations of violence, violent conduct committed by the husband towards the wife. They were found to be true, and upon them the Commissioner granted a Decree of dissolution of marriage to the wife.

Earlier this morning we had to deal with another part of the case, and at this moment I am only dealing with the issues upon cruelty which were found to have taken place, and upon which, if they were proved, there was ground for the granting of a Decree.

The Commissioner granted a Decree to the wife, and the Respondent husband appeals to this Court.

There is only one criticism that I would make of the judgment of the Commissioner. After referring to the evidence, at the bottom of page 20 of the transcript of the judgment he said:

"So much, therefore, for the evidence. Although I do not say I have covered every word of it, I have done my best to give the gist of most of what was said and I hope I have said enough so that if there is an appeal in this case it will be possible to get the evidence from my judgment without going to the extant of having the Shorthand note of all the evidence."

No doubt that is a very worthy object. If a Judge or Commissioner hints at, or suggests, an appeal in a case of this nature, it is very likely that there will be an appeal, and it is difficult for those who are charged with the duty of considering whether legal aid should be granted or not to refuse to grant it when a remark of that kind has been made. That is the only criticism I venture to make of this most careful judgment. The judgment is a long one; it sets out the allegations on the two sides, and sufficiently for this purpose it sets out the findings of the Commissioner on the facts. The finding that the husband had been guilty of acts of violence towards his wife on four occasions in the year 1952 is ample to warrant the granting of a Decree on the ground of cruelty unless there be something to show that, in all the circumstances, a Decree ought not to have been granted either because the acts were not serious acts, or for some other reason. Acts of violence by a husband towards his wife such as were found in this case must be regarded seriously. There may be some excuse in some cases of tempers up when the man loses control of himself, but it in difficult to see that there can be any excuse for the acts which, on the Commissioner's finding, were committed by the husband against the wife in this case, and those acts of violence followed a course of conduct which showed an unpleasant steak somewhere if, an I think it was, the evidence of the wife was believed. Still, it in unnecessary to go farther into that question.

Mr Eley, who has argued the case on behalf of the husband, has submitted that in law there ought not to have been a Decree, even if the acts of violence were committed, an there was no injury to health, and he said that one of the acts at least arose because the husband was annoyed that his wife would not sleep with him any longer. When you have acts of violence it in not necessary to call a doctor to any there was injury to health. The threat of a poker and blows were acts of violence. The blows themselves, and the gripping of the wrists on another occasion, were sufficient to cause marks, as they normally are. One would anticipate that danger of injury to health would be caused by conduct of that kind, and those acts being proved to the satisfaction of the Commissioner, he was justified in granting a Decree for dissolution of marriage, and he did so.

I do not see any ground for this appeal, and it must be dismissed.

LORD JUSTICE HODSON: I agree, and have nothing to add.

LORD JUSTICE MORRIS: I agree.

Order: Appeal dismissed. Order for the taxation of the Appellant's and Respondent's costs under the Third schedule to the Legal Aid Act.