Scottish Court of Session Decisions

An action of divorce for desertion was brought by a husband against his wife. A second action was brought by the wife against her husband for separation and aliment on the ground of her husband's cruelty. The averment of the defender in the first action was that she left the pursuer “upon the ground of his continued cruelty and maltreatment, which were endangering her health and life.”

In the action of separation the pursuer enumerated various specific acts of cruelty which she alleged to have been committed by her husband in the course of their married life, and averred generally that “the cruel, harsh, and violent conduct of the defender caused the pursuer to suffer in health, and made it impossible for her to live with him and dangerous to do so.” After the record in both actions had been closed, the wife presented a minute of amendment applying mutatis mutandis to both records, containing averments of facts which she alleged had only come to her knowledge subsequently to the date of closing the records. The minute stated that in the month of April 1890, M, a niece of the pursuer (the wife), was living with herself and the defender. It proceeded—… “The pursuer had occasion to go out early that morning, but before going she came and wakened M, telling her to get up in a quarter of an hour to make the defender's breakfast. M fell asleep, but was shortly afterwards awakened by someone catching hold of her, and discovered that the defender was in her bed. He was dressed only in his sleeping garments, and attempted to have connection with her. She resisted him violently, and succeeded in getting out of bed into the middle of the room, and upraising a chair ordered him out. At first he would not go, and offered her money or anything else if she would say nothing about it, but upon her threatening to open the window and call for help, he left the room. As this occurred so soon after the marriage of the spouses, and she was not afraid of any repetition of the occurrence, M abstained from communicating it to the pursuer.”

The Lord Ordinary ( Low) on 22nd February 1896 issued an interlocutor allowing the proposed amendment.

The husband reclaimed, and argued—The amendment was irrelevant. (1) The averments did not relevantly support an action of separation, inasmuch as the act averred did not amount to legal cruelty— Beauclerk v. Beauclerk, L.R., 1891, Prob. 189. It was admittedly unknown to the respondent, and could not therefore constitute an act of “cruel maltreatment.” (2) Nor, for the same reason, could it form a valid cause for the desertion, and as such constitute a defence in an action of divorce.

Argued for respondent—The averments made by the respondent in both actions put the character of the reclaimer at issue, and the proposed amendment contained an attack upon that, and was accordingly relevant in both actions. Postnuptial incontinence was a good answer to a demand for adherence, and any answer relevant to that was relevant in an action of divorce—Fraser's Husband and Wife, p. 1211. The

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rights of the parties were to be fixed as at the date when the action for divorce was raised— Auld v. Auld, October 31, 1884, 12 R. 36.