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injured husband is “the most painful and incurable that human nature knows."
5. The act of adultery, on the part of the wife, without more, therefore entitles the husband to a decree dissolving the marriage, unless his right is or may be barred in or by one or more of the ways referred to in the section of the statute last quoted.
6. These bars are eleven in number, viz: 1, Having been accessory to the adultery ; 2, Connivance; 3, Collusion; 4, Condonation ; 5, Recrimination; 6, Cruelty ; 7, Desertion; 8, Wilful separation ; 9, Wilful neglect; 10, Misconduct; and 11, Unreasonable delay. Upon each we shall make a few explanatory observations.
7. First, being accessory to the adultery of the other party, this may be taken to comprehend all that mis conduct by which the husband becomes the pander to his wife's guilt, exposes her to pollution, or encourages or promotes licentious conduct. The too common case in the Police-office reports of wretched men sending their wives upon the streets to get money by prosti. tution, comes of course under this head. In such cases the Court shall “ dismiss" the petition.
8. Second, “ connivance": to connive (from connivo) is to wink at a thing, which a husband certainly does who takes no notice of his wife's irregularities, but gives them full scope.2 Active corruption is not necessary to constitute connivance. Passive acquiescence with the intention, and in the expectation that guilt will follow, is sufficient. There must be consent;3 mere negligence, dulness of apprehension, or indifference on the part of the person accused of connivance, will not be sufficient.4 It must be proved that the husband saw the train laid for the corruption of his wife, and saw it with pleasure, and gave a kind of passive acquiescence to it. In this, as in every other case, the presumption of the law is on the side of the accused; and, therefore, if the acts are equivocal, the presumption will be in,
favour of the party accused of connivance. But it is not necessary to prove connivance with respect to the actual adultery. If a system of improper familiarities be established, the Court will infer a corrupt intention as to the result, and will not call for more direct proof. But neither coarse nor brutal behaviour, obscene and disgusting language, and entire disregard of decorum on the part of a husband, either to or in the presence of his wife, will alone constitute connivance. Such conduct is indeed most degrading to a gentleman, and offensive to all good feeling, but it does not necessarily prove the husband acquiesced in the wife's adultery. Even cruelty and desertion, although tending to induce the wife to disregard her own duties, are not connivance. Facts to constitute connivance must have a direct and necessary tendency to cause adultery to be committed or continued. The law imposes upon the husband the obligation of cautiously protecting his wife from all associations that might expose her purity to hazard, or, by lowering her standard of female virtue, prepare the way for the inroads of the seducer. If, indeed, courts were not sufficiently alert in maintaining the necessity on the part of the husband, jealously to watch over the society, conduct and habits of his wife, it might occasion an irreparable injury to the great bonds of human hap. piness and peace. Connivance and collusion have hitherto destroyed, and hereafter will continue to destroy, all claim to a remedy by way of divorce. What degree of neglect, however culpable, short of an actual exposure of the wife to the seduction of an adulterer, is no where laid down, at least, with that distinctness and precision which would furnish a safe guide for the Court to act upon. Although no case has occurred, it may be conceived that a case might arise of such wilful neglect, or rather exposure, as might, without proving actual connivance, possibly bar the husband of all remedy of divorce. A husband might introduce his wife into society so abandoned, and expose her to risks so great, as to render a deviation from
i Thompson v. Thompson, 3 Hagg.
the paths of chastity the most probable, if not the necessary consequence. Under such circumstances, the Court, perhaps, would not wait for proof of actual connivance on the part of the husband, but would hold him to the consequences of his own conduct, when the adulterous connexion arose from the society and temptations to which he had introduced his wife.”
When connivance appears, the Court shall “ dismiss the petition for divorce.
9. Third, Collusion; which is the next ground upon which the petition should be dismissed. Collusion may be described as a conspiracy or fraudulent concert to impose upon the Court and obtain a decree by putting forward a false case and keeping back or masking the true one; and not unlikely to occur where married persons, regardless of morals and tired of each other, are sighing for liberty.2 An agreement between the parties for one to commit adultery, so that the other may obtain a remedy as for a real injury, is collusion.3 The Court will watch that it shall not be made “a party to a juggle for getting a divorce,4 and will look with a jealous eye upon undefended cases."5
It may be observed here, that the act requires that with the petition, the petitioner shall file an affidavit denying the existence of “any collusion or connivance."
10. Fourth, Condonation: This means forgiveness, followed by a blotting out of the offence. Where the injury is deliberately and knowingly condoned by the injured party, there is an end to all claim to redress, unless there be a new injury done, which will have the effect of reviving the original offence. There is an implied condition annexed to the forgiveness, that the injury shall not be repeated. If this is broken, the right to proceed for the former offence returns.?
Harris v. Harris, 2 Hagg. R. 45, and see Philips v. Philips, 1 Robertson.
2 Per Lord Chancellor Cranworth., 3 Crew v. Crew, 2 Hagg. Ecc. 130. 4 Dunn v. Dunn, 2 Phill. 403. 5 Orde v. Orde, 8 Shaw's Scotch Rep. 150. 6 Sec. 41.. 7 See Durant v. Durant, 1 Hagg. Ecc. 745.
In order to found a good defence of condonation, it must be proved that the injured party was in the certain knowledge of particular acts of adultery, such as would entitle him to proceed for a divorce. A husband may have suspicions of his wife's infidelity, he may have enough to satisfy his own mind, but not to construct a legal case. Under such circumstances, it is difficult to refrain from cohabitation, as the means of discovery would be thereby frustrated. Knowledge of what is condoned must be distinctly proved. Much controversy usually takes place in cases where the defence of condonation is set up, as to the time the husband or wife obtained complete knowledge of the adulterous intercourse, and when it became their duty, if they were inclined to take legalsteps, to refrain from cohabitation. Mere residence in the same house will not amount to condonation. When a husband has received reliable information as to his wife's guilt, although he is not bound to remove her out of his house, he ought to cease martial cohabitation with her. If he acts as if he accredited the information, and yet continues to cohabit, he prevents his right to reparation. Lord Stowell held it necessary for a husband to prove that he had not slept with his wife after his knowledge of her adultery. 6 “ The husband's facility to condone,” says Sir W. Scott, "shows that he does not duly estimate the injury, and will make the Court watch jealously his subsequent conduct.7
In a recent very important case, of Keats v. Keats and Montezuma, which is yet unreported,an explanation of the term condonation has, for the first time, been given. The question came before the Court upon appeal from the decision of the learned Judge. Ordi
Legrand y. Legrand, 2 Craigie and St., Scotch Rep. 596. ? Timmings v. Timmings, 3 Hagg. 86. 3 Durant v. Durant, Hagg. Ecc. 733. 4 Per Sir W. Scott, 736. 5 1 Dillon v. Dillon, 3 Curt. 91. 6 Timmings v. Timmings, 3 Hagg. Ecc. 84. 7 Ibid. p. 78.
8 Feb. 1859. Before the Lord C., Mr. Justice Wightman, and the Judge-Ordinary.
nary. The facts appeared to be these: The petitioner, a gentleman of considerable property, prayed for a dissolution of marriage, on the ground that his wife had been guilty of adultery with the co-respondent, a Spaniard, named Pedro de Montezuma. Mrs. Keats pleaded a denial of the adultery and condonation. On the trial of these issues before the Judge-Ordinary and a special jury, the fact of the adultery was not disputed, but a great deal of evidence was given in support of the plea of condonation. It appeared that Mrs. Keats, after leaving her husband, had lived in Dublin with Don Pedro for several weeks in the early part of last year. When Mr. Keats discovered her he presented the present petition. A correspondence was subsequently entered into between Mr. Keats and his wife's mother and other members of her family, in the course of which he expressed his desire to have the matter amicably arranged, and his regret that proceedings had been instituted in this Court. An aunt of Mr. Keats came over to England from Jersey, and had some interviews with Mr. Keats, with the object of bringing about a reconciliation. Mr. Keats on one occasion set out with her in his carriage with the intention of paying a visit to his wife, but he called on his way to the railway station at the office of his attorney, and after an interview with that gentleman changed his mind. On the 27th of November, 1858, when the petition was ready for hearing, Mrs. Keats, her sister, and her sister's, husband, called unexpectedly at Mr. Keats's house. The sister's husband first went in, and after a short conversation with Mr. Keats they both went out to the carriage, and Mr. Keats then saw his wife. He returned to the house with the sister, and was followed by her husband, and Mrs. Keats. They all entered into conversation. Mr. Keats asked his wife for explanations of her conduct, and she replied to some of his questions. He again expressed his wish to have the matter quietly settled, and not to proceed with this suit.
They stayed about three hours, had lunch, and were shown over the house, and Mr. Keats made an appointment with the sister's husband at the office of his at