Hardin v. Hardin , 17 Ala. 250 ( 1850 )

PARSONS, J.

It is settled in England that malicious clesertion is no cause for a divorce. For this there is a remedy there in the Ecclesiastical Courts, by a suit for a restitution of conjugal rights. This remedy does not exist here, but it is enacted that if a wife vohmtarily leave her husband’s bed and board for the space of three years with intention of abandonment, this is sufficient cause for a divorce in his favor. — Clay’s Dig. 170, § 3. The defendant in the present case certainly left her husband and remained away for three years and more before this suit was brought; but the question is whether she did so voluntarily, within the meaning of the statute? 'This must be determined by the evidence. It clearly appears by the depositions that she left and remained from him as already mentioned : that she knowingly left and remained awa3r against his wish, and that she refused to return, though requested by him to do so. But it also appears that she left him because he accused her of criminal intercourse with other men, and it does not appear that there was any cause for the charge, or that he ever retracted it: On the contraiy, it appears that at the very timo he was desirous of her return, he in effect repeated his suspicion of her guilt in the neighborhood ; in such a way, however, as to show that there had never been conclusive evidence of it even in his own mind. It is therefore clear that so far as she had cause to leave him, she had cause to remain away from him. Did she leave and remain away voluntarily? If the husband look to England, whence almost all our laws come, for authority to sustain his application for a divorce, he fails; and coming to our statute he finds that he is not sustained, unless she left him voluntarily, or of her free choice. Can he be heard to say that she left and remained from him voluntarily, when lie had made it necessary for her to choose between the abandonment and the most wretched state of human existence —that of living with a husband who had accused her of unchaste conduct, and this, so far as there is any evidence, without the smallest cause. We feel that we can acquit our legislature of the error of using the word “voluntary” in such a sense. The case then is, that she left him for his groundless charge; that he never retracted but repeated it, and that for this cause she refused to return. She would neither,degrade herself nor him by living with him under such circumstances, although as the proof shows she declared her attachment for him at the very time of the separation.,

We are far from saying that this accusation is a ground upon which the defendant could have obtained a divorce from her husband. However groundless and cruel, it was not sufficient for that purpose. But our opinion, from the evidence, is that it was the cause of her leaving and remaining from him unwillingly — hence, that she did not leave or remain away voluntatarily, but under an unhappy necessity which he created and continued; and for this reason his cause of divorce fails. She does not set up a distinct matter in bar of his claim to a divorce, but she makes her excuse for leaving him a part of the ground which he relies on for a divorce, and taking the fact of the ground and of the excuse together, there is, we think, no cause for a divorce. This view distinguishes this case from some of the cases relied on by the plaintiff’s counsel, in which distinct matters were set up, and in which it was held that they must be sufficient causes of divorce of themselves. We do not say but that if he had proved a ground for his suspicions, or retracted them and assured her of his confidence, he would have been entitled to a divorce. From the evidence, it is more than probable that if he will yet retract his charge and assure her of his confidence she will live with him. She has proved that she has a deep sense of her injury, by refusing for so long a time to live with him, although she acknowledged her attachment for him at the time of the separation. This ought to make him doubt the cause of his jealousy, and if this suggestion should lead to a reconciliation, it is far better than a divorce.

It is true, as contended by the plaintiff’s counsel, that a man under the circumstances of this case may in the Ecclesiastical Courts have a suit for the restitution of his conjugal lights, in which the wife will be compelled to return to cohabitation unless she can plead a fact in bar which will entitle her to a sentence of separation, and that no facts are sufficient to bar the proceeding except such as are sufficient as a ground for a divorce in an original suit. But in such cases the sentence of the court usually enjoins the husband to recieve his wife home in that character, and to treat her with conjugal affection and to testify the same to the court; and the consequence of non-compliance with the decree of the court is excommunication and imprisonment; and the monition is that the husband shall not only take her back, but that he shall treat her'with conjugal kindness. — Shelford on Marriage and Divorce, 574 to 582, and authorities cited. According to the ecclesiastical law, the defendant in this case could not plead her husband’s charge of infidelity against her, in bar of a suit for restitution of his conjugal rights, inasmuch as she couldmot for that charge alone have obtained a divorce; nothing short of that being a good plea in bar to a suit for restitution of conjugal rights. Why was that? It was because the contract of marriage was of the highest degree of solemnity, of the greatest obligation. But if in this case it is to be dissolved because she left and remained from him for the most grave and groundless provocation on his part, then the marriage contract is of the least degree of obligation. The plaintiff’s counsel will perceive that their argument puts it in the power of every husband to drive his wife from home by groundless accusations of the kind, and then to claim a divorce for the abandonment. This would bring the marriage contract to a very low degree of obligation and completely subvert the principle upon which the Ecclesiastical Courts have proceeded. — See Gray v. Gray, 15 Ala. 779.

Let the decree be affirmed.