Peabody v. Peabody , 104 Mass. 195 ( 1870 )

Colt, J.

The report in this case discloses mere neglect on the part of the husband to provide for the maintenance of his wife. This is not enough under our statute. The neglect must be “ gross or wanton and cruel ” on his part, he being of sufficient ability to provide. These words were used for the purpose of giving to the conduct of the husband, in this respect, the character which they imply, and are not to be disregarded.

The case finds, that, although the neglect of the husband commenced many years before the final separation, and continued down to the time of filing the libel, yet neither the wife nor her children had in fact suffered, or been in danger of suffering, from want of support. But, without asking support of him, since he left her, she had relied on her own earnings, which were in no way interfered with by him. This is not the neglect contemplated by the statute as a ground of divorce from bed and board. In Bailey v. Bailey, 97 Mass. 373, upon a full consideration of the whole subject, it was said, that, “when a divorce is sought on the ground of cruelty, whether it be cruel and abusive treatment, or cruelty in neglecting or refusing to provide suitable maintenance for the wife, a reasonable construction of the statute requires that it shall appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create danger of such injury, or a reasonable apprehension of such danger.”

It may be, that, under some circumstances, a sudden and continued refusal to provide the necessaries of life to a wife, who is left thereby, with her children, to her own earnings, would be regarded, within the meaning of the statute, as “ gross or wanton and cruel; ” as where, from the previous habits, or mode of life, or state of health, or incapacity to labor from any cause such conduct would cause injury to health, or danger of such injury, or reasonable apprehension thereof. In the case at bar it was simple neglect, with no circumstances of aggravation.

Libel dismissed.