Sharah v Sharah [1953] HCA 91

High Court of Australia Webb, Kitto and Taylor JJ. Sharah v Sharah [1953] HCA 91

ORDER Order that the decree in the consolidated suits in so far as it pronounced that the petitioner had sufficiently proved the contents of her petition No. 525 of 1952 and in so far as upon that petition it ordered and decreed that the marriage celebrated on 8th December 1945, at Elizabeth Bay, Sydney, in the State of New South Wales, between the said petitioner and the respondent, the appellant in this appeal, be dissolved by reason that since the celebration thereof the said respondent had without just cause or excuse wilfully deserted the petitioner and without any such cause or excuse left her continuously so deserted during three years and upwards, be set aside and order a new trial of the suit instituted by the said petitioner. Otherwise appeal dismissed.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 12 Webb, Kitto and Taylor JJ.

This is an appeal from a decree for the dissolution of the marriage between the appellant and the respondent. The decree was made in consolidated suits in the Supreme Court of New South Wales in its matrimonial causes jurisdiction and was made upon the respondent wife's petition. The appellant husband's petition was dismissed.

Upon the hearing of the appeal we were informed by counsel for the appellant that it was not desired to pursue the appeal against the dismissal of the latter's petition and the argument was, therefore, confined to an attack on the decree for dissolution made on the respondent's petition. This petition was based upon an allegation of constructive desertion.

Upon the hearing of the suits, which we were informed lasted some nine days, a considerable body of evidence was adduced. That adduced on behalf of the respondent wife, who was the petitioner in the suits as consolidated, testified to a course of conduct on the part of the appellant which was, at the very least, calculated seriously to endanger the marriage tie. The appellant, it was said, regularly drank to excess and was given to assaulting his wife whilst under the influence of drink. To this were added allegations that no adequate financial provision was made by the appellant for the maintenance of the household and that the appellant's general conduct towards his wife was of such a character as to lead to the ultimate destruction of the marriage. In particular, the effect of the evidence of the respondent and her sister is that the occurrence of any difference between the appellant and the respondent became the occasion on the part of the former for violent conduct and language of the most obscene kind. The evidence called on behalf of the appellant is a complete denial of these allegations. Not only does the appellant deny them but his denial is supported by what is claimed to be a substantial body of independent evidence. The appellant himself claims, indeed, that his conduct has been more or less exemplary and that, though there have been differences between him and his wife, they have proceeded in the main from his wife's dissatisfaction with the mode of life dictated by their financial circumstances and from her extravagant gambling habits. That she was so dissatisfied or that she indulged extravagantly in gambling is denied by the respondent. The extent of the conflict between the parties is apparent from this brief reference to the nature of the evidence before the Supreme Court and it is clear that the case of one party, at least, was founded not only upon exaggeration, but also upon testimony which was deliberately false. But it by no means necessarily follows from the rejection of the evidence of one party that the evidence of the other was or is worthy of full acceptance. At the conclusion of counsel's address the learned trial judge came to the conclusion that "the wife's continuance in the matrimonial home was rendered absolutely impossible by the husband's weakness for liquor and that, when under the influence, his behaviour to her was so intolerable as to render it impossible for her as a self-respecting woman to remain with him". It was, his Honour says, "In relation to liquor that all the criticisms of the husband that have been urged are urged and I am driven to the conclusion that he was a solitary drinker, given to intermittent bouts of drunkenness under circumstances where his wife would not know when he was next likely to become intoxicated for a day or longer period, and that when affected he was liable to strike her, to use indecent language to her, and generally to render it impossible for her to continue to live with him as his wife". His Honour accepted specifically evidence that the appellant's use of foul language concerning his wife and her relatives was of frequent and regular occurrence. He also accepted the respondent's evidence generally concerning the course of the married life leading up to the events of 12th February 1949, when the respondent finally left the matrimonial home after her husband had on that day assaulted her. His Honour also accepted the evidence of two specified witnesses called on behalf of the respondent but it is proper to observe that the evidence of these witnesses was concerned with the appellant's conduct after 12th February 1949, and had no real relevance to the issues to be decided between the parties. Upon his view of the evidence his Honour further said: "The view I have formed on an investigation of the whole of the evidence, including the letters, is that the husband's conduct was such that any self-respecting spouse situate as the petitioner was situated, would have felt compelled, if she were to preserve her decency and safety, to determine the matrimonial relation. I believe that Mrs. Sharah when she withdrew from cohabitation had found the circumstances of the matrimonial life caused by her husband's drinking habits so intolerable that she felt herself as morally compelled to withdraw".