Locke v Locke [1956] HCA 18

High Court of Australia Dixon C.J. Williams and Fullagar JJ. Locke v Locke [1956] HCA 18

ORDER Appeal allowed. Discharge so much of the decree or order of the Supreme Court of New South Wales dated 29th December 1955 as relates to the petition of Thelma Phyllis Lorraine Locke, No. 2142 of 1953. In lieu thereof order and decree that the said petition be dismissed and that the costs of the petitioner of the suit be taxed and paid by the respondent in the suit Terry James Locke. Order that the costs of this appeal of the respondent to this appeal Thelma Phyllis Lorraine Locke be paid by the appellant Terry James Locke.

The Court delivered the following oral judgment:—

April 27 Dixon C.J., Williams and Fullagar JJ.

We have given anxious consideration to this case and we have arrived at the conclusion that the decree nisi for dissolution cannot be supported. The decree was obtained on the wife's petition on the ground of adultery. A single act of adultery by her husband with the intervener was charged. It was alleged to have taken place in a sedan car on the night of 22nd May 1953.

Evidence for the petitioner was given of facts from which, if they stood alone, an immediate inference of adultery would arise. The husband and the woman denied not only the commission of adultery but also the more important of the incriminating circumstances. But a fact of the greatest significance was proved by medical evidence which could not be questioned and that fact was that the intervener had twice submitted herself for medical examination and that the hymen was unruptured and that she presented all the indicia of a virgo intacta.

The law is that to constitute adultery as a ground of divorce, some penetration of the woman by the man, must be found to have taken place. It is not necessary that such penetration should constitute a complete act of intercourse. The act need not be complete but a mere attempt, without penetration, is insufficient.