Scottish Court of Session Decisions

This was an action of divorce for desertion. It was undefended. Personal service of the summons was made, and the diet of proof intimated to the defender.

The pursuer Isabella Peden or Gow was married to the defender John Gow In 1875. they lived together till the spring of 1877 at Macbiehill, near Peebles. At the date of this action there was one surviving child of the marriage. The evidence was to the effect that the defender treated the pursuer so cruelly during their cohabitation that her health suffered. During a period of illness from which the pursuer suffered, and which was, at least to some extent, the result of the defender's ill-treatment, the defender at her request allowed her to go to her father's in Peebles for a week or two until she should be stronger. A few days after he demanded her return by letter, but she was then ill and in bed, and replied that she could not do so. She afterwards went to their house, saw him, and got away a few clothes. She only got away a few articles for immediate use, as she intended to return. Several letters passed, which, however, had been destroyed, in the earlier of which, according to the evidence of the pursuer's sister,

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the defender said he would keep open the house for her, but in the later he said he would have no more to do with her, and would go abroad and never see her again. He never afterwards contributed to her maintenance or the child's, and in point of fact he did sell off all he had and left Macbiehill. He was not discovered till the pursuer's agent succeeded in finding him in order to effect service of this action. He was then—whether or not he had ever gone abroad—living at Millerhill in Midlothian.

The Lord Ordinary reported the case to the Second Division, with this note.

“Note.—I have reported this undefended action because it raises a point which is likely to occur in other cases, and which is proper for the consideration of the Court. The wife, who is the pursuer of the action, left her husband's house more than four years ago and went to live with her father. The husband a few weeks later sold his furniture and left the place where he resided. Up to the time of instituting the action he had not communicated with or made his address known to his wife. She alleges, and I considered it to be proved, that she left her home in consequence of her husband's intemperate habits and his cruel behaviour to herself,—behaviour which, in my opinion, would have entitled her to resist a demand for adherence if such had been made by him. The question arises, is this constructive desertion by the husband? The inclination of my opinion is in the affirmative, because I see no real distinction between the cases of the man who drives his wife out of doors with blows, and the man who, with greater cunning, and possibly with the view of depriving her of her legal remedies, makes life intolerable to his spouse, and thus compels her to leave him. In the present case I think it is the husband who must be considered to have, in the words of the Scottish statute, ‘diverted’ from his wife. If the husband is the party originally to blame, there can be little doubt but that he is responsible for the continuance of the “diversion’ or estrangement during the four years that have elapsed, because during all that time he kept out of the way, and thus made it impossible that overtures of reconciliation should be addressed to him.

“I ought to add, that in another case, which is very similar in its circumstances, I have reserved judgment, with the intention of being guided by the opinion of the Court in the present case.”

The pursuer argued that she was justified by the ill-usage proved in going to her father's, and that the defender's conduct while she was so living was malicious desertion, for he broke up the house and left the district, and had never inquired after her or sought to see her or offered to maintain her— Muir v. Muir, July 19, 1879, 6 R. 1353; Winchcombe v. Winchcombe, May 26, 1881, 8 R. 726.

At advising—