| Mass. | Mar 5, 1918
The libellant petitioned for a divorce, alleging cruel and abusive treatment. She testified that she was married in 1910, that in 1916 her husband “stayed away from her longer than he had ever in four years and went out many evenings;” that when she spoke to him about this he said “he had been going . . . with a girl in Boston;” that she became unhappy, could not sleep, “had extreme attacks of vomiting;” that “she expostulated with him and told him of her suffering” and he said he could not give up the girl; that she was worried, became sick and has not completely recovered her health. There was additional evidence of her physical condition, and that her health was injured by her husband’s conduct; and also, testimony tending to show his adultery.
The judge found there was no evidence of physical violence, that during the libellant’s sickness she lacked no attention “except her husband’s personal attention,” that her health was impaired “because of the alienation of his affections,” and that her testimony and that of her witnesses was true. He dismissed the libel and reported the case, his order to be reversed if upon the facts he was warranted in granting the divorce.
In dismissing the libel the. judge was right. On the ground alleged there was no evidence to warrant the granting of the petition. The divorce was not sought because of the husband’s adultery, and however cruel his conduct may have been — and although it may have seriously injured the libellant’s health —■ the offense and his confession of it did not amount to cruel and abusive treatment within the divorce statute. R. L. c. 152, § 1.
In W— v. W—, 141 Mass. 495" court="Mass." date_filed="1886-05-06" href="https://app.midpage.ai/document/w-v-w-6422040?utm_source=webapp" opinion_id="6422040">141 Mass. 495, it was held that the commission by the husband of a disgusting act in the presence of his wife, which injured her health, was not cruel and abusive treatment within the statute, in the absence of evidence that the act was done with the intention of injuring her. “The words ‘cruel and abusive treatment’ seem to import on their face conduct directed toward the other party, and with a malevolent motive.” There was no evidence to support a finding that the acts of the husband were committed with such motive, and there was noth
Neither words nor acts which do not involve physical violence, inflicted on the other party, are sufficient to constitute cruel and abusive treatment within the meaning of the statute, unless it is shown that the language was uttered or these acts were committed with a malicious intent and for the purpose of injuring the libellant. As there was nothing to show such an intent and none can be inferred from the evidence, the judge could not grant the divorce and was fully warranted in dismissing the libel.
According to the terms of the report, the order dismissing the libel is to stand “without prejudice to a libel for any other cause.”
So ordered.