26 Mo. 545 | Mo. | 1858
delivered the opinion of the court.
This is a petition for a divorce by the husband for alleged cruelty towards him on the part of the wife. It is obvious that in cases of such kind the attention can not be confined to the particular act or acts alleged as a ground for a divorce, but the inquiry must necessarily involve the conduct of the parties to each other for the period during which it is alleged that the misconduct took place. It is not like the case of a bill for divorce for adultery or any other specific act, on the proof of which the complainant by law becomes entitled to a divorce, but the cruelty in most cases which gives cause for
When all the circumstances of this case are considered, taking as true the acts of violence alleged to have been committed by the wife towards the husband, we are of opinion that the husband is not entitled to a decree, and that opinion is based on the conduct of the husband himself. An entire exemption from fault or censure is not regarded as necessary in order to entitle one of the parties to a marriage to a separation from the other on the ground of cruelty. But when one of the parties, and especially the husband, complains of the cruelty of the wife, he must look well to it that his own deportment has not contributed materiallylio~tIie wrong of which he complains. If the husband "tecs — fey his conduct stifled in the breast of his wife all sentiments of love or regard, it is not for him afterwards to complain of her cruelty. If the cruelty under which he suffers be the natural jeturn of his own ill conduct, he can not have redress in a court of justice, but must find his remedy in the correction of his own manners. The act of the wife which led imnUdiately to the institution of this suit, is the one on which most stress is laid by the complainant. The conduct of the parties on that occasion is differently represented by the witness. Take it the transaction was as represented by the complainant. It is certain that the wife on that occasion was sick and in bed. The duty of a husband on returning home under such circumstances was plain. But before he entered the room of his wife, he went into the kitchen and inquired of the servant he found there, “ how is that woman ?” Could any thing be more significant of the character of the feelings rankling in his heart than such an inquiry ? Is it strange that a fight occurred when he afterwards went into the presence of a high spirited woman with the state of mind indi
The extent of the jurisdiction of our courts in matrimonial causes is limited by statute; a court has no authority to grant alimony but as an incident to a divorce, except where it is conferred by law. The ninth section of the act concerning divorces (R. C. 1845) allows a decree for alimony when the husband, without good cause, shall abandon his wife and refuse or neglect to maintain and provide for her. Without such a statutory provision the courts can not decree alimony but as an instance to a divorce. (Yule v. Yule, 2 Stockton’s Ch. 138; Bishop on Marriage and Divorce, 549 and following.) It becomes then material to ascertain whether the decree for alimony in this cause can be sustained. The law only allows such a decree on account of abandonment accompanied with a neglect to provide for the wife. Does the separation of a husband from his wife during the pendency of a suit for a divorce constitute an abandonment within the meaning of the statute ? The husband has a right to sue for a divorce, and it would be hard to compel him to cohabit with his wife during the pendency of such suit. Such cohabita
The plaintiff will pay cost.