4 Haw. 58 | Haw. | 1878
Opinion of the Court by
This is a libel for divorce on the ground of desertion for
The point is made that the Court is not, for this reason, justified in refusing the divorce.
The principle upon which recriminations are entertained in Divorce Courts, as grounds for refusing divorces, is the general one that a man cannot obtain redress for a wrong unless he is himself free from blame in the matter; he must come into Court with clean hands, and hence the Court will not grant relief to a suitor who is shown to have committed such an offense as would entitle the other party to a divorce, if innocent.
Lord Stowell says that the doctrine of recrimination has its foundation in reason and propriety. “ It would be hard if a man could complain of the breach of a contract which he has violated; if he could complain of an injury when he is open to a charge of the same nature.” Where both are in fault “the parties may live together and find sources of. mutual forgiveness.in the humiliation of mutual guilt,” etc.
In Scotland, the Courts refuse to recognize the doctrine, except as the foundation for a cross action. Bishop (Marriage and Divorce, Section 390) says: “In this conflict of opinion abroad, in respect even to the policy of the doctrine itself, it is not wonderful that the American judges should not have been entirely harmonious in defining the limitations and extent of it, in its application to the jurisprudence of the country.”
The law, as it stood in the Civil Code, enacted that willful and continued desertion, without cause, for three successive years, will be presumed evidence of adultery. In this presumption we cannot concur. It farther enacted that the Courts might deny a divorce, “ although the fact of adultery or other offense amounting thereto should be established, when it shall be proved that the complainant has also been guilty of adultery, or other offenses amounting thereto, as would have entitled the defendant, if- innocent, to a divorce.”
It has been seen that the Legislature has adopted the principle of recrimination; and if recrimination is held to be a good defense, even where adultery is charged, there would seem to be no reason why the same replication may not be effectual when a defendant is charged with a lesser offense.
Now the course of reasoning has generally been this, that if both parties were to commence proceedings at the same time, and it should be made to appear that each of them would be entitled to a divorce, that is to say, that each party had committed acts which would entitle the other to a divorce, there could not be two concurrent decrees in favor of both parties. Then how can the Court pronounce in favor of one party when to pronounce in favor of the husband will entitle him to the fruition of the proceeds of his wife’s property. To pronounce in favor of the wife will entitle her to the enjoyment of her own property, or to alimony from her husband. To pronounce in favor of the husband would entitle him to the custody of the children, and deny the custody to the wife, and viee versa. Nor can it be of possible consequence that the defendant has not pleaded the offense of the plaintiff ás a bar to the action;
The decree in this-case is refused..