Shores v. Shores

23 Ind. 546 | Ind. | 1864

Rat, Ch. J.

This was an action for, divorce. The causes assigned were, that appellant, who filed the petition, had been compelled by the abuse and ill-treatment of the appellee to abandon him; that said appellee has, during the existence of the marriage relation, endeavored to destroy her chai’acter for chastity with her neighbors, by falsely charging her with improper intimacy with other men, when he well knew the charges to be false.

The issues raised by the pleadings were submitted to a jury, and the special findings show the following facts: the appellee had thrown the appellant upon the floor and choked her, and she had reason to fear further personal violence. She was induced to abandon him by his abuse and ill-treatment, and “ by means used by other persons.” "While they lived together, and since their separation, he has endeavored to destroy her character for chastity. The appellee did not discharge his duty as a husband while they resided together, and the jury find that the wife had cause to abandon her husband. The jury fbund also .“that during the existence of the marriage relation, and up to the time of the separation, -the appellant had not endeavored to discharge the duties of a faithful and affectionate wife, and win and retain the affection of her husband.” Upon this finding of the jury, the court refused to grant the divorce, and dismissed the bill. This ruling of the court is assigned as error.

B. F. Glaypool and J. G. McIntosh, for appellant. • Nelson Trusler, for appellee. ’

While we do not regard our statute as intended to destroy the permanency of the marriage relation, and permit every restless spirit to obtain legal release from its solemn obligations, still the wrongs in the case in judgment are too outrageous to be answered by any sin of mere omission.

That a wife should be so unwomanly as to fail to use due endeavor “to win and retain” the love of a husband who has stricken her to the earth and cruelly abused her person; that she should not have “ discharged the duties of -a faithful and affectionate wife ” to the husband who .has libeled her chaste name among her neighbors, may be a sin in the opinion of those who require of a mortal that perfection rai'ely attained. The statute law of Indiana is not so stern. The wife may be in fault, but the fault must be deadly, a crime, which shall close her lips in our courts to the recital of such grievous wrongs, and bid her return again to her husband’s protection.

In our opinion, the court, having submitted the issues to a jury, and the findings being within these issues, they can not be disregarded by the court, and those findings entitle the appellant to a decree of divorce.

The judgment of the court below dismissing the petition is reversed at the costs of the appellee, and the cause remanded; and it is directed that a decree of divorce be entered upon the special findings of the jury.