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Vol. II WINDEATT v. WINDEATT 91

II (1981) DMC 91 (BJ)
Also Reported in The Weekly Law Reports (1962) 5 1056
COURT OF APPEAL
Willmer, Danckwerts & Ormerod, JJ.
WINDEATT—Petitioner
versus
WINDEATT—Respondent
(i) Cruelty (Editorial Note — as under S. 13(1)(ia) of the Hindu
Marriage Act, 1955 (as amended in 1976) — Whether coutiuous associa-
tion with other woman amounts to cruelty, even when the intention
of the respondent (husband associated with another lady) is not to
injure the wife.
Held—Yes. If it was established that due to such association of the
other spouse (in the instant case of the husband with another lady) with a
stranger, the petitioner-wife’s health was adversely affected, although the
husband may not have intended to injure her, yet such callous indifference to
the feelings of the complaining spouse amounts to cruelty.
[Paras 14, 15 & 19]
Held further—Even when there is no allegation of adultery or of any
sexual impropriety against the respondent husband, yet due to his indifferent
attitude his conduct tantamount to cruelty towards the petitioner-wife.
(ii) Medical evidence — Whether necessary to prove the adverse
effect on the health of the complaining party — No, If the other wit-
nesses are able to depose about even the apprehension of injury to
health, it is sufficient evidence. [Paras 10 & 13]
(iii) Non-rebuttal of evidence — even when a party despite
ample opportunity does not rebut the other party’s evidence,
the court is justified in accepting the uncontradicted evidence as
truthful and reliable. [Paras 9, 12 & 22]
(iv) Applicability of doctrine of precedent in matrimonial
matters, especially on the ground of cruelty — question of cruelty or
not cruelty is not to he decided merely by reference to other deci-
sion. It is a question of fact depending on the circumstances of
each individual case. [Para 22]
Result : Appeal dismissed.
Cases referred :
1. Windeatt v. Windeatt, (1962) WLR 527=(1962) 1 All.ER 776 (CA). [Para 1]
2. Kaslefsky v. Kaslefsky, (1951) P. 38=66 TLR Pt. 2, 616=(1950) 2 All.ER 398 [Para 14]
(CA). (Relied)
3. Jamieson v. Jamieson, (1952) AC 525=(1952) 1 TLR 833=(1952) 1 All.ER [Para 15]
875. (Relied)
4. Lang v. Lang, (1955) AC 402=(1954) 3 WLR 762=(1954) 3 All.ER 571. [Para 15]
(Referred)
5. Simpson v. Simpson, (1951) P. 320=(1951) 1 TLR 1019=(1951) 1 All.ER 955. [Para 16]
(Relied)
6. Squire v. Squire, (1949) P. 51=64 TLR 371=(1948) 2 All.ER 51 (CA). (Relied) [Para 16]
7. Usmar v. Usmar, (1949) P. 1=64 TLR 500. (Relied) [Para 17]
8. Cox v. Cox, (1952) 2 TLR 141 (CA). (Referred) [Para 18]
9. Walker v. Walker, (1961) 3 WLR 405=(1961) 3 All.ER 14. (Relied) [Para 19]
10. Lauder v. Lauder, (1949) P. 277=(1949) 1 All.ER 76 (CA). (Relied) [Para 21]
11. King v. King, (1953) AC 124=(1952) 2 TLR 429=(1952) 2 All.ER 584. (Relied) [Para 22]
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92 DIVORCE & MATRIMONIAL CASES 1981
Counsel for the Parties :
For the Petitioner : John A. Hall.
For the Respondent : Henry Summer field.
Important Point
Continuous association with the other woman, even when there is no
allegation of adultery amounts to cruelty, even when the respondent may
not be having an intention to injure the wife.
JUDGMENT
Willmer, LJ.—A wife, Iris Emily May Windeatt, petitioned for
divorce on the ground of the cruelty of her husband, Norman Oswald
Windeatt. The wife s complaint was almost wholly based upon an allegation
of persistent association between her husband and another, a married woman.
there was no allegation or evidence of adultery or of any sexual impropriety
between the husband and the other woman. At the trial before the commis-
sioner at Exeter on October 4, 1961, the wife gave evidence about the asso-
ciation and her evidence was supported by that of three other witnesses. The
husband s counsel elected not to cross-examine either the wife or the other
witnesses, and not to call either the husband or any other witness being
content to rely upon a submission that the wife had not made out any case of
cruelty. The commissioner granted the wife a decree nisi on the ground of
her husband s cruelty. Before the hearing of the wife’s petition, the commis-
sioner refused an application by the woman named for leave to intervene in
the suit, and in her separate appeal against that decision, the court decided
that they could not interfere with the commissioner’s exercise of his discretion
Windeatt v. Windeatt, (1962) WLR 527=(1962) 1 All.ER 776 (CA).
2. The evidence was that the parties were married on May 31, 1948
and there were no children of the marriage. At all material times the parties
lived with the husbands parents in Plymouth, where the husband was
employed by the corporation as a joiner-carpenter. The husband worked
regular hours during the daytime but, according to what he told his wife he
used to go out and do odd jobs on his own account in the evenings so as to
increase his earnings. The parties continued to live in the same house until
September 20, 1959, when it was the wife’s case that the husband left and
there was no subsequent cohabitation. From April 23, 1959, they had been
occupying separate rooms and living very much at arm’s length from each
other. In her evidence the wife complained that, in the early years of the
marriage, the husband was sometimes too interested in other women, She
said that she had a nervous breakdown in 1953 which she attributed to the
introduction of another woman into the house, a matter which did not affect
the case. In 1959 she underwent a major operation to one side of her
law.
3. In the spring of 1958 the husband in the course of his duties as an
employee of the Plymouth Corporation went to do a job at the house of the
woman named. He became friendly with her, and in due course introduced
her to his wife, and subsequently the parties saw a certain amount of her,
On Good Friday of 1958, the parties visited the woman named for tea and
that was followed by further visits on a number of ensuing Sundays, and
there was an occasion when the woman named came to visit the parties
themselves at their home. On one of these Sundays the husband, with the
wife’s permission, took the woman named for a run on his motor-cycle. The
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wife said that they were expected to be out for about an hour ; but they did
not in fact return until about 10 p.m., having been away about two and a
half hours, to which the wife made some protest. Thereafter, during the
summer of 1958, the parties met the woman named on a number of occasions,
usually on Saturdays, at the home of the wife’s mother, and the husband
developed the habit, initially with the permission of the wife, of running the
woman named home on his motor-cycle as she lived in a part of Plymouth
remote from the home of the parties. The wife said that it was a journey
which would normally occupy 25 minutes there and back, but her husband
would be away for about one and a half to two hours, and that she com-
plained to him about his taking so long, and he told her a story of having to
stay with the woman named after he got to her home in order to protect her
against her husband, with whom she was said to be on bad terms.
4. This went on week after week until about November, 1958, when
the wife said that she put her foot down and stopped the husband running the
woman named home from the visits to the wife’s mother’s house. The wife
said that her husband subsequently stayed out to a considerable extent. She
gave evidence of one occasion when he stayed out for a long time and said
that it was due to his motor-cycle being repaired, and of another occasion
when he was very late home and gave as his excuse that somebody had let
the air out of his motor-cycle tyres. The husband was also out in the
evening three times a week attending night school; but the wife said that
instead of returning about 9 p.m., it would always be 10.30 p.m. or 11 p.m.
before he got home. The wife said that she complained of this behavi-
our but that when she complained he merely made excuses and eventually
said: “If you “don’t like it, you know what you can do,” an observation
which according to the wife’s evidence, he repeated on a number of occasions
when she made complaints.
The wife became suspicious of her husband’s behaviour and on April
22, 1959, she thought she would explore in the area adjacent to where the
woman named lived to sec what she could find. That evening she found the
husband’s motor-cycle parked in the immediate neighbourhood of where the
woman named lived. Later that evening, the wife tackled the husband about
it and he told her what she knew to be a blatant lie, saying that he had been
out doing a wall-papering job at a place called Efford, which she knew to be
in the opposite direction.
5. The following day the wife went again to observe outside the house
where the woman named lived, taking with her husband’s sister, Mrs.
Oxland, who was called as a witness for the wife. The husband’s motor-cycle
was again found outside the house of the woman named and the wife said that
discovery made for feel quite ill and she thought her legs were going to
buckle under her. When the husband came home, the wife told him what she
had seen and called him a liar. The husband repeated the story of having
been out at Efford doing his wall-papering job, and when the wife said that
she knew that was a lie, he replied that she was having hallucinations. The wife
said that her husband then started to assault her, taking her by the hand and
bending her fingers back and threatening to break the other side of her jaw,
which the commissioner found was no idle form of words. The wife was
frightened and screamed, and Mrs. Oxland and the wife’s father-in-law came
running in. There was no further exhibition of violence, but the husband
again said in the presence of his father and Mrs. Oxland that the wife and
Mrs. Oxland were having hallucinations in pretending to have seen his
motor-cycle parked outside the house of the woman named. The husband’s
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threats so affected the wife that she straightway left the husband’s bedroom
and went to sleep with Mrs. Oxland. The parties never slept together again
and for the rest of the time that the husband resided in the house, they lived
very much at arm’s length, The wife said that she was too frightened to sleep
with her husband again and subsequently did not appear to have taken any
great interest in the movements of her husband, but the evidence of the other
witnesses showed that the husband continued to associate with the woman
named until well into 1960.
6. The wife gave evidence that during the time when the husband was
associating with the woman named her health deteriorated. She said about
her health at the material time:
“My nerves were getting under par. I felt tired and restless. So I
went to the doctor and he prescribed some tablets. I lost weight.”
Corroborative evidence was given by the wife’s niece and her husband, a Mr.
and Mrs. Warren, both of whom spoke of the husband association with the
woman named and both of whom gave evidence that the wife appeared to
become very nervous. Mrs. Oxland gave evidence corroborating the wife’s
story about the events of April 23, 1959, and she also said that she noticed
that the wife was becoming very nervous and worried.
7. The commissioner summarised his view of the husband’s conduct as
follows :
“The husband’s conduct would have caused and reasonable wife
to suspect strongly that he was misbehaving himself with this other
lady, I go to the point of saying that his method of dealing with it
was as fraudulent as the various fraudulent statements culminating in
his seriously trying to persuade her that she was afflicted with hallu-
cinations. Then he attempted violence, which only went so far as
bending back her hand, when he was interrupted, Then there was
this most odious and discrediting reference to fracturing her other jaw,
and the whole thing certainly is lamentable misbehaviour of which
any man should be ashamed...The account which she has given and
which has been corroborated and undisputed throughout to my mind
shows grave and weighty conduct on the part of the husband which
occasioned ill-health to her.”
He concluded that cruelty had been made out against the husband and he
pronounced a decree accordingly.
The husband appealed and it was contended on his behalf that there
was no evidence to support the commissioner’s finding, and alternatively that
the finding was against the weight of the evidence,
8. Ormerod, LJ.—I will ask Willmer L.J. to deliver the first judgment.
8A. Willmer, LJ.—outlined the history of the case and said: On this
appeal all we have before us is the evidence given by the wife and the other
witnesses called on her behalf. That evidence stands uncontradicted.
9. For myself, I do not think that in those circumstances it is open to
the husband to challenge the evidence as inaccurate, still less as untrue. For
the husband was present throughout the trial, as was his counsel; the evidence
that was given was heared by them, and, if it were desired to rebut anything
that was said by the wife, there was abundant opportunity to do so. Still
less, I think is it open to challenge the wife’s evidence in this court, having
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regard to what the commissioner said in his judgment about her and her
witnesses:
10. His Lordship summarised the evidence given by the wife and
her witnesses set out above and continued : In this court the commissioner’s
judgment has been attacked in two ways. First, in relation to the facts, it
is contended that the commissioner misdirected himself as to the effect of the
evidence that had been given. It is said that, on the wife’s own evidence,
the earlier part of the association complained of consisted of no more than
a few motor-cycle trips to which the wife voluntarily assented. It is said that
after she put her foot down and stopped those motor-cycle trips in Novem-
ber, 1958, there is no sufficient evidence to justify any inference that the
association between the husband and the woman named was continuing.
Then comment is made on the fact that no doctor was called to give medical
evidence. In those circumstances, it is said that there was no sufficient
proof of any connection between the husband’s conduct that was complained
of and any deterioration in the health of the wife.
11. So far as those submissions are concerned, I do not think that
they will really bear examination. As I read the evidence, the wife made it
clear from a very early stage that she did object to the prolongation of these
motor-cycle trips which the husband was taking with the woman named.
She said that she told him he was not playing the game, and that it was in
that context that she finally put her foot down and stopped the husband from
taking the woman concerned on 1m motor-cycle. After that it is perfectly
true that the husband was no longer openly taking the woman named for
motor-cycle trips or openly associating with her ; but, as the wife explained
in evidence, he was staying out late a good deal and, when she took excep-
tion to his behaviour, he made what she thought were paltry excuses for
it. Moreover, be I have already said, he told her that if she did not like it,
she knew what she could do.
12. In those circumstances I think that, although the wife never
actually said so in terms, one must infer that she became suspicious of what
her husband was doing, and it is to my mind not in the least unnatural that
she should become suspicious. If she did, one can only say that what she
found out on April 22 and 23, 1960, showed how right her suspicions were.
In the absence of any evidence to the contrary, it seems to roe that the in-
ference is overwhelming that the husband’s association with the woman
named was continuing. All I can say is that, if that is a wrong inference,
the husband had abundant opportunity of proving that it was a wrong in-
ference by going into the box and denying it.
13. With regard to the question of injury to health, I have referred
to the evidence that was given by the wife and by her three relatives who
were called. Having regard to that evidence, it seems to me that there was
sufficient proof of at least an apprehension of injury to health. Indeed, con-
duct of the kind complained of by the wife was, I should have thought,
conduct which would be only too likely to upset and cause ill-health to a
sensitive wife. But over and above that, we have to consider also the threat
of injury to the jaw which the husband made on April 23, 1959, a threat which,
as I have said, so frightened the wife that she left the husband’s bedroom for
good. I do not think, in those circumstances, that Mr. Hall was well founded
in submitting that the commissioner misdirected himself as to the effect of the
evidence that was given.
14. Secondly, it was argued on behalf of the husband that the facts
proved by the wife were insufficient in law to warrant a finding of cruelty.
That really amounts to saying, as I understand the argument, that the peti-
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tion was demurrable. This seems to me to be a difficult contention to sub-
stantiate, for (as I understand the authorities) it has been well established that
any course of conduct, even if it is not consciously aimed at the other spouse,
may nevertheless amount to cruelty if it is intentionally pursued with a callous
indifference to the feeling of the other spouse and, of course, if it is pursued to
the point of endangering health. In saying that, I am I hope accurately
paraphrasing what was said by Denning L.J. in Kaslefsky v. Kaslefsky
(1951) P. 38=66 TLR Pt. 2, 616=(1950) 2 All.ER 398 (CA), an authority
to which reference is frequently made, and one which I think I may add
Danckwerts L.J. and I had occasion to consider in some detail earlier in
the present term.
15. The argument for the husband, as I understand it, is that in
order to make a case of cruelty there must be proved first of all an intent to
injure, and secondly something which can fairly be called ill-treatment. Mr.
Hall, however, as I understand his argument, accepts the well-worn proposit
on that intent to injure may be inferred in cases where injury is the natural
and probable consequence of the conduct complained of. So far as the
question of intention is concerned, we were referred by Mr. Hall to Jamieson
v. Jamieson, (1952) AC 525=(1952) 1 TLR 833=(1952) 1 All.ER 875,
HL and Lang v. Lang, (1955) AC 402=(1954) 3 WLR 762=(1954) 3 All.
ER 571, PC The former was a decision of the House of Lords in a
Scottish appeal; the latter was a decision of the Privy Council on appeal from
Australia. It seems to me, however, that those cases give scant support for
Mr. Hall’s argument. As I understand the decision in Lang v. Lang, (1955)
AC 402=(1954) 3 WLR 762=(1954) 3 All.ER 571, PC the effect of it is
to show that even where there is no desire to hurt, nevertheless an intention to
hurt may be inferred if the conduct complained of is pesisted in when a rea-
sonable person would have foreseen that it would be likely to cause hurt.
Applying that to this case, it seems to me there was abundant material to
justify the commissioner in drawing the inference that, even if the husband
had no desire to hurt the wife, he was guilty of conduct from which the
necessary intention could be inferred.
16. In Jamieson’s case, (1952) AC 525=(1952) 1 TLR 833=(1952) 1
All.ER 875, Lord Merriman gave his blessing, not
for the first time, to the well-worn maxim that a man may be
presumed to intend the natural consequences of his acts, and he went no to
say: Ibid 541.
“I have expresse my own views on this matter recently in Simp-
son v. Simpson, (1951) P. 320, 333=(1951) 1 TLR 1019=(1951) 1 All.
ER 955, D.C and I do not propose to repeat them, but I may
perhaps be allowed to quote one sentence”.
Then Lord Merriman quotes from the report of Simpson v. Simpson, (1951)
P. 320,333=(1951) 1 TLR 1019=(1951) 1 All.ER 955.
Without going through the careful examination of the doctrine in
Squire v. Squire, (1949) P. 51=64 TLR 371=(1948) 2 All.ER 51
(CA), with which I respectfully agree, I venture to suggest that in this
jurisdiction at any rate we may continue to use the time-honoured
maxim, provided always that we remember that it does not express an
irrebuttable presumption of law and that it is only to be applied in
connection with conduct which can fairly be described as ill-treatment.”
That sentence, as it seems to me, provides me with a bridge from one branch
of Mr. Hall’s argument to the other; but, so far as the argument with regard
to intention is concerned, I can only repeat that in my judgment there was
abundant material to justify the commissioner in this case in inferring the
necessary intention.
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17. I come, therefore, to the other branch of the argument, namely,
that to justify a finding of cruelty there must always be something in the
nature of ill-treatment. Reliance was placed on that extract from the judg-
ment in Simpson v. Simpson, (1951) P. 320, 333=(1951) 1 TLR 1019
=(1951) 1 All.ER 955, which Lord Merriman quoted with
approval in the House of Lords. (1952) A.C. 525, 541. Reference
was also made to a decision of my own in Usmar v. Usmar, (1949) P. 1=64
TLR 500, where I am reported as saying (1949) P. 1, 9 :
“It is clear that there must be something in the nature of wilful
and unjustified interference by one spouse in the sphere of life of the
other spouse.”
Reference was also made to what was said in Kaslefsky v. Kaslefsky, (1951)
P. 38=66 TLR Pt. 2, 616=(1950) 2 All.ER 398 (CA), to which
I have already referred, where the same theme was touched
on. The argument was that in the present case there was lacking what Mr.
Hall described as the physical element necessary to constitute cruelty; there
was nothing, that is to say, in the shape of ill-treatment of the wife; the most
that was being alleged was a continued association with some other woman,
largely behind the wife's back, which was in no sense an interference with
her sphere of life.
18. The argument was pressed further, because we were also referred
to Cox v. Cox, (1952) 2 TLR 141 (CA), a decision of this court. Unhappily
there is only the briefest of reports of that case; but it was brought to our
attention as being a case very similar on its facts to this case, in that, like this
case, it was one in which the main ground of complaint was association with
another woman or other women. In that case the commissioner, who tried
the case originally, refused to grant a decree on the ground of cruelty, and his
decision was upheld in this court.
19. We were also referred to a recent decision of the Divisional Court
in Walker v. Walker, (1961) 3 WLR 405=(1961) 3 All.ER 14, which
again concerned a cruelty charge arising out of association between the
husband and another woman. In that case the finding of cruelty which the
Divisional Court upheld was upheld on the basis that the association was
flaunted in the face of the complaining wife. It was suggested that only in
that sort of case could it be said that on association with another woman could
amount in any sense to ill-treatment of the wife. I do not accept that only
in such circumstances could association with another woman be regarded as
ill-treatment by a husband of a wife, because, as I indicated during the argu-
ment, I can think of no course of conduct more calculated to cut at the root
of matrimonial life than that, or anything more calculated to hurt and distress
a sensitive wife.
20. The question, however, is not, I think, to be resolved by looking
at law reports and seeing how other cases in other circumstances have been
decided. The argument that has been presented to us falls down, to my
mind, because it offends against the very thing about which the House of
Lords has given warning. I would refer back at this juncture to Jamieson v.
Jamieson, (1952) AC 525=(1952) 1 TLR 833=(1952) 1 All.ER 875,
to read what I think is now an oft-quoted passage
from what was said by Lord Tucker in the course of his speech. Lord Tucker
said Ibid 550 :
“judges have always carefully refrained from attempting a com-
prehesive definition of cruelty for the purposes of matrimonial suits, and
experience has shown the wisdom of this course. It is in my view
equally undesirable—if not impossible—by judicial pronouncement to
create certain categories of acts for conduct as having or lacking the
nature or quality which render them capable or incapable in all circu-
mstances of amounting to cruelty in cases where no physical violence is
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averred. Every such act must be judged in relation to its attendant
circumstances, and the physical or mental condition or susceptibilities
of the innocent spouse, the intention of the offending spouse and the
offender's knowledge of the actual or probable effect of his conduct on
the other's health (to borrow from the language of Lord Keith) are all
matters which may be decisive in determining on which side of the line
a particular act or course of conduct lies”.
I take that as being the guiding principle which has to be followed in this
class of case. The conduct complained of must be looked at as a whole, and
it must be looked at in the light of the sort of people the parties are. In par-
ticular, to come back to this case, I think special emphasis must be laid on
the commissioner's assessment of the sort of person the wife was. At page
4 of his judgment, he said this :
“The wife appeared to me to be a sensitive and highly-strung
lady, even making allowance for the stress and discomfort or shyness
which some witnesses experience in coming forward in a public court.
I think anybody would soon form the impression that she could be
very easily wounded and distressed by unkindness.”
That assessment by the commissioner of the character of the wife is a thing to
which we in this court must attach the greatest importance. He had the
advantage of seeing the wife and we have not; and we must, I think, be gui-
ded by the commissioner's opinion of her as a woman.
21. The question to be solved is that which was put by Pearce J. in
Lauder v. Lauder, (1949) P. 277=(1949) 1 All.ER 76 (CA). This again, I
fear, is an of-quoted sentence but, in my judgment, it bears repetition (1949)
P. 277, 308 Vol. 2 :
“in a cruelty case the question is whether this conduct by this
man to this woman, or vice versa is cruelty.”
22. As I have said, the matter must be looked at as a whole. That,
I think, was what the House of Lords decided in King v. King, (1953) AC
124=(1952) 2 TLR 429=(1952) 2 All.ER 584, HL although we were not
actually referred to that decision. It must be judged what the impact of the
conduct complained of, viewed as a whole, was on the personality of the
complaining party. In those circumstances, as I have already said, the ques-
tion of cruelty or not cruelty is not to be decided merely by reference to other
decisions reported in the law reports. It is, as I see it, a question of fact and
degree depending on the circumstances of the individual case. For my part,
I wholly reject the argument so eloquently put forward by Mr. Hall that it is
possible to say in a case like this that the wife's evidence as to the husband's
conduct was incapable in law of amounting to cruelty. The question, as I
have said, is in my judgment one of fact, and as such must necessarily depend
to a large extent on the commissioner's view of what sort of people the
parties were, and in particular what sort of person the wife was and how the
husband's conduct affected her. Bearing in mind that the evidence was
uncontradicted (and therefore, as I have indicated, to be accepted as substan-
tially truthful), I think it is impossible to say that the commissioner came to a
wrong conclusion either on the facts or on the application of the law.
23. In those circumstances, I would dismiss the appeal.
24. Danckwerts, LJ.—I agree with the comprehensive judgment
that has been delivered, and I have nothing useful to add.
25. Ormerod, LJ.—I agree.
Appeal dismissed.

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