1. This is a wife's appeal from the judgment and decree of the learned Judge on the original side, who has dismissed her petition for dissolution of marriage. It appears that the parties were married on 26th April 1920. There is issue of the marriage, one son Derek, born on 13th March 1924. In 1921 the wife began proceedings for judicial separation in this Court which proceedings were discontinued. On 24th November 1930, the parties entered into a separation deed, upon the terms of which the main matter for decision arises. On 13th July 1931, the wife brought another suit against the husband, which she withdrew. On 3rd September 1931, she brought the present petition. In the first instance, four issues were settled. One was whether the petition was barred by reason of the previous proceedings. The second was whether the petitioner was entitled to refer to acts of cruelty alleged in the previous proceedings. Neither of these issues appear to be effective, nor indeed is there anything in the points which are raised thereby. Issue 3 is now the main matter before us:
Is the petitioner, by reason of the deed of separation referred to in para. 13 of the plaint, precluded from relying upon the acts of cruelty alleged?
2. This issue was of cardinal importance by reason of the present petition, which is a petition for dissolution of marriage, grounded on allegation of adultery by the husband subsequent to the separation deed of 24th November 1930, coupled with allegations of cruelty, charged to have taken place prior to the execution of that deed. Before the learned Judge, the terms of Clause 3 of the deed were carefully discussed. The terms of the clause are as follows:
No proceedings shall be taken by or on behalf of the said William Boyd Monk or the said Alice Miriam Monk against the other of them in respect of any misconduct or alleged misconduct previous to the date of these presents and any offence which may have been committed or permitted by either of them against the other is hereby condoned.
3. It is to be observed that this clause is in two parts and I will consider later whether the part which refers to condonation can, in any way, be regarded as cutting down the effect of the first part of the clause, which says:
No proceedings shall bo taken in respect of any misconduct previous to date of these presents.
4. The learned Judge came to the conclusion that the term of the clause precluded the wife from founding upon alleged acts of cruelty by the husband committed prior to the date of the deed, oven in a case where her claim to dissolution of marriage was partly grounded upon alleged acts of adultery by the husband committed afterwards. He therefore held that this term of the deed was a bar to the suit, so far as it was founded upon allegations of cruelty prior to November 1930. As the parties had been living separate since the date, the wife was naturally enough not in a position to allege cruelty committed after the date of the deed; as the law under the Indian Divorce Act stands, she could make no case for dissolution of marriage on the ground of adultery by itself, though she could get a judicial separation merely by reason of the adultery. The learned Judge, having decided as to the effect of Clause 3, allowed the wife to raise an issue whether the deed of separation had not been obtained from her by coercion: on that question he found against the wife and in favour of the husband. That matter has not been further agitated before us. On his giving this decision, learned Counsel for the wife did not propose to tender further evidence and the suit was, accordingly dismissed.
5. At the hearing of this appeal, we have been taken very carefully by Mr. Isaacs, on behalf of the wife, through the cases in England, which have raised the question whether or not subsequent misconduct enables a party, who has entered into a covenant to the effect that prior acts of misconduct are not to be put in issue in subsequent proceedings, to found upon them, as part of the grounds of relief, subsequent misconduct having occurred. On this question, the first authority is the case of Rowley v. Rowley (1860) 1 HL 63, a decision of the House of Lords in 1866. That was a case where, after the Divorce Court had been established in 1858, the wife brought a petition for divorce against the husband on the ground of cruelty and adultery. At the trial, the case was compromised and a juror withdrawn, the husband undertaking to execute a deed of separation with certain covenants: the term of the compromise which affects the present question is as follows:
the petitioner undertaking not to institute other proceedings in the Divorce Court.
6. That was on 12th March 1861. On 9th May 1863, Mrs. Rowley filed a fresh petition in the Divorce Court, charging the same acts of misconduct as were referred to in the first petition, charging other acts of misconduct alleged to have taken place, though not to her knowledge, prior to the date of the compromise and charging further acts of misconduct since the date of the compromise. Sir James Wilde (afterwards Lord Penzance) was of opinion that she could not do so. He said:
It has been ingeniously argued, that the adultery charged to have been committed in 1862, that is, after the date of the deed of compromise revived the previous cruelty, as it would do in an ordinary ease of a condonation. Now, condonation is that species of forgiveness or reconciliation which, in furtherance of the marriage bond., the law has declared to be binding only on condition of future good conduct. But here there is no such condition to be found.
7. He dealt further shortly with the question of public policy. He said:
The agreement has been violated. Why should not the Court give it effect?
8. He proceeded to distinguish between the course taken by the Court in furtherance of the obligation of marriage and the view that was taken by the Court when the arrangement between the parties was not for the furtherance of marriage, but for bringing cohabitation to an end. That was the judgment which went on appeal to the House of Lords and both Lord Chelmsford and Lord Cranworth were of opinion, first, that
no condition as to the absence of future misconduct could be read into the undertaking not to institute other proceedings in the Divorce Court;
further, that undertaking did not affect in any way subsequent acts of misconduct and, thirdly, that it did comprise all deeds of misconduct up to the date of the compromise itself, whether the wife was shown to have no knowledge at the time of the compromise or not. The view taken in the House of Lords was:
The learned Judge Ordinary very properly rejected the supposed analogy between this case and a case of condonation. In the latter case there is a conditional forgiveness; here there was an absolute release.
9. Lord Cranworth says:
It necessarily follows that inasmuch as she has now instituted proceedings founded in part upon something which occurred before that time, the suit cannot be sustained, and consequently the decree appealed from must be affirmed.
10. I do not refer to this case for the purpose of assuming that the construction of one contract must be a guide to the construction of another. I refer to it to show that we have to keep in our minds two things as separate things. The Common law question of release is one thing; the question of condonation for purposes of Ecclesiastical Court or Divorce Court may be different. In the present case, from the words
no proceedings shall be taken in respect of any misconduct previous to the date of these presents
it does seem to me that it is impossible for us either by reason of the context or by reason of any general principle to insert an exception into the clause before us, and it is all the less possible because it is now settled and established law that an agreement of this sort is not to be read as impliedly subject to good conduct on the part of the parties. Whatever was right and whatever was wrong in the case of Gandy v. Gandy (1882) 7 PD 168 commented upon in the case of Hyman v. Hyman (1929) AC 601 that line of decision has established that the view at one time taken by Sir James Hannon to the effect that there is an implied condition against misconduct in a deed of separation is unfounded. The next case, which bears any close analogy to the present case is the case of Norman v. Norman (1908) P 6. There the wife had instituted divorce proceedings against her husband. After the husband entered appearance, terms were arranged and a deed of separation was executed. After reciting the proceedings, the deed went on:
All further proceedings in the said suit by the said Mary Ann Norman against the said William Norman shall be stayed and that the said Mary Ann Norman shall in no wise attempt to revive the same in any manner whatever.
11. It is to be observed that 'the same' in that clause refers to proceedings in the said suit. The husband, having afterwards committed adultery and a suit for dissolution of marriage having been instituted, in which the previous misconduct was part of the grievance alleged, Bargrave Deane, J., took the view that the case was not on all fours with the previous case of Rose v. Rose (1883)8 PD 98 where the clause expressly said that in no future proceedings should the antecedent charges be relied on. In Norman v. Norman (1908) P 6-a new suit upon a fresh allegation of adultery-there was not an attempt to revive the previous proceeding and, on that ground, Norman v. Norman (1908) P 6 is a different case from the case now before us. The matter came before Sir Gorell Barnes in the case of Balcombe v. Balcombe (1908) P 176. The covenant in that case, for all practical purposes, was the same as the covenant before us now and it was contended that the cruelty which preceded the deed was revived by subsequent adultery. It was emphasized that the second part of the elaborate clause in Rose v. Rose (1883)8 PD 98 did not find place in the covenant. Sir Gorell Barnes, having remarked, in the course of the argument, that Rowley v. Rowley (1860) 1 HL 63 was more against the petitioner than the case of Rose v. Rose (1883)8 PD 98, proceeded to decide the case before him, upon other grounds, it being very noticeable that he was not prepared to hold that, on the terms of the deed in that case, subsequent misconduct enabled the previous misconduct to be utilized. He held that, for all practical purposes in that case, the husband had repudiated the deed, he had gone away to America, he had ceased to make any payment under it and he had torn up the copy which he had before leaving the country. It was held, in these circumstances, that the deed was no longer binding on the petitioner at all. The Court was very careful not to lay down the proposition that subsequent misconduct revived the previous misconduct against the terms of the deed. The next case, which throws any light upon this question, is the case of Ehlers v. Ehlers (1915) 113 LT 1215 That was a case in which the clause in the deed of separation, which Horridge, J., had to construe, contained two parts. The first part was very much to the same effect as the first part of Clause 3 in the present case:
Neither... shall be at liberty to take any legal proceedings against the other of them in respect of any matters which have hither to occurred.
12. But the clause went on to say:
Neither... shall be at liberty to take any proceedings in the future for a judicial separation or any proceedings whatsoever other than the proceedings for a dissolution of marriage.
13. Apart from exceptional misconduct, which could hardly have been in the contemplation of the parties, the wife could only get dissolution of marriage by proving in addition to adultery some acts of cruelty. Under the separation deed, she could not allege desertion. It was held by Horridge, J., that the second part of the clause showed that, in the event of subsequent adultery by the husband, previous cruelty was intended to be taken into account as a ground of relief at the instance of the wife. In his opinion:
If the clause had ended with the words 'hitherto occurred,' the petitioner's claim to revival would have been defeated, but the latter part of the clause can only refer to using the past cruelty in addition to subsequent adultery.
14. It appears to me that if we take the first part of Clause 3 of the present deed by itself the correct view to take is that this is a release not expressed to be conditional and that there is no condition to be imported to the effect that subsequent adultery by the husband brings the effect of the clause to an end. The second part of the clause before us is to the effect that any offence which may have been committed is hereby condoned and it may possibly be said that, if the meaning attributed to the first part of the clause is what I have concluded it to be, the second part of this clause would be unnecessary; and that therefore reading the clause as a whole, the first part of the clause should not be taken to mean more than a conditional release, a release conditional upon subsequent good conduct. This argument however can be shown to be entirely bad if only by a consideration of the case of Gooch v. Gooch (1893) P 99 where Sir Francis Jeune had before him the question of the effect of such a clause as this when the previous misconduct was being relied upon not by the petitioner as a part of her ground for relief but by the respondent as a part of his answer. In that case, the wife, after a deed almost exactly in terms of the present clause, presented a petition for judicial separation against the husband on the ground of adultery committed subsequent to the deed; the husband, in his answer, charged the wife with adultery committed prior to the deed; and the whole point of that decision turned upon the fact that, in the deed of separation, there was no clause about condonation. It was hold that:
The covenant in the deed of separation was not equivalent to condonation, and that it did not preclude the husband from pleading in answer to his wife's petition adultery committed by her before the date of the deed.
15. I am of opinion therefore that the decision of the learned Judge upon the effect of C1 3 was right and that, in view of the fact that decision having been given, the wife did not proceed with her case in order to obtain a judicial separation on the ground of adultery subsequent to the deed, the learned Judge was entirely right in dismissing the suit. In my judgment, this question of the effect of the clause is upon the English cases the only question which is reasonably open to debate. It is suggested to us that it might be held that if the clause has the meaning which I have given to it, the clause is void as contrary to public policy. As to that I can only say that there stand to the contrary the decision of the House of Lords in Rowley v. Rowley (1860) 1 HL 63, the decision of the Court of appeal in Rose v. Rose (1883)8 PD 98, the decision of Lord Merrivale in the case of L. v. L. (1931) P 63, a decision which was given after considering the effect, if any, on the present question of the case of Hyman v. Hyman (1929) AC 601 decided by the House of Lords in 1929. That matter therefore is not open to reasonable discussion.
16. The only question is as to costs of this appeal. I have satisfied myself that there is no practice which requires us to make the husband pay the costs of an unsuccessful appeal by an unsuccessful wife and, in the present case, the facts are such that it would be quite impossible for us 'to make any order more favourable to the wife than that the parties are to pay their own costs and I propose that we make that order. The appeal is dismissed.
17. I too am of opinion that Clause 3 operates as an absolute release and not merely by way of conditional condonation. For the reasons given by my Lord I think that the appeal must be dismissed.