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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rintoul Petitioner [1898] ScotLR 36_21 (22 October 1898) URL: http://www.bailii.org/scot/cases/ScotCS/1898/36SLR0021.html Cite as: [1898] SLR 36_21, [1898] ScotLR 36_21 |
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Page: 21↓
In a petition for the custody of the child of the marriage by a husband whose wife had left him, the wife lodged answers in which she justified her desertion by a general averment that her husband had been cruel to her, but averred no specific instance of cruelty. She further stated that the child was only ten months old, and had not been weaned, and that she proposed to raise an action against the petitioner for separation and aliment. These answers were lodged on 21st July, and on October 22nd, when the petition was heard, no such action had been raised. The Court granted the prayer of the petition.
This was a petition presented on July 11th 1898 by Mr Alexander Fotheringham Rintoul, craving the Court to find him entitled to the custody of his child, or otherwise to find him entitled to free access to him at all reasonable times.
The petitioner set forth that he was married to Margaret Johnston Wood or Rintoul on 9th February 1897, and that one child had been born of the marriage, viz., Richard Rintoul, the date of his birth being 29th December 1897. After the marriage the spouses lived together in Jedburgh for some time. “The spouses lived together happily enough after the marriage. There were occasional disagreements, but none in the least serious, and the petitioner always treated his wife with kindness and consideration. The petitioner believes and avers that such disagreements as occurred were due to the interference of his wife's relatives in their family affairs. The petitioner's wife twice deserted him, on the second occasion taking with her much of the household plenishing. The petitioner, notwithstanding, offered to take her back, and on her return, after an absence of nearly five months, he received her, and gave her everything she desired for herself, the child, and the house. She deserted the petitioner a third time on 10th June 1898, and went to live with her father John Wood, who resides at 2 Winchester Row, Kelso. She sent the child away two days before she deserted. There was absolutely no reason whatever for her desertion. The petitioner has several times urged her to return with the child, and his house is, as she well knows, open to her. She however, refuses to return or part with the child, and thus obstinately and maliciously persists in her desertion. The petitioner is anxious to have the custody of the child of the marriage, and he is in a position to maintain it and provide for it in every way.”
Answers were lodged on 21st July by Mrs Rintoul craving for the dismissal of the petition, in which she admitted that she had left the petitioner, and refused to return to him, but averred—“She cannot safely return to him, and is about to raise an action of separation and aliment against him. He is very much given to drink, and is very unkind to her when drunk or sober. He uses very bad language. He is quite unfit to be the custodier of the child of the marriage. The respondent is much attached to the child, and desires to have its custody. It is only six months old [at that date]. The petitioner has given the respondent nothing towards the support of herself and the child since she left him, although she has no separate means.”
Argued for the petitioner—The respondent had not stated any relevant ground to justify her desertion, and was accordingly not entitled to the custody of her child, the father being the proper custodian.
Argued for respondent—She intended to raise an action of separation and aliment, and had averred sufficient cruelty to justify her desertion. Considering the tender age of the child, who was not vet ten months' old and had not been weaned, the Court should not grant the petition, which in any view was premature, the mother being still the natural custodian of her child— Bloe v. Bloe, June 6, 1882, 9 R. 891; Beedie v. Beedie, March 20, 1889, 10 R. 648; Stevenson v. Stevenson, June 5, 1894, 21 R. (H. of L.) 96; MacKellar v. MacKellar May 19, 1898, 25 R. 883—Guardianship of Infants Act 1886 (49 and 50 Vict. c. 27), sec. 5.
Page: 22↓
Now, there is no doubt that the proper residence of the family is the father's house in Jedburgh. If, however, there were any averments in the answers for the wife of facts to justify her in leaving her husband, the case would have been different, but while there is a general averment that the petitioner was cruel to her, no specific instance of cruelty which would justify us sending the case to proof is averred. I therefore regard the answers as containing no relevant statement of grounds justifying the wife in leaving her husband, and as disclosing no reason why she should not return to him to-morrow bringing the child with her. I adhere to the opinion I expressed in MacKellar's case that the welfare of the child is the primary consideration for the Court, but I think that, young as the child is, it is better that it should be restored to the father, than that at the present stage we should give the custody to the mother without any reason set forth. She says, no doubt, that she is going to raise an action of separation against her husband, but these answers were lodged so long ago as 21st July, and no steps have been taken to bring the action into Court. On the facts as disclosed in the petition and answers I think no reason is given for the wife leaving her husband, and that we should grant the petition.
The respondent having moved for her expenses, the motion was opposed by the petitioner.
The Court granted the first alternative of the prayer of the petition, and found the respondent entitled to expenses.
Counsel for the Petitioner— A. S. D. Thomson. Agent — J. Murray Lawson, S.S.C.
Counsel for the Respondent— G. Watt. Agents— Winchester & Nicolson, S.S.C.
