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Colonial Cases

Sant v. Sant, 1874


Sant v. Sant

Judicial Committee of the Privy Council
22 April 1874
Source: The Times, 23 April, 1874

  Sir James Hannen took his seat on the Bench for the first time, with Sir J. Colville, Sir B. Peacock, Sir M. Smith, and Sir R. Collier, to hear an appeal of an extraordinary character from Malta.
  This was an appeal by Count Gio Francesco Sant, Baron [Casala?][Caria?], in a suit brought by his wife, the Countess Generosa, in the Civil Court of Malta (which afterwards went to the Appeal Court of the Island), for a personal separation, and the restitution of the property settled at her marriage as a dowry, called "dotal property," and that which had not been settled, "extra-dotal, non-dotal, or parapheral property." The main question was whether the Countess, by reason of the acts of the Count, was entitled to the personal separation, which had been granted to her by both Courts.
  Mr. Benjamin, Q.C., and Mr. Walter Phillimore appeared for the appellant; Dr. Deane, Q.C., (with whom was Mr. P. Gibbs), for the respondent.
  The parties were married in 1830, and lived together till 1869, upwards of 38 years. There were five children. In February, 1869, the appellant went to Gozo on business for a few days. The respondent, with her daughter Angelica, left the house and took a quantity of furniture, removing to Floriana, where she took a house. On the return of the Count efforts were made towards a reconciliation, but without success. By an Ordinance, No. 6, of 1867, it is required that a contentious suit between married persons shall not be instituted without a previous attempt at reconciliation being made under the authority of the Court. In October, 1869, the Countess filed her libel, wherein she stated "that the plaintiff was obliged for a long time to co-operate with submission and love, in order not to lose the affection, or, at least, a humane treatment on the part of her husband; virtue would have helped her in drinking off the bitter cup of her unfortunate nuptial lot, if even like a humble slave. And not like a beloved wife and mistress, she could in the bosom of her children remain confined to the conjugal home. That, however, her husband appeared to have forgotten every sentiment of duty and charity towards her, treated her like an abject slave, tyrannized imperiously, oppressed her with disdain, excited fear by anger and threats, offended and despised with impudence, subjected her indoors to privations in order to be prodigal out of doors with haughty ostentation, and by his cruelty and excesses, not to mention other acts for the present, rendered conjugal life unhappy, unfortunate, and intolerable.  That, in order to fly from tyrannical life, the voice of nature alone induced her to abandon her husband's house, to shut herself up elsewhere in the company of her daughter Angelica, who justly detested the paternal home, like her other daughter Susanna, who preferred to sacrifice herself in a cloister against her own will and vocation."
  On the trial numerous witnesses were called. The appellant was charged with being of a passionate temper, and acts were detailed, especially his giving his grown-up daughter, in November, 1868, two slaps on the face, for which he afterwards expressed his deep sorrow. The appellant produced evidence as to his kind and attentive behaviour to his wife. There was an allegation against the husband as to adultery with a woman whose name was given, but the Courts below did not proceed on that charge.
  The law governing the question was contained in the following words of Article 46 of the Ordinance of 1867, which stated that "either of the married persons may demand separation for excesses, cruelty, threats, or grievous injury by the other against the plaintiff or any one of his or her children." On the 4th of January, 1872, the Civil Court decided in favour of the wife, but rejected her claim not to be required to contribute any portion of her income.
  Both parties went to the Appeal Court, and in April, 1872, that Court pronounced for the personal separation, decided in favour of the appellant as to the contribution of income, and decided that the male children should remain under the care of the Count and the daughters under the care of the wife, with certain directions. The appeal now before their Lordships was to set aside the judgments for a personal separation, for which the Count alleged that there was no reason; but, on the other hand, the respondent submitted that she was entitled to a separation, the enjoyment of her property, and the care of her daughters.
  Mr. Benjamin and Mr. Phillimore were heard at considerable length in support of the appeal.
  Dr. Deane submitted that the Count had made out no case to induce their Lordships to set aside the personal separation pronounced for by both Courts and make the lady return to the house of her husband - he would not call it "protection," after the manner in which he had treated her.
  The case occupied the day, and on the rising of their Lordships the further hearing was adjourned.

Source: The Times, 25 April, 1874

  The Civil Court, and the Appeal Court, at Malta had decreed a personal separation in a suit by the Countess, and gave some directions as to the property of the parties and the issue of the marriage.  The Count appealed to Her Majesty in Council, and the principal question was whether sufficient had been shown in the case to induce their Lordships to uphold the decisions of the lower Courts.
.  .  .  
  A point in the case was that in November, 1868, - the Countess left in February, 1869 -the Count gave his eldest daughter two slaps in the face, which gave her a momentary convulsion, and he himself summoned the doctor and expressed his regret that the provocation had led him to commit the act. Numerous witnesses were examined on both sides, and the Countess complained of his language, and the manner he had treated her for a long period; that he was ostentatious with her in public, but in private treated her as badly as a slave, and before her children and servants applied disgusting epithets towards her. In the course of the discussion the case of "Kelly v. Kelly" was cited, and the question was whether there had been sufficient cruelty or excesses shown as to entitle the Countess to the relief she sought.
  In support of the wife's case, which was resumed today, it was contended that by the law of the island both Courts had decreed a personal separation. No reasons had been given in the judgment stating on what grounds the Judges had arrived at this conclusion. They had acted on the French system, on which their jurisprudence was founded. This was the first appeal in a Divorce Court, and if their Lordships thought that some regulations should be laid down as to future cases, the Court would, no doubt, give their reasons for their decisions.
  Mr. Benjamin, in reply, urged that in the absence of reasons, and from a consideration of the evidence, their Lordships would not, after a marriage of 40 years, sustain what in this country was a judicial separation.   There were no dates given, no personal violence alleged, and on the mere gossip of servants a man's wife was not justified in leaving him because he had a passionate temper. The Judges had not said on what grounds they decreed a separation.
  Sir Robert Collier suggested that as a Jury the Judges had given a general verdict.
  Mr. Benjamin ventured to affirm that as the Judges had to decide the law, such a verdict could not be sustained, and that no Court in this country would have given such a decision. The Judges did not say whether they believed the witnesses, or on what grounds they had decided the case, and he contended that the slaps in the face of the daughter in November, 1868, and the Countess not leaving until the following February, would in this country be deeme a condonation.
  On the conclusion of the argument, which on the present occasion occupied several hours, their Lordships consulted together.
  Sir John Hannen informed the Bar on the re-admission  of the public that their Lordships would take time to consider their verdict.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School