The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-02-17
Supreme Court, Hawaiian Islands
In Banco.
JANUARY TERM, 1891.
MARIA GoMAz DA SILVA VS.. JOAQUIN
GoMAz DA SILVA.


GoMAz DA SILVA.
PETITION FOR SEPARATION.
ON APPEAL FROM MIR. JUSTICE M'oULLY.
JUDD, C. j., M'cULLY, BICKERToN AND
DOLE, J. ].
OPINION OF THE COURT BY BECKER
The petition in this case sets out
that the parties were married in
Honolulu in December, 1889. That
differences began to arise between
them about one week after the mar
riage. That the respondent since
the said marriage has excessively
and habitually i'll treated the petit
toner and generally abused her
and driven her from their house, and
in consequence thereof size has on
several occasions been forced to seek
shelter and protection from her
friends and relations. That the
petitioner has suffered much abuse
from the parents of the respondent
in his presence. That respondent
refuses and neglects to provide the
petitioner with the necessaries of
life and that she has no means to
employ counsel and to pay costs.
The petition prays that a decree
from bed and board be granted her,
and that she be allowed five dollars
per week alimony and seventy five
dollars for counsel fees, costs and
expenses of proceedings.
The answer of the respondent ad-
mits the marriage and denies all the
allegations in the petition, and al
leges that petitioner left respondent
and went to reside with her parents,
with her and their own free will and
consent. And further, that respon-
dent is without money, property or
means to support himself or his wife
or both; that he has been and is en-
gagged in learning trade, but with
out wages; that he and his wife
have heretofore been supported by
his parents, brothers and family,
and that he is unable otherwise to
provide for his wife and himself
that he is unable to pay any costs OF
Court or counsel fees, and prays that
the petition be dismissed.
This matter came on for hearing
before Mr.. Justice McCully in May,
June and July, 1890, and on August
I'd the petition was dismissed, and
the case now comes here on gen
eral appeal.
A separation from bed and board
may be decreed for the following
| causes:
al. For excessive and habitual i'll
treatment of the one party by the
other;
80. For habitual drunkenness OF
either party;
"3. For refusal or neglect of the
husband to provide his wife with the
necessaries of life" Comp. Laws
Sec. 1886, p. 40.
The petitioner relies on the first
and third causes, and as they are de-
MED by the respondent the burden
of proof is on her, 1.-THE petitioner).
"In a suit brought for separa-
ton, the defendant shall be permit
ted to prove in justification the i'll
conduct of the complainant, and on
establishing such defense to the
satisfaction of the Court, the suit
may be dismissed"
Comp. Laws, Sec. 1887, p. 440.
From the evidence we find at the
time of the marriage of these par
ties the petitioner was nearly eigh-
teen years of age and the respOn-
dent about twenty-one, and although
he had been employed up to Nov
ember, 1889, he at the time of the
marriage had no employment, or
means, and was dependent on his
family for support, and has been SO
ever since he being employed learn
ing a trade without wages. The
petitioner must have known these
circumstances at the time, and that
the only home he had to take her to
was that of his parents. 1t is fair to
presume that she knew this, for
there is no allegation or attempt to
show that she had been deceived by
the respondent; she had accepted
the situation with her eyes open, and
she was bound to submit to it, even
if it was not a pleasant one. She
should not show the independence
and resistance which the evidence
shows she did, for she and her hus-
band were both dependent on the
husbands family. 1t is unfortunate
that young people will place them
selves in such positions, but when
they do they must abide the results.
The. evidence as to the excessive
and habitual ill-treatment of the pc
titioner is almost entirely confined
to her own testimony; the other
testimony for the petitioner is very
slim and uncertain in its nature and
leaves the case in a very infirm way
for supporting the allegation of ex-
cessive and habitual i'll treatment.
The evidence for the respondent