The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-02-12
Supreme Court, Hawaiian Islands.
In Banco.
JANUARY TERM. 1891.

oaNDAhI IEhM. lCOl.
MARIA GoMAz DA SILVA VS.. JOAQUIN |
GoMAz DA SILVA.
PETITION FOR SEPARATION.
JUDD, C. j., M'CULLY, BICKERToN AND
DOLE, j. J.
OPINION OF THE COURT BY BECKER
TON. J.
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 decree
from bed and board be granted her,
and that she be allowed five dollars
per week alimony and seventy-fve
dollars for counsel fees, costs and
expenses of proceedings.
The answer of the respondent adj
mits the marriage and denies all the
allegations in the petition, and d.
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 a gen
eral appeal.
A separation from bed and board
may be decreed for the following
causes:
81. For excessive and habitual i'll
treatment of the one party by the
other;
%. 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. 44O.
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, (the petitioner).
"In suit brought for separa-
ton, the defendant shall be permit
ted to prove in justification the ill
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. 40.
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, o,
means, and was dependent on his
family for support, and has been sc
ever since he being employed learn
ing a trade without wages. The
petitioner must have known these
circumstances at the time, and thai
the only home he had to take her te
was that of his parents. 1T is fair te
presume that she knew this, fol
there is no allegation or attempt tt
show that she had been deceived by
the respondent; she had accepted
the situation with her eyes open, ant
she was bound to submit to it, ever
if it was not a pleasant one. Sh'
{ should not show the independence
and resistance which the evidence
shows she did, for she and her hus
band were both dependent on thu
husbands family. It is unfortunat,
, that young people will place them
selves in such positions, but whel
they do they must abide the results
/ The evidence as to the excessiv,
and habitual ill-treatment of the pc
titioner is almost entirely confined
to her own testimony; the othe
testimony for the petitioner is yer.
slim and uncertain in its nature ant
leaves the case in very infirm wa,
, for supporting the allegation of ez
cessive and habitual i'll treatment.
: The evidence for the responder
rebuts very strongly the petitioner
case, and shows considerable ill-con
duct on her part, and substantiate
the respondents answer as to hi
, want of means and inability to sup
port his wife; and that he is depend
emit on his family for the support o
himself and wife, also, that he is un
l able to comply with the order il
, regard to costs and counsel fees
The husband should endeavor a
soon as possible to support his wife
} and the wife should do all in he
power to assist him.