The theory of complainant's bill, as a basis for equitable relief, is stated in its concluding paragraph as follows:
"Under the facts herein alleged, the complainant * * * charges that there is a voluntary separation between herself and the defendant within the meaning of section 4503 of the Code of Alabama of 1907; but, if she be mistaken in this, still the conduct of the defendant towards her justified her in refusing to longer live with him, and was equivalent to an abandonment of her by the defendant, and that it is to the best interests of the said child, William Little, that she be decreed the custody of said child."
It cannot be seriously contended that the separation shown by the bill is with the actual consent of the husband. The real insistence is that his general course of conduct was such as to show a constructive consent to complainant's withdrawal from his home and from his society, and so to establish the statutory jurisdiction of the court to dispose of the custody of the child upon the *Page 297 basis merely of an equitable discretion. The statute in question is as follows:
"In all cases of voluntary separation of husband and wife, the court of chancery has power, on the petition of either party, * * * to permit either the father or mother to have the custody and control of the children, and to superintend and direct their education, having regard to the prudence, ability, and fitness of the parents, and the age and sex of the children." Code 1907, § 4503.
"The statute is in terms limited to a 'voluntary' separation; but we do not suppose it was contemplated each party should, in words, express assent to it. The assent may be implied, as it is often implied in reference to contracts and agreements. A husband may pursue towards the wife, or the wife towards the husband, a course of conduct compelling a separation; and it would be idle to say such was not the result anticipated or intended." Anonymous, 55 Ala. 428, 431.
And in order to justify the withdrawal by one spouse from the home and society of the other, it is settled in this state, in accord with the weight of reason and authority, that the provoking cause or causes need not be such as would entitle the injured party to a divorce. Spafford v. Spafford, 199 Ala. 300,74 So. 354, L.R.A. 1917D, 773.
But courts will not justify such withdrawals except for the gravest and most compelling reasons — reasons which involve the fundamental happiness or self-respect of the withdrawing spouse, and the vicious and unjustifiable conduct of the other. And the provoking misconduct should not be occasional or transient only, but continuous or persistent, and apparently irremediable. Bryan v. Bryan, 34 Ala. 516, 519-522; Anonymous,55 Ala. 428; Brown v. Brown, 178 Ala. 121, 59 So. 48; Spafford v. Spafford, 199 Ala. 300, 74 So. 358, L.R.A. 1917D, 773.
Giving their full weight to the facts alleged in the instant bill, and to the conditions complained of, we think they fall far short of justifying complainant's abandonment of respondent. There is nothing to show that respondent has not supplied her with necessaries and comforts to the extent of his ability. His failure to take her to places of amusement may well have been due to financial stringency, and therefore without culpability; but in any case, it was not a matter of grave concern. It may be conceded that respondent's attitude of hostility to complainant's sewing in order to earn some independent income was, under the circumstances, unreasonable; but it is easily understandable, venial in its character, and could not in reason involve the happiness or self-respect of complainant.
Nor did complainant herself deem a separation necessary until, having determined to bear no more children (on account, as alleged, of their financial inability to properly care for them), she informed her husband of her withdrawal from further marital intercourse, and he insisted nevertheless upon her submission. Indeed, the bill is explicit in its averment that, following his forcible insistence, she left his home, not on account of previous disagreements, but merely "to avoid further instances of that character."
"Sexual intercourse between husband and wife is recognized as one of the chief aims and controlling objects of marriage. This was regarded from an early date such an essential element of the marriage relation that the impotency of either spouse constituted ground for annulment of the marriage. It is asserted that a husband may enforce sexual connection, and that in the exercise of his marital right he cannot be guilty of the offense of rape." 13 Rawle C. L. pp. 987, 988, § 6.
The right is, of course, not absolute, but is qualified by considerations of health and decency. Complainant's summary denial of the right cannot, upon the ground averred, be excused, much less justified, and she was by her own admission guilty of a grave breach of marital duty.
In explanation of her second and final withdrawal from respondent's home and society, it is averred merely that —
"He has declined either to furnish her with the means to pay for dental services, or to allow her to sew in payment for such services, and has by a series of small annoyances made it impossible for complainant to continue to live with him as his wife."
It does not appear that the dental services referred to were necessary, nor that the amount expected to be paid therefor was reasonable, nor within the means or ability of the husband to pay. As for "petty annoyances," it may be observed that very few, if any, marriages are free from them; and while parties may determine for themselves how much annoyance they are willing to endure, their withdrawal from the relation upon insufficient grounds, as courts may adjudge them, will or may work a forfeiture of their marital rights.
We conclude that the bill does not show a voluntary separation between complainant and respondent, either actual or constructive, and that the equity of the bill cannot be rested upon section 4503 of the Code. Bryan v. Bryan, 34 Ala. 516; Anonymous, 55 Ala. 428, 430.
The equity of the bill, if any it has, must therefore be grounded upon the original jurisdiction of courts of chancery over infants, which it may exercise for their protection and benefit whenever conditions require it.
In Bryan v. Bryan, supra, it was said:
"As the equity of this proceeding cannot be maintained under our statute, the question arises, Can it be maintained under the principles which governed the jurisdiction of the chancery court over minor children at common law? *Page 298 The chancery court has jurisdiction, independent of the statute, over the custody of infant children. Story's Eq. Jur. § 1341. But in the exercise of that jurisdiction, respect is always paid to the prior common-law right of the father to the custody and control of his minor children. Ex parte Boaz,31 Ala. 425. This prior right of the father will be controlled and made subordinate to the interests of the children, but it requires a strong case to induce the court to interfere with that right."
In that case, concluding upon the facts before it, the court further said:
"Taking into consideration the fact that the defendant is not shown to be of such character, or to have such habits as would necessarily contaminate the children, or render them unsafe in his custody, and the strong favor with which the law regards the father's prior right to the custody of his children, and the unauthorized state of separation from her husband in which the petitioner has placed herself, and her want of any peculiar fitness for the custody and care of the children, and also that the children have passed the age when the mother's care, though valuable and desirable, is not indispensable, we deem it our duty to withhold any active interference in behalf of the wife's exclusive custody and control of the children."
The bill in this case does not charge, and is indeed bare of any suggestion, that the respondent is not qualified mentally, physically, morally, or financially for the care and nurture of the son, who is now more that 4 years of age, and not peculiarly dependent upon the attentions of a mother. And it does show that the complainant is living in a state of unauthorized and unwarranted separation from the husband and son. It therefore fails to present a prima facie case for the interposition and interference of a court of chancery, and is plainly subject to demurrer for want of equity, so far as the custody of the child is concerned.
Nor is complainant entitled, under the circumstances shown, to separate maintenance for herself.
"The common-law duty of the husband to support the wife is not absolute. He is bound to support her at the common home, and not under another's roof, unless his own improper conduct has forced her to seek shelter elsewhere. Hence, if she abandons her home without cause, the right to support from her husband at once ceases." Brindley v. Brindley, 121 Ala. 429,432, 25 So. 751, 752.
We think the demurrer was properly sustained, and the decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.