"Recrimination and condonation" are principles of the common law in reference to applications for divorce, so the provision of the statute, Revised Code, chapter 39, section 10, is merely in affirmance of the common law, and it can make no difference to the plaintiff whether this section be retained or omitted by the Act of 1871-'72, chapter 193, section 35. Indeed it would be more favorable to him to consider the section as retained, for the wording of that section is more narrow than the principle of the common law.
Upon this narrow wording his Honor fell into error in ruling "that while condonation was allowed to defeat an application for a divorce, the law did not allow condonation to be used in aid of an application for divorce." Such is not the common law, although it seems to conform to the wording of the statute, and the plaintiff would have a right to complain of this ruling, provided he had offered any evidence tending to show condonation of the matter proved by way of recrimination. But he offered no evidence and made no allegation to that effect; on the contrary, the evidence was by way of "recrimination" that in 1864 or 1865 he, night after night, frequented the house of a well known prostitute, so as to force his wife in a burst of indignation to go at night a distance of more than a mile and drive him from the embrace of this prostitute. So much as matter of "recrimination," what evidence is there of condonation? None at all. Did his poor wife forgive him? So far from it, after grumbling and remonstrating because of *Page 533 his evil practices, she is forced to leave him and go back to her mother's house and he goes out West.
Thus abandoned she (led into temptation by his example) falls into the like evil practices and he now makes that a ground for a divorce, and asks the Court to give him license to marry another wife, to be treated in the same way, and reduced to the same state of desperation.
There is, in the nature of things, a difference between adultery committed by a husband and adultery committed by his wife, the difference being in favor of the husband. There is likewise a difference between condonation by a husband and condonation by a wife, the difference being in favor of the wife. A husband who admits his wife to conjugal embraces, after he knows that she has committed adultery, is looked on as a disgraced man — "a cuckold, a beast with horns." A wife who admits her husband to conjugal embraces, after she knows that he has committed adultery, is pitied, rather than blamed, and is supposed to yield to circumstances, which are beyond her control, where she has no separate estate, and because of her dependent condition, submits to this personal indignity, and tries, in patience, to do the best in her power to hide her shame, with the hope of reclaiming her husband. In our case the wife, so far from condonation, after standing the conduct of her husband as long as she could, refused longer to "hide her shame," and with strong hand drove her husband from the bed of his mistress, soon afterwards left him and went back to her mother, so condonation is out of the question, and we can only regret that she afterwards committed the same sin.
Our conclusion is, that both husband and wife are two miserable wretches, and the case is too disgusting to be longer entertained by the Court.
There is no error in the order to dismiss the case.
PER CURIAM. Judgment affirmed. *Page 534