dissenting.
I respectfully dissent. In my opinion a trial judge, even in the hearing of an uncontested divorce case, has discretion to dismiss the action when the proof shows that the complaining party admittedly has been guilty of adultery.
I am not in agreement with the majority opinion to the effect that the substantive law governing divorce is wholly statutory, and there are no principles of equity involved.
In the old case of Cameron v. Cameron, 42 Tenn. 375 (1865), the Court approved the dismissal of an uncontested divorce action brought by a husband against his wife on charges of adultery. In that case the guilt of the wife was clearly established, but the action was dismissed because the proof failed “to show anything in relation to the complainant’s character for virtue and chastity since the separation.”
While the rules of pleading and practice have undergone many changes since the decision in that case, the following statement of equitable principles, in my opinion, has not changed:
“. . . the principles of the law, justifying the dissolution of the bonds of matrimony, require the party making the application, to come into court with clean hands." 42 Tenn. at 377. (Emphasis supplied.)
The defense of condonation is statutory in Tennessee only in adultery cases, T.C.A. § 36-811. It had its origin, however, in canon law and is applied in this state, apart from statute, to other charges, such as cruelty. See 24 Am.Jur.2d, Divorce and Separation § 202; Schwalb v. Schwalb, 39 Tenn.App. 306, 331, 282 S.W.2d 661 (1955).1
The defense of insanity is nowhere found in our divorce code, but it is well settled that persons who are non compos are not held responsible for their actions so as to entitle their spouses to divorce for conduct committed during periods of mental incapacity. See Quinn v. Quinn, 169 Tenn. 173, 83 S.W.2d 269 (1935); Knight v. Knight, 62 Tenn.App. 70, 75-76, 458 S.W.2d 803 (1970).2
Accordingly, in my view it is too restrictive to state that the entire subject of divorce is statutory and that no principles outside the statutes have application.
I do not disagree with the analysis of the specific statutes contained in the majority opinion, but I believe that the principle of recrimination, which itself is based upon that of unclean hands, has been extended by our cases beyond the literal wording of these statutes.
In the case of Berry v. Berry, 191 Tenn. 310, 232 S.W.2d 352 (1950), this Court af*937firmed the dismissal of actions brought both by the wife and by the husband, where each had established separate and independent grounds for divorce. The testimony showed that the wife had either been guilty of adultery or, at a minimum, that the husband’s charges thereof were not frivolous and insubstantial. On the other hand the testimony showed that the husband had also been guilty of cruel and inhuman treatment. The Court upheld the action of the trial court in dismissing both actions. Similarly, in the case of Brewies v. Brewies, 27 Tenn.App. 68, 178 S.W.2d 84 (1943), the Court of Appeals reversed a judgment of the trial court in which a divorce had been awarded to each of the parties. In that case the Court followed what it considered to be the general rule, to the effect that where both parties have been guilty of statutory grounds for divorce, then neither is entitled to relief. This holding was discussed and the entire subject fully treated in the case of Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968). There adultery of the husband was held to defeat his claim for divorce because of his wife’s cruelty.
While it may be that the majority opinion leaves a trial judge some discretion as to whether he will or will not disallow a divorce when the complaining party has been shown to be guilty of statutory grounds, it nevertheless reverses his exercise of that discretion in the present case, and I cannot agree to that decision. I can hardly think of a more indiscreet or bizarre disregard for the divorce court than for a woman to come to that court and seek to dissolve her marriage, bringing with her a child which she had conceived as a result of an illicit relationship with another man. If a divorce court does not have discretion to dismiss an action upon that sort of showing, then indeed I believe that it has almost no discretion and that the judge must grant a divorce to whichever of two guilty parties first files an action or appears before him.
The General Assembly of this state has recently adopted a limited “no-fault” statute under which a party may receive a divorce when it is uncontested that irreconcilable differences have occurred, and where the parties have agreed upon a disposition of their property or custody of their children.3 Most of the older grounds for divorce contained in the Tennessee statutes, however, are based upon a fault principle, wisely or unwisely. Whether the principle of recrimination is or is not socially desirable or practically sound, it is, in my opinion, deeply embedded in the jurisprudence of this state and rests upon equitable, and not purely statutory, foundations.
In the same general encyclopedia quoted in the majority opinion4 are found references to the views of the various states on the subject of recrimination. In some states, both parties to a divorce may be granted relief when there is a showing that each has committed statutory grounds. This alternative has been expressly rejected in Tennessee and, in my opinion, properly so. Other states have adopted the principle of “comparative rectitude” under which the trial judge weighs the relative fault of the parties and compares the morality of the different statutory grounds of divorce, allowing relief to the least guilty party, or the one deemed to have committed the less socially desirable acts. This principle, also, has been rejected in this state, as in the majority of states, and involves the court in moral and ethical considerations of statutory grounds which have been authorized by the legislature.
There is no ready or facile solution to the matter of mutual fault in divorce cases, absent the adoption of a general no-fault principle. While it may be well to leave the matter to the discretion of the trial judge, I think that such discretion was properly exercised in the present case and I would affirm the judgments of the courts below.
I am authorized to state that Mr. Chief Justice COOPER joins in this opinion.
. Other equitable principles, such as laches, are applied to divorce actions in many states. See Clark, Domestic Relations 371-372 (1969); Annot. 4 A.L.R.2d 1321 (1949).
. As to circumstances under which a person adjudged insane may still be able to obtain a valid divorce, see Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71 (1955), cert. denied, 350 U.S. 842, 76 S.Ct. 83, 100 L.Ed. 751 (1955).
. Tenn.Pub. Acts 1977, ch. 107.
. 24 Am.Jur.2d, Divorce and Separation §§ 226 et seq.