Walters v Walters [1911] ZATPD 9 (23 February 1911)

Husband and wife - Divorce - Bar - Malicious desertion - Cohabitation refused on account of previous stuprum

Six months prior to· her marriage the plaintiff had intercourse with, and became pregnant by, a certain man. Two months before her marriage she cohabitated with the defendant, who married her without knowledge of her previous stuprum and resulting pregnancy. After the marriage she gave birth to a child, and the defendant thereupon refused to live with her. The plaintiff then sued for restitution of conjugal rights or divorce, and the defendant did not enter appearance.

Held, that the plaintiff's conduct had furnished the defendant with sufficient cause for his refusal to cohabit with her; and that, consequently, his desertion was not malicious, and, notwithstanding his default, the plaintiff's claim should be refused.