Broad v. Broad

[647]

KERRIGAN, J.

This is an appeal from a judgment in a divorce proceeding requiring the defendant to pay plaintiff monthly a certain sum of money as maintenance in an action in which each of the parties sought a divorce from the other on the ground of extreme cruelty hut which was denied both parties.

The sole question presented hy the record is whether or not in the exercise of its sound discretion, under section 136 of the Civil Code, a court may, in an action wherein it finds that the wife is not entitled to a divorce, and she is living apart from her husband, make a decree that she be supported by him while such separation exists.

If a husband be guilty of conduct constituting any of the five grounds for divorce enumerated in section 92 of the Civil Code, his wife may institute an action for divorce, and in such action she may be awarded alimony; or, being entitled to a divorce, she may choose not to apply therefor, but may institute an action for permanent support (Civ. Code, sec. 137); or, in a divorce proceeding, although the divorce be denied, the court may provide for the maintenance by the husband of the wife and children of the marriage or any of them (Civ. Code, see. 136).

Under the language of these sections it appears that in a proceeding for divorce or maintenance the wife, if entitled to a divorce, may be awarded permanent alimony; and, on the other hand, even if a divorce be denied, still in the discretion of the trial court, if sound reason exist therefor, the husband may be compelled to provide for the support of his wife. Conditions may be such as not fo entitle the wife to apply for a divorce, and yet the circumstances surrounding her marital life might be such as to render it obviously unjust to deny her all relief. Such, we think, might be the case where the wife was compelled to leave her home because of torment or insult suffered from her husband’s relations living with them; or, if the husband had been guilty of all the grounds of divorce described in section 92 of the Civil Code except desertion, and upon a recriminatory plea in defense it was found that the wife had deserted him, and therefore could not be granted a divorce, the court could hardly send her back to live with her husband; and it would seem that under section 136 of the Civil Code, it might compel the husband to provide for her.