Roy v. Roy , 1 R.I. Dec. 92 ( 1925 )

TANNER, P. J.

This is a petition for separation from bed and board until the parties be reconciled, upon the ground of five years desertion.

’ We find that the separation was commenced with the consent of the petitioner and upon her direct request. We are of the opinion that the respondent has been and is still justly apprehensive of bodily harm from the petitioner and is not, therefore, under obligation to become reconciled with her.

The petitioner’s counsel argues that the respondent is debarred from showing the facts constituting the reasons for the separation because he has tried to obtain a divorce against her on two occasions for cruelty and gross misbehavior. We are of the opinion, however, that he is by no means debarred from proving that the desertion was no't wilful on his part' in the first, instance because of her consent and request, although some of the facts attending that occasion were passed upon in one of his divorce cases upon the question of cruelty. They are admitted in the present case simply upon the question of whether or not the desertion was wilful.

It must be reasonably safe for a spouse to return to cohabitation to charge such spouse with desertion for not so doing.

McVickar vs. McVickar, 46 N. J. Eq. 490;

Gerolman vs. Gerolman, 54 A. 166.

The petition is denied and dismissed.