Division: IN THE HIGH COURT, ACCRA
Date: 23 DECEMBER, 1964
Before: ARCHER J
JUDGMENT OF ARCHER J
The petitioner seeks the dissolution of his marriage on the ground of the respondent’s cruelty and desertion. The parties were married in 1929 and all the children of the marriage have attained their majority.
The petitioner’s case is that since 1956 the respondent has treated him with cruelty. In 1956 the
respondent was admitted into hospital and on her discharge the petitioner consented that she could stay in her family house in Accra up to the end of May. The respondent overstayed and did not return to the matrimonial home until 1961 after various attempts had been made by the petitioner and members of his family to get her to return. From March 1961 when she returned to the matrimonial home, she grumbled; she did not cook the menu chosen by the petitioner and she deprived him of her companionship. No visitors would call on them because their friends were aware of the matrimonial troubles. In early 1962, the respondent attacked him in the bathroom with a foot-rest and told him he was wanted in the grave-yard because he was not wanted among the living but that he should join the dead. On one occasion, he noticed that the respondent had arranged to accommodate her own relative in one of his children’s room. When he protested to the respondent she thereupon raised a stool above his head and said “I will kill you.” In the same year 1962, while they were living together in the matrimonial home, the respondent used to refer to his skin disease and exclaim, “The Lord has worked his vengeance.” She also threatened him with detention so that she could have full control of the matrimonial home. In July 1962, he could no longer bear the nagging and the condemnation and so he called the respondent and the children of the marriage and informed them he was leaving to reside in his father’s house. He then left and has since lived outside the matrimonial home. In May 1963, when he visited the matrimonial home with a garden boy to prepare leaves for manure, there was a scene in which the respondent attempted to hit him with a fourfoot pole. The only witness brought by the petitioner is one Billa Busanga, who stated in evidence that he was the garden boy who accompanied the petitioner to the matrimonial home and that he saw the respondent attempt to hit the petitioner with a long, stick. Moreover the petitioner stated that whenever he visited the matrimonial home, the respondent sang hymns associated with or usually chosen for burial and funeral services. These hymns were meant for his early departure from this world. One of the main reasons why the petitioner left the matrimonial home was that the respondent had objected to bringing another maid servant to the matrimonial home in addition to the respondent’s own niece who was residing with the respondent. This niece had openly fought him and he insisted that the niece should leave the matrimonial home.
The respondent in her evidence has denied that she has been cruel to the petitioner and that she has driven the petitioner from the matrimonial home. She brought in the Reverend Mr. Odjidja, the Moderator of the Presbyterian Church to give evidence on her behalf. Reverend Mr. Odjidja who is not a stranger to these matrimonial differences was emphatic that in his opinion he thought the differences were not insoluble. The impression he gave me was that the petitioner refused to eat in the house or stay in the matrimonial home so long as the respondent’s niece remained there. A miscellany of allegations have been made by the respondent against the petitioner but for my purposes it is not necessary for me to make any findings on those allegations as she has not cross petitioned.
I have considered the whole married life of the couple and I am satisfied that the acts complained of by the petitioner, if true at all, cannot constitute legal cruelty. There is no evidence that the respondent’s presence in the matrimonial home constitutes imminent danger to his health nor has his health deteriorated through the condemnation and verbal relegation to the graveyard. To constitute legal cruelty, the conduct of the other party must be grave and weighty. There are certain incidents in marriage which can accurately be described as “the changes and chances of this mortal life” and it is no good pleading usual incidents which are only the ordinary wear and tear of married life.
The petitioner, who appears to me to be a very respectable retired Minister of the Presbyterian Church, should be the last person to fear death as throughout his ministerial career he might have exhorted the members of his congregation to embrace death with courage and faith as it is their creator’s wish. I find it therefore impossible to believe that the singing of burial hymns by the respondent should disturb his mental and spiritual equilibrium. From 1929 up to 1956, the parties lived happily together notwithstanding the human frailties of either party and I do not see how the marriage cannot continue to subsist notwithstanding these earthly imperfections. The petitioner may think that the acts he has complained of are serious and amount to cruelty but unfortunately the cruelty which the ordinary man imagines or estimates as such is far below the standard of legal cruelty known in matrimonial law. I therefore find that the charge of cruelty has not been proved and therefore any desertion which might have taken place between 1956 and 1961 cannot be revived. I also find that the petitioner voluntarily left the matrimonial home on account of the presence of the respondent’s niece whose belligerence in my opinion is not formidable. The petitioner has other remedies to eject this niece from the house if she still resides there. My decision may cause the petitioner despair and unhappiness but I wish to remind him as a servant of God on the eve of Christmas of the famous Christmas message: “Peace on earth and goodwill towards men.” What this marriage requires is goodwill from both parties so that the petitioner can once again re-unite with the respondent and enjoy the companionship of their grown-up children. The petition is therefore dismissed. Costs of 50 guineas to respondent.
DECISION
Petition denied.
T. G. K.
