HIGH COURT, ACCRA
DATE: 5TH MARCH, 1962
BEFORE: ACOLATSE, J.
CASES REFERRED TO
[p.134] of [1962] 1 GLR 133
(1) Jamieson v. Jamieson [1952] A.C. 525; [1952] 1 All E.R. 875, H.L.
(2) Squire v. Squire [1949] P. 51; [1948] 2 All E.R. 51, C.A.
(3) Russell v. Russell [1897] A.C. 395; 66 J.P. 97; 13 T.L.R. 516, H.L.
(4) Brooking-Phillips v. Brooking-Phillips [1913] P. 80; 108 L.T. 397
(5) Russell v. Rusell [1895] P. 315, C.A.
NATURE OF PROCEEDINGS
PETITION for restitution of conjugal rights.
COUNSEL
E.N. Moore for petitioner-respondent.
Apatu-Plange for respondent-petitioner.
JUDGEMENT BY ACOLATSE, J.
In this case the husband, the petitioner herein, presented his petition filed on the 30th September, 1961 against the respondent, the wife herein, for restitution of conjugal rights. The petitioner desires that the respondent shall return to cohabit with him and is willing to render her conjugal rights and prays the court that the respondent do return to him and render him conjugal rights and any further relief that the court may deem just.
The wife in answer to the petition alleged cruelty and adultery against the husband in bar and prays for dissolution of her marriage with the husband on those grounds with other reliefs.
The petitioner replied to the wife’s answer and admitted that he committed the adultery with the co-respondent but says that by the respondent’s wilful refusal to return to cohabitation with him since April, 1960, she conducted to the said adultery by her own act of desertion.
The marriage between the petitioner and the respondent was celebrated in the Accra Municipal Council Offices at Accra on the 29th March, 1958. There are two issues under the said marriage, to wit, Isaac Nii Sai born on 3rd March 1959, and Jacob Soldier born in or around October, 1960. There was another issue by name Abraham Torgbor, born on the 29th June, 1957 when the parties were living as customary man and wife, prior to the celebration of the civil marriage.
The parties lived and cohabited together in the petitioner’s family house in Troas Street, Osu, until the respondent left the matrimonial home on the 15th April, 1960 to her mother’s house in Castle Road, Osu. The parties are Gas of Christiansborg. The respondent has since that date refused to cohabit with the petitioner and still refuses the petitioner his conjugal rights. Her refusal was based on the grounds of cruelty and followed by the adultery of her husband with the co-respondent.
The petitioner admitted striking his wife on the mouth on the 15th April, 1960, and alleged that it was the result of abusive words used by the respondent. The incident on the 15th April came about when the petitioner on this morning stepped on a dog’s excreta in the yard of his house. It appeared an old lady in the house was responsible for the yard. The petitioner became annoyed with the old lady and must have spoken harshly to her. The petitioner said the wife intervened and said to them, “Don’t mind him, he is a mad man and a dog just like the dog which put the excreta in the yard”. This annoyed him, he said, and he struck the wife a blow on her mouth.
The respondent was five months’ pregnant at the time of the assault. The result of this incident was that the wife left the matrimonial home and went to her mother and has been living there ever since in spite of some
[p.135] of [1962] 1 GLR 133
attempts on the part of petitioner to effect a reconciliation. In the early part of February or March, 1961, the petitioner began an illicit association with the co-respondent resulting in the birth of a child of which he is the father.
The wife had stayed away twice previously. She was away for about six weeks on the second occasion, the husband alleged without any previous quarrel and denied any previous cruelty. The wife alleged cruelty. The wife gave evidence on her own behalf in support of her answers to the petition and cross allegations against the husband. The co-respondent did not appear in the case. The wife alleged previous assaults by the husband upon her. I believe that there must have been some reason the wife leaving the matrimonial home on two other occasions and I infer that it must be the result of quarrels and beatings. The wife said he usually locked the door when he beat her to prevent her from getting help. The husband denied these allegations.
The wife alleged she had good cause for leaving her husband namely, on account of the cruelty he inflicted on her on 15th April, 1960, coupled with previous assaults. Her condition of pregnancy must have made her highly sensitive to violent blows on her mouth and ear. In this case I take the most humble and serious view that the petitioner’s act must be judged in relation to the surrounding circumstances, which include the physical or mental condition and the capacity for endurance or the peculiar susceptibility of the innocent spouse, the intention of the offending spouse, and the offender’s knowledge of the actual or probable effect of his conduct on the other’s health: see Jamieson v. Jamieson.1(1)
The petitioner’s conduct, cruel and reprehensible, was in my estimation dictated by a willful intention to injure the respondent, considering her pregnant condition during the material period by his physical violence upon her. See also Squire v. Squire2(2) where Tucker L.J. adopted these words of Shearman J. In Hadden v. Hadden,3(3) “I do not question he had no intention of being cruel but his intentional acts amounted to cruelty”. In Russell v. Russell4(4) the court decided that conduct which is expressly held not to be cruelty may, nevertheless be an answer to a suit for restitution of conjugal rights. As I understand the law, cruelty is now by itself a ground for divorce, whereas formerly it had to be coupled with adultery. Adultery is also a ground for divorce.
The legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mentally, or to give rise to a reasonable apprehension of such danger. It comprises the ill treatment complained of, and secondly the resultant danger of the apprehension thereof apart from the effect on the victim. I think the court could intervene on behalf of a wife in this case, even for not complying with her husband’s prohibition of visits to her married twin sister.
There is no positive and corroborative evidence of both sides of the story, but upon the consideration of the whole evidence and my observation of the demeanour of the petitioner and the respondent in the witness box, I was more inclined towards the credibility of the respondent than towards the petitioner.
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I must now look at the effects of the law involved in the issues in the petition and the cross allegations.
The authorities I have referred to are settled; the decisions of the courts declare that if a petitioner is proved to have committed adultery which has not been condoned or connived at he or she is deprived of the remedy of a decree for restitution. “Anyone bringing such a suit must, moreover, come to the court with clean hands. A decree for restitution of conjugal rights would not be made in favour of a petitioner who was guilty of adultery”: see Brooking-Phillips v. Brooking-Phillips per Bargrave Deane J.5(5)
I find no condonation or connivance on the wife’s part of the husband’s adultery. In Russell v. Russell6(6) Lopes, L.J. held that the court has felt itself empowered to refuse a decree if the result would be to “treat one of the spouses as deserting the other without reasonable cause, contrary to the real truth of the case”.
Upon the facts adduced in the defence for the respondent, I am not satisfied that a proper case has been made out by the petitioner to convince me that he is sincere in the presentation of this case for restitution. What about the other woman in the case, the co-respondent, with her illegitimate child?
There is no evidence adduced to show that the petitioner is willing to give up the other woman which convinces me that he sincerely desires the relief he seeks from the court.
Having considered carefully the case for the petitioner upon his petition I have come to the conclusion that the husband’s conduct was of the nature described by the wife in respect of the cruelty and adultery and as such it follows that the husband in such a case as this could not obtain the decree he seeks and I hold expressly that under the circumstances as exist in this case a decree for restitution of conjugal rights against the respondent cannot succeed and I accordingly refuse to make the decree as sought for in the petition.
Regarding the respondent’s cross allegations and prayers in her answers to the petition, I hold it beyond impropriety and decency to all the parties concerned in this case not to grant the respondent the decree of dissolution of her marriage on ground of the cruelty and adultery on the part of the petitioner with the co-respondent, since it would now become practically impossible for the spouses to live properly together. I therefore grant the respondent an order for decree nisi for dissolution of the marriage to be made absolute within three weeks from today’s date. The respondent is entitled to the custody of her children under the said marriage.
Costs for respondent allowed at thirty-five guineas inclusive.
DECISION
Decree for restitution refused.
Decree nisi for the respondent.
