HIGH COURT, KUMASI
DATE: 1 MAY 1962
BEFORE: APALOO, J.
NATURE OF PROCEEDINGS
PETITION for divorce, custody and maintenance.
COUNSEL
B. K. Glymin for the petitioner.
Respondent in person.
JUDGMENT OF APALOO, J
The parties in this case were married under the provisions of the Marriage Ordinance1(1) at the office of the Registrar of Marriages, Kumasi, on the 19th December, 1951. It seems, however, that prior to the solemnisation of the marriage they had cohabited together. This is shown by the fact that two of the children of the marriage, namely Phyllis and Albert, were born before the celebration of the marriage and were legitimated per subsequens matrimonium. Phylis was born on the 1st July, 1949, and Albert on the 14th August, 1951. After the marriage, a third child Susan Sylvia was born to the petitioner on the 19th August, 1953.
There is nothing to suggest that before 1953 the marriage was other than happy. In that year, however, the respondent who is a civil servant, was transferred to Agona Swedru. The petitioner was not able to go with the respondent. She is herself a nurse employed at the Central Hospital, Kumasi. I am satisfied that it was mutually agreed that she should remain at Kumasi with the children, and visit the respondent from time to time. Separation soon brought unhappy differences to such an extent that on the 20th May, 1958, the parties entered into a deed of separation. The respondent was transferred from place to place and in 1959 found himself at Kukurantumi. There he appears to have formed an amorous attachment for a school teacher by name Miss Comfort Aidoo. Adultery soon took place and the unchallenged evidence is that Comfort bore the respondent three children. The petitioner grounds her petition on this admitted adultery. Although he did not give evidence, the respondent averred in his answer that the petitioner deliberately refused to go with him to his various stations and implied therefore that the petitioner was in part to blame for his association with Miss Aidoo as she has by her neglect of
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him conduced to the adultery. I do not find any evidence at all to substantiate what in this branch of the law is technically known as “conduct conducing”. In my opinion, the separation was for both of them a painful necessity, and was brought about by circumstances beyond their control. I accept the petitioner’s unchallenged evidence that the respondent agreed that, she should continue to work. This is reasonable arrangement as the petitioner could no doubt earn a little sum with which to help the respondent. The respondent succumbed to temptation in circumstances in which many persons in his position might well do the same, but I cannot see that he should lay this at the door of the petitioner. I am satisfied the petitioner did not connive at or condone the respondent’s adultery. In the circumstances, she is entitled to a decree and I will pronounce one.
The petitioner also seeks an order for the custody of the children. All the children are now in boarding schools in various places and in so far as they can be said to be under the custody of either of their parents it is that of their mother, the petitioner. She seems to have been spending almost all her limited salary on her children with rather little assistance from the respondent. In ordering custody, I conceive that I must bear in mind the welfare of the children and consider where their interest will be best served. I have seen and heard the petitioner. She struck me as a sincere and devoted mother and is in reasonably good employment. The respondent on the other hand seems to be burdened with other children from irregular unions. I think the interest of the children will be best served by their remaining with their mother as at present. I propose therefore to grant custody of the three children of the marriage to the petitioner.
The petitioner also asks for an order for the maintenance of the children of the marriage. The respondent does not seem to have shirked his responsibility in this respect and appears to have provided maintenance of £G8 per month regularly for the children. Judging from the aggregate sum which the petitioner spends on the children at various boarding schools, this is a rather insignificant contribution. But the respondent does not seem to be in affluent circumstances. He is in receipt of salary at the rate of £G625 per annum. After the deductions with which one is familiar from salaries of civil servants, he receives a net income of £G49 3s, 2d. The respondent filed a statement in this court on the 16th January, 1962 in which he set out with great precision particulars of his disbursements. The petitioner has not sought to say that those particulars represent anything but the true financial position of the respondent. It shows that the respondent has after his expenses only £G8 left for his own maintenance. True, a great deal of his salary goes to maintaining children begotten with other women and in a sense his financial difficulty is of his own making but that is no reason why I should enhance his difficulties by raising the sum which he provides for the petitioner.
Although inadequate, I think in the respondent’s present circumstances, he should continue to provide £G8 per month as heretofore for the maintenance of the three children of the marriage. And this should be so until the respondent’s financial position improves in which case liberty is hereby reserved to the petitioner to apply for variation of this sum.
In the result, I pronounce decree nisi in favour of the petitioner and award her custody of the children. The respondent will also pay to the
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petitioner for the maintenance of the said children the sum of £G8 per month until a further order.
The decree nisi may be made absolute in three weeks. The respondent is ordered to pay the costs of this petition assessed at 25 guineas.
DECISION
Petition granted.
