HIGH COURT, ACCRA
Date: 20 FEBRUARY 1974
ABBAN J
CASES REFERRED TO
(1) W. v. W. [1926] P. 111; 95 L.J.P. 56; 135 L.T. 383; 42 T.L.R. 470.
(2) Thain v. Taylor [1926] Ch. 676, C.A.
(3) P. v. McK (formerly P.), The Times, 28 June 1973.
(4) Re Ullee: Nawab Nazim of Bengal’s Infants (1885) 54 L.T. 286; 2 T.L.R. 8, C.A.
(5) In re McGrath [1893] 1 Ch. 143; 9 T.L.R. 65; 62 L.J.Ch. 208; 67 L.T. 636; 41 W.R. 97; 37 S.J. 45, C.A.
(6) In re W.; W. v. M. [1907] 2 Ch. 557; 77 L.J.Ch. 147, C.A. 06; 14 Jur. 639.
(8) Shelley v. Westbrooke (1817) Jac. 266.
(9) In re Scanlan (Infants) (1888) 40 Ch.D. 200; 57 L.J.Ch. 718; 59 L.T. 599; 36 W.R. 842; 4 T.L.R. 611.
(10) Ward v. Laverty [1925] A.C. 101; 94 L.J.P.C. 17; 131 L.T. 614; 40 T.L.R. 600; 68 S.J. 629, H.L.
NATURE OF PROCEEDINGS
APPLICATION by an originating summons by a wife who prayed for custody of her infant child; maintenance for the support, care and education of the infant; and maintenance for her own support. The facts are sufficiency set out in the judgment.
COUNSEL
J. Reindorf for the plaintiff.
K. R. A. Korsah for the defendants.
JUDGMENT OF ABBAN J
The plaintiff, in her originating summons, prayed specifically for the following reliefs, namely:
(a) that the court may grant the plaintiff the custody of an infant, Edward Kofi Beckley;
(b) that the court may grant reasonable maintenance for the support, care and education of the said infant, and
(c) that the first defendant, who is the plaintiff s husband, be ordered to pay to the plaintiff reasonable maintenance for her support.
It should be noted that the summons was issued by a wife, as plaintiff, against her husband who is the first defendant. The husband’s mother is
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the second defendant. For convenience the plaintiff may hereinafter be referred to either as the wife or as the mother, the first defendant as the husband or as the father, and the second defendant as the grandmother.
The wife is a Russian citizen and the husband is a Ghanaian. They were married on 9 July 1969, in the City of Kalinin in the Soviet Union where the husband was a medical student. The couple came to Ghana after the husband’s course, and they set up their matrimonial home in Accra where they happily cohabitated. The husband was employed by the Ministry of Health and was stationed at Korle Bu Teaching Hospital as a medical officer. On 26 February 1971, the wife gave birth to the first and only child of the marriage and the child was named Edward. The husband was later transferred to the Central Hospital, Koforidua, and the family naturally moved from Accra to Koforidua. At Koforidua, differences arose between the parties and, in consequence thereof, on or about 21 September 1973, they separated.
The wife attributed the cause of the separation to the fault of the husband. The wife went to Russia to visit her parents. She spent about six months there. When she came back to Ghana, she noticed considerable change in the attitude of the husband towards the marriage. She said the husband had always been interested in Christianity and in juju at the same time. But on her return from Russia, she discovered that the juju practices were occupying him to the exclusion of almost everything. The result was that the husband refused to have regular sexual intercourse with the wife on the pretext “that relations with women were forbidden by his juju for some unspecified length of time while he was carrying out certain rites.”
The wife, in the circumstances, had to sleep in a separate bedroom and for some four months before the actual separation, sexual intercourse between them had completely ceased. Apart from refusing to have sexual intercourse with the wife, he also refused to eat food cooked by the wife and so they had their meals separately.
It is, therefore obvious that by 21 September 1973, happiness in the marriage had given way to bitterness. The wife stated that on the said 21 September the husband abducted Edward from the matrimonial home and sent him to his mother, the second defendant, at house No. C.379/10, Kotobabi, Accra. To the wife, the husband resorted to the abduction in order to make it easier for him to throw her out of the matrimonial home. The alleged abduction took place at a time when the wife was out shopping. On her return from shopping, the wife found the matrimonial home locked up and “from all appearances the house was completely empty of human beings.” For the whole day, she could not get admission into the house and she had to put up for the night with a Russian girl friend who was living in the neighbourhood with her Ghanaian husband.
On the following day, 22 September, the wife came to Accra. She went to the house of her mother-in-law, the second defendant, and it was there that the wife found Edward. The husband came and met the wife in his mother’s house and, without justifiable cause, the husband ordered the
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wife to leave that house as he no longer wanted to have anything to do with her. The husband on that day would have beaten her up, if it had not been for the timely intervention of the husband’s relatives who were then in the house. All attempts made by the wife to reason with the husband failed; and in a state of despair and for fear of her life, she sought refuge in the house of the husband’s friend. The said friend, also a medical officer, is married to a Russian woman and the couple live at Korle Bu. Since that day the wife has been “living with friends in various places.” She, however, stated in her last affidavit that she has now got “habitation” of her own in Accra, and she therefore wants cu have taken place between the wife and the husband in their matrimonial home at Koforidua. Again, it was not the grandmother who collected the child from the matrimonial home. The child was sent to the grandmother by the father and the second defendant, as a grandmother, readily received the child probably without knowing the legal implications.
In my opinion, the second defendant is looking after the child merely as the agent of the father and she cannot pretend to have a better right to the custody of the child than the mother, the plaintiff herein. The grandmother is therefore a nominal defendant in this suit, and the issue of the custody of Edward is really between the wife and the husband.
The husband by his various affidavits, filed in the proceedings, denied all the imputations made against him by the wife. Of course, the husband admitted that the marriage has broken down and he and the wife are now living apart even though he alleged that the said separation was due to the conduct of the wife. He also admitted removing the child from the matrimonial home to the grandmother, but he contended that he did so in order to prevent the wife from taking the life of the child.
Those allegations against the wife are found in paragraphs (4) to (7) of the husband’s affidavit which was filed on 19 December 1973. I will set them out in extenso:
“(4) That plaintiff had earlier been threatening to take away the child’s life either by drowning or strangling him in order to have freedom of movement with other men.
(5) That on or about 21 September 1973, I returned from work at the hospital to my house at Koforidua and found the child aged about two and half years alone in the bath full of water while the plaintiff was nowhere to be found.
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(6) That as a result and considering the plaintiff’s earlier attitude and threats to the child as herein before mentioned, I rushed my son Edward to my mother, the second defendant, in Accra for safety and better maternal care as the plaintiff has all along exhibited continuous cruelty, neglect and poor maternal care towards him. It was the plaintiff ‘s habit of leaving the house for two or three consecutive days and I had, at times, to take young Edward along with me to work or leave him with neighbours.
(7) That after the above incident all efforts made by me to trace the plaintiffs whereabouts were in vain and it was not until two days later as usual that the plaintiff returned to the house.”
The husband stated that after that incident the wife packed her belongings and left the matrimonial home. The husband, with the assistance of a doctor friend, tried in vain to persuade her to return to the matrimonial home.
As regards the maintenance, the husband admitted that he stopped maintaining the wife after the wife had left the matrimonial home. He insisted in his affidavit that since the wife was guilty of desertion she was not entitled to any maintenance. He further alleged that apart from making unreasonable demands, the wife had been unfaithful to him. She had been flirting all over the place, frequenting night clubs and hotels which have bad reputation and she had often been found in the company of other men, mostly white and Lebanese, in a most compromising manner.
The husband denied the allegation about juju practices and averred that he is a Christian belonging to a sect, called the Disciple of the Divine Society of God, but the wife is an atheist. In paragraph (15) of his affidavit filed on 23 January 1974, the husband deposed as follows:
“(15). That I am a Disciple of the Divine Society of God and I do not indulge in or believe in juju as alleged. That to an atheist, which the plaintiff is, the very act of offering prayers to God, is bound to be visited with ridicule and contempt and classified as some juju ritual.”
In a nutshell, the husband claimed to be a better person to be entrusted with the custody of the child. I must say that a lot of amputations were made by the parties in their copious affidavits filed in the proceedings; but, I think, what I have so far stated is a fair summary of the case for the parties.
The court was addressed at great length by both counsel on the various allegations. I take first the question of custody of the child. On this issue, learned counsel for the wife, submitted that on principles of common law, a male child under twelve years should be with the mother except where there are special circumstances. Learned counsel contended that there are no special circumstances in the present case and the welfare of Edward dictates that he should be with the mother, the plaintiff herein, and not with the father. Counsel argued that the father, even though he is trained in the medical sciences and he professes to be a Christian, is at
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the same time a convinced and conscientious believer in juju and does practise juju in his house. He contended that it is not at all desirable to bring up a child in a home like the father’s where the practice of juju is the basis of existence; and if the father is allowed to retain the child in such a home, the father is more likely to apply juju practice to the child, thereby endangering its life. Learned counsel cited an instance where such practices, according to him, were applied to the child.
It was further submitted by counsel that quite apart from the father’s juju practices, the father is not in a position to give care and attention to the child. He is a very busy medical practitioner and most of the time he is busy in the hospital attending patients and the little time he has for his leisure, he uses for his juju practices. Learned counsel therefore submitted that in the circumstances it is more likely that the father will leave the care of the child to the grandmother; and since the level of material existence in the grandmother’s home is very low, the child cannot be adequately and properly looked after by her and, for its welfare, the child ought to be returned to the mother, the plaintiff herein.
Learned counsel for the defendants (the father and the grandmother), Mr. Korsah, on the other hand, contended that the allegations of juju practices levelled against the father were imaginary and that the father practises only Christianity in his home and has even got an altar in his bedroom where he constantly prays. Counsel submitted that in any case even if the juju practices were true, which was denied, that will not be evidence that the father is a person who is incapable of looking after his child.
Counsel again submitted that it would be unrealistic to entrust the child to the mother as she has no identifiable place of abode. She lives with friends and most of the time runs after men and visits night clubs and hotels for immoral purposes. Learned counsel argued that the mother is so promiscuous that even while living with the husband she unsuccessfully induced the husband’s younger brother, aged fifteen years, to have sexual intercourse with her in the matrimonial home. Counsel therefore submitted that the immoral conduct of the mother is such that it will be hazardous to leave the care and control of the child to her and, in the interest of the child, the father is the right person to have its custody.
Section 16 of the Courts Act, 1971 (Act 372), which was referred to by both counsel, gives power to this court to make orders concerning the custody of any infant. Section 16 (1) (b) of the Act provides that:
“In addition to any jurisdiction conferred by any enactment, and until provision is otherwise made by law, the High Court shall have power, subject to the provisions of any other enactment,…
(b) on application by any person, and after hearing any objections to such application, to make such orders con “ in her home is low, no imputation was made in these proceedings on her character. From all indications she is a woman of respectability and a person devoted to children. For about six months when the wife was away from this country on a visit to her parents in the Soviet Union, it was this very grandmother who had to look after Edward.
At that time Edward was far younger than three years, and she did her best to make him happy. It will therefore be the height of ingratitude to suggest that this same grandmother cannot be a fit and proper person to be engaged by the father to look after Edward.
Three other children of the father (and which children were born before his marriage to the plaintiff) are staying with this grandmother. They are two girls and a boy. The youngest of them is eight years. So Edward will have his half-brother and half-sisters as playmates.
The wife herself has lived in this house before. It was in this house she and the husband lived when they were in Accra; and incidentally, it was to this very house she resorted when, according to her, she was forced out of the matrimonial home in Koforidua. The basis of the contention that “the level of material existence” in the grandmother’s house is low is that there are many mouths to feed in that house, with the result that food in that house does not seem to be of a nourishing type. Learned counsel for the wife sought to prove this allegation by saying that when the wife returned to Ghana after her visit to the Soviet Union, she found that Edward had got rashes and this was due to malnutrition. No medical report or evidence was produced to substantiate this allegation and, as it was rightly pointed out by Mr. Korsah, causes of rashes are many, and without positive medical evidence, the rashes which Edward had could not be attributed to malnutrition.
I think, however, that the most serious objection put forward by the mother against granting custody to the father is the conduct of the father in indulging in the practice of juju and Christianity at the same time. That is, the father believes in Christianity while at the same time he believes in juju and he practises both in his house. This is an element which cannot be lost sight of when considering the question of custody of a child like
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Edward. A house where these two contradictory beliefs are openly practised side by side is not an ideal place for the upbringing of a child. Because there is the danger of some contradictory influence being brought into the child’s life, an influence which certainly will not be beneficial to the child. It is my belief that a child in a house like this will, inevitably, be exposed to a variety of conflicting attitudes and practices, and will almost necessarily develop a mental conflict which may result in what the psychologists call, a split personality; and this would definitely he morally injurious to the welfare of the child.
It is not enough to give the child his worldly necessities. His morals must be moulded as well, so as to equip him to fit into society and make all around him feel the impact of his good citizenship. In W. v. W. (supra) Lord Merrivale at p.115 said, “The matters of immediate consideration are the comfort, the health, and the moral, intellectual and spiritual welfare of the child.” (The emphasis is mine.) In In re McGrath (1892) 9 T.L.R. 65, C.A. Lindley L.J. laid down the principle in the most positive terms. At p. 66, the learned lord justice said:
“The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, or by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being”.
(The emphasis in mine.) I may mention that the dictum was referred to with approval of Cozens-Hardy M.R., in the case of In re W.; W. v. M. [1907] 2 Ch. 557 at p. 566, C.A.
The concern which the courts show about the moral and spiritual welfare of children has resulted, at times, in refusal to grant custody of infants to fathers who profess and act on irreligious and immoral principles: see Thomas v. Roberts (1850) 3 De G. & Sm. 758 and Shelley v. Westbrooke (1817) Jac. 266. It is, however, well-settled that the religion of a child, just like the rest of its education, is a matter continuously for the conscience and decision of the parents. It appears in such matters that the father’s right is superior to that of the mother; and in the absence of a good reason to the contrary, and subject to the welfare and happiness of the child, the court will not interfere with the father’s right to determine in what religious faith his infant child should be brought up: see In re Scanlan (Infants) (1888) 40 Ch.D. 200 at p. 207 and Ward v. Laverty [1925] A.C. 101 at p. 108, H.L. per Viscount Cave.
In the present case, the wife agrees that the husband practises Christianity in his house. Her only complaint was that he “indulges in juju practices” as well. The husband denied the latter allegation and contended that it is rather the wife who does not believe in God. I am not so clear as to the wife’s avowed religious affiliations. In any case, she also denied being an atheist. On this aspect of the matter, I think the case is evenly balanced, and it is therefore difficult to know where the truth lies.
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The wife did not produce any evidence of juju practices by the husband. The only evidence she offered on the juju practices was that on one occasion when the child was ill the husband instead of sending the child to the hospital, insisted on employing the “hazardous juju practices” in treating the child on the ground that the illness in question was spiritual in nature. The hospital card issued on that occasion for the child (and which card counsel for the husband showed to the court during the hearing) completely gave a lie to the wife’s assertion. I am therefore convinced that the allegation of juju practices levelled against the husband has no basis.
Again, the allegations of matrimonial misconduct which the parties made against each other could not also be substantiated. These allegations, in my view, were founded on suspicion due to lack of confidence in each other’s behaviour. It cannot therefore be said that the father is so irreligious or immoral that he has precluded himself or forfeited his right to have the care and control of Edward.
Learned counsel for the father and the grandmother informed the court that Edward has become used to the house of the grandmother where the father has placed him, and that he has settled down nicely, and he now speaks Ewe, his father’s language. In my opinion, to take Edward from that house to another household will not only be hard, but there will also be an inevitable wrench to him and this would be most injurious to his welfare. In the interest of Edward, things should be left where they are; and I trust that the harmonious and happy relations which have hitherto existed between Edward and the grandmother, will not in any way be disturbed by the present proceedings.
For the above reasons, I will not grant custody of Edward to the wife. I order that Edward should remain with the husband, but I will give the wife generous access. That is, the husband should allow the wife to visit Edward at the week-ends. This order is subject to review from time to time.
I now turn to the issue of maintenance to the wife. In most cases where the spouses are living apart from one another, the question whether there has been wilful neglect to maintain depends on the same facts as the question whether or not there has been desertion on the part of either. In the case herein, the causes of the separation were explained in detail by the parties in their respective affidavits. In brief, the husband charged the wife with desertion and the wife counter-charged the husband with constructive desertion.
Hitherto, there is a fine balance and there is not much to choose between the two versions. But there is this fact, that a husband may have a good defence to desertion but not necessarily an answer to wilful neglect to maintain.
Consequently, so long as it is not clear from the present state of affairs as regards the party responsible for the separation and the cessation of cohabitation, the obligation of the husband to maintain the wife remains. That is, the obligation of the husband to maintain, which existed when they were living together, should not be affected by the separation, the
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causes of which have not, at the moment, been satisfactorily established by either party.
What then is the reasonable amount which the husband, the first defendant, should in the circumstances of this case, pay to the wife. The wife is at present unemployed. She said she has been promised a job and so she will be in employment. She may or may not get the job. At any rate, the salary she will receive, in case she gets that job, is not known. The wife contended in her affidavit, filed on 22 November 1973, paragraph (14) that the husband earns at least 0450.00 a month and owns a house in Accra.
I must say that the husband did not produce any satisfactory evidence about his income. He could easily have shown to the court, at least, his official pay slip for last month, in the same way as he showed to the court the medical card which was issued for the child to refute the allegation of having used juju practices to treat the child. The husband gave me the impression that he was not prepared to disclose his real income. Taking into consideration the submission and the affidavits filed, I am of the view that the husband’s take home pay will not be less than 0400.00 a month.
I will, in the circumstances, order the husband to pay to the wife, 065.00 a month as maintenance, beginning from March 1974, until further order of this court. The interim order for maintenance made on 20 December 1973, should stand discharged as from 28 February 1974.
The plaintiff will be entitled to some costs which I fix at 0200.00, inclusive a fee to counsel.
DECISION
Application for custody dismissed.
Orders accordingly.
T. G. K.
