OPOKU-OWUSU vs. OPOKU-OWUSU [1973] 2 GLR 349

CASES REFERRED TO

(1) Evans v. Evans [1965] 2 All E.R. 789.

(2) Sheldon v. Sheldon [1966] P. 62; [1966] 2 W.L.R. 933; [1966] 2 All E.R. 257; 110 S.J. 269, C.A. (3) Gollins v. Gollins [1964] A.C. 644; [1963] 3 W.L.R. 176; [1963] 2 All E.R. 966; 107 S.J. 532, H.L.

(4) Edwards v. Edwards [1950] P. 8; [1949] 2 All E.R. 145; [1949] L.J.R. 1335; 113 J.P. 383; 65 T.L.R. 419; 93 S.J. 450; 47 L.G.R. 541, C.A.

(5) Buchler v. Buchler [1947] P. 25; [1947] 1 All E.R. 319; [1947] L.J.R. 820; 176 L.T. 341; 111 J.P.

179; 63 T.L.R. 100; 91 S.J. 99; 45 L.G.R. 442, C.A.

(6) Re C. (A.) (an infant); C. v. C. [1970] 1 W.L.R. 288; [1970] 1 All E.R 309, C.A.

NATURE OF PROCEEDINGS

PETITION for divorce on the grounds that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with her. The facts are sufficiently set out in the judgment.

COUNSEL

Asiamah led by Alhaji Kwaw Swanzy for the petitioner.

Mustapha for Cromwell Quist for the respondent.

JUDGMENT OF SARKODEE J.

On 1 July 1973, I made an order dissolving the marriage between the petitioner and the respondent and reserved my reasons for making that order. I now proceed to give the reasons.

The husband-petitioner herein seeks divorce on the sole ground that his marriage with the respondent has broken down beyond reconciliation in that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with her. The petitioner asks for the custody of the four children of the marriage.

[p.351] of [1973] 2 GLR 349 In order to determine whether the conduct of one spouse has been such as to entitle the other to withdraw from cohabitation the circumstances surrounding the conduct and the whole history of the marriage must be considered. The petitioner is a Ghanaian domiciled in Ghana and the respondent a German citizen domiciled in West Germany. On 18 July 1959 the petitioner, then a bachelor, married the respondent, then a spinster at the Evangelical Presbyterian Church of Venusberg, Bonn in West Germany. At the time of the marriage the spouses were young and virile; she about seventeen years and he a student aged about 31 years old. They met when she was fifteen years old. After the marriage they lived and cohabited in West Germany and then in Ghana spending a greater part of their time at the University of Science and Technology, Kumasi, where the petitioner was a lecturer and finally in Accra. There are four children of the marriage, namely, Owusu-Banahene aged twelve years, Gabriele Adwoa aged ten years, Owusu-Bekoe aged eight years and Rainer Kwasi, four years old.

The petitioner says that their marriage was a happy one until about June 1969, when his wife secured a job at an Embassy in Accra as a secretary. She then appeared to be in love with her job and the people with whom she worked. She worked very late and stayed out late leaving the four children. She became an errand girl of the first secretary of the embassy who called her at odd times very often in the evenings. The husband drew her attention to this and told her that her behaviour was not good enough for a mother of four but she would not change. She has, since taking the job, deliberately refused to have sexual intercourse with the husband. When he realised that things were getting out of hand he insisted on his right to have sexual intercourse with her but she told him she had seen her lawyer and was leaving the matrimonial home. When she left finally, she did not tell her husband where she was. She told him she did not want maintenance from him and that he should look after the children.

Both spouses say that the marriage has broken down beyond reconciliation and pray that it be dissolved but whereas the husband says that his wife has behaved in such a way that he cannot reasonably be expected to live with her, she on her part says that she had to leave the matrimonial home because of her husband’s frequent demand for sexual intercourse and fear on her part of having another unwanted child; the last child having been born against the wishes of the wife. She said that there was no place for another child. They were often in need of money and she had to work to supplement their income. Because she did not want to have sex with him he became so inordinately jealous that he did not want her to have friends not even females. She alleged that the petitioner became violent, even though he never hit her. His mere presence in the house frightened her. He shouted at her and the children and at times would wake up at about 2 or 3 a.m. shouting at the top of his voice. There was never peace in the house. The situation became so intolerable that she had to leave the matrimonial home. At the time she was leaving

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she did not love her husband any more; he had killed every bit of love she had for him. She and her husband tried several times by themselves and with the assistance of friends to resolve their differences but failed mainly because the petitioner was not prepared to change his sex life, and so she says there is no point in their trying again. She is certain they can never live as man and wife again.

The mutual right to intercourse after the marriage has been consummated continues during marriage but this right must be reasonably exercised. One spouse is not bound to submit to the demands of the other if they are unreasonable and inordinate or are likely to lead to a breakdown in health. On the other hand a wilful refusal by one spouse to have sexual intercourse may entitle the party suffering to leave if in all the circumstances of the case it can properly be “regarded as grave and weighty and if it has adverse effect on the health of the other spouse.” See Evans v. Evans [1965] 2 All E.R. 789 and also Sheldon v. Sheldon [1966] 2 All E.R. 257, C.A. I think it is right to say that the spouse who suffers as a result of an unreasonable insistence on sexual intercourse will be entitled to leave the other.

However in considering whether one party has good cause for leaving the other much depends on whether the conduct of the other is of a grave or weighty character as to amount, in law, to cruelty: see Gollins v.

Gollins [1963] 2 All E.R. 966, H.L. But conduct which is of a grave or weighty nature may sometimes fall short of cruelty if it lacks the element of injury to health as in Edwards v. Edwards [1950] P. 8, C.A. and may afford good cause for desertion. In Buchler v. Buchler [1947] P. 25, C.A. the question that fell for determination was what conduct on the part of a husband justified a wife in refusing to live with him. Lord Greene M.R. said at p. 30:

“The crucial matter for consideration therefore is the nature of the conduct relied upon as equivalent to an expulsion of the complaining spouse.

It must, I think, be accepted that the acts sufficient to satisfy this test must be of a serious and convincing nature.”

Such conduct may also amount to just cause for leaving even though it lacks the element of intent to injure. Whether in any given case the requirement is fulfilled is a question of fact.

It will be for the trial court to say whether the facts were capable of being regarded as equivalent to an expulsion from the matrimonial home. But each case depends on its own facts and in particular on the effect on the particular spouse who complains of that conduct. The wife in the instant case had no intention to injure her husband. She had to leave because of her husband’s behaviour. He had become an overbearing, domineering and dictatorial husband. He shouted at his wife and very often quarrelled with her. This conduct of his started as far back as 1967. From 1959 when they married to 1970 when the last child was born, that is a period of about eleven years the wife had ten pregnancies. Two of her children died, four are alive and she suffered some miscarriages. Between

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August 1970 and April 1972 even though they lived under one roof and slept in the same room they did not live as man and wife. After April 1972 they had separate bedrooms. This was as a result of a compromise solution put forward by friends who tried to help them settle their differences. Earlier in November 1971 she left Ghana with the four children for Germany without informing the petitioner who was out of the country to attend a conference. The petitioner went to her in Germany in her sister’s house where she agreed to return to Ghana on condition that he did not insist on sexual intercourse for a period. He failed to honour his part of the bargain, for barely a month or two after her return he started to make advances. She refused at first but had to give in. However, when she realised that it was getting frequent, especially during menstrual periods when she considered it unsafe to have sex, she refused. This annoyed the petitioner. He wanted his pleasure and that was all. In1969 when she told him that she was pregnant he retorted that that was the punishment for denying him sex. She was afraid he would punish her. She became so frightened of him that she felt revulsion whenever he touched her. She looked at sex with contempt. She was in constant fear of her health because even though she had a contraceptive device inserted in her, the doctor told her it was not one hundred per cent safe. He had become a jealous husband to the extent that he thought she had suddenly realised that she belonged to a superior race. In this regard I accept the wife’s evidence that she did not feel that way. Rather she had Ghanaian friends and after she had left the petitioner she was seen in the company of Ghanaians. She became nervous and her doctor told her she was very close to a nervous breakdown. At times she felt like committing suicide but for the children. Now that she has left the matrimonial home she has become relaxed and is no longer afraid of anyone.

I accept her evidence that Mahmoud Assaad is only a casual friend and that there has not been intimate relations between them. Finally, I hold that any repugnance that she had to the sexual act was due to her husband’s sexual excesses which resulted in the fear that she might have more children. The situation was such that it became practically impossible for the parties to live together. In my view she had good cause for withdrawing from cohabitation. I will therefore dismiss the petition and grant the respondent’s prayer.

I find that her marriage with the petitioner has broken down beyond reconciliation. The said marriage is hereby dissolved.

I have viewed with grave concern the question of the custody of the four children. The wife prays that she be granted the custody of the only daughter Gabriele Adwoa aged ten years, and the youngest child Rainer Kwasi, aged four years. The husband, on the other hand asks for the custody of all four children.

In such an application the paramount consideration is the welfare of the children. The court’s duty is to protect the children irrespective of the wishes of the parents. In the normal course, the mother should have the care and control of very young children, particularly girls or those who for some special reason need a mother’s care; and older boys to have the

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influence of their father. But Edmund Davies L.J. in Re C. (A) (an Infant); C. v. C. [1970] 1 All E.R. 309 at p. 313, C.A. said that there is no principle in custody cases that a boy of eight should other things being equal, be with his father; in all cases the paramount consideration is the welfare of the infant and the court must look at the whole background of the infant’s life and at all the circumstances of the case.

Both spouses claim they love the children. There is evidence that each of them at one time or another had been hard on the children but I consider this as the normal behaviour of a parent who wants to instil discipline in his children. She says even though she has left the matrimonial home she still loves the children, that she is often at home in the afternoon when the children will return from school. The petitioner would then be at work.

The petitioner on the other hand says that he has a housekeeper and a maid, that he has comfortable accommodation for the children and in any case the respondent abandoned the children in September 1972 since then they have been in his care and control. He says the children are now settled and have got used to the absence of their mother.

The respondent lives in a flat. She says she will stay in Ghana if given custody of the two children. But she lives alone and is very often, especially at weekends, in Kumasi. She has not suggested any satisfactory arrangements for the control of the children. The children are all attending school and Gabriele Adwoa will be taking her common entrance examination for entry into secondary school next academic year beginning September this year.

Above all, the respondent is an alien whereas her children are Ghanaians. Prior to the presentation of this petition she lived in the country on her husband’s “ticket.” In anticipation of the dissolution of her marriage with the petitioner she obtained a resident permit on account of her employment. But what if she lost this job? There will then be the likelihood of her taking the children out of the jurisdiction. She has done it before. The children are Ghanaians and have lived in this country all their lives; they may not easily fit into the German community, if taken there. That apart, I think it is desirable to keep brothers and sisters together and not to split them up. A separation will disturb their progress and may affect them emotionally.

I will therefore grant custody of the four children Owusu-Banahene, Gabriele Adwoa, Owusu-Bekoe and Rainer Kwasi to the petitioner-husband. Whilst the respondent remains in this country she may be given reasonable access to them.

Costs ¢200 to the respondent.

DECISION

Decree granted.

Order accordingly. S.Y.B.B.