ADDO V. ADDO

SARKODEE J.: The petitioner prays for dissolution of his marriage with the respondent on the ground that their marriage has broken down beyond reconciliation; that they have not lived as man and wife for a continuous period of over two years and that the respondent is unreasonably withholding her consent to the grant of a decree. The petitioner says further that all attempts made at reconciliation have failed.

The parties were married in 1958 and lived and cohabited in Accra. There is no issue of the marriage but the respondent had children of her own before she was married to the petitioner. The petitioner, during the subsistence of the marriage, had four children by other women. He confesses to his adultery but says that he was forced to behave in that manner by the respondent’s conduct and persistent nagging.

On 15 March 1959, the wife petitioned for divorce on the grounds of the husband’s adultery and cruelty. She, however, discontinued the suit after the husband had filed an answer out of time. The husband could not prosecute the answer because he only cross-prayed for divorce on the ground of cruelty.

The parties have not lived together since 7 March 1969. Before that date, even though they lived under one roof, there were in effect two households. The husband charged that his wife had an ungovernable temper, she made life unbearable for him by persistently abusing and nagging him. As a result he was disturbed in his work and he developed high blood pressure. He retired from his work as a result of ill-health which started in 1968. The last time he had sexual intercourse with his wife was in May 1967 by which time marital connection had come to a halt. He is firm that there can be no resumption of cohabitation. Attempts at reconciliation made by two priests and the wife’s own uncle and relatives failed.

She on her part says that he denied her the right to sexual intercourse since 1967 because he had satisfaction elsewhere. She had always wished to have sex with him and sleep in the same room but he refused. When she entered his bedroom he would kick her with his boots, push her out and lock his door. As a result she became frustrated and irritated. On such occasions, which were frequent, especially when he returned home late, she would repair into her own room, would sing hymns and read psalms aloud and to his hearing. This, which seemed to annoy him, he called nagging. Lack of sexual intercourse has had an effect on her health. She saw a doctor who put her on sedatives as treatment for sleepless nights and irritability. Her blood pressure kept getting low. Despite all this she says the marriage has not broken down and that she still loves her husband. She however agrees that her husband is adamant and that his attitude to the marriage has not changed. He often beats her up and on one occasion, beat her with a horse whip when he was told that she had attacked one of his paramours who was then heavy with a child. She denied she attacked her but admitted that she merely had a row with her. As a result of the beating following this incident her middle finger got deformed. The husband lives with one of the women as man and wife.

Upon a careful survey of the evidence there is no doubt that the parties have not lived as man and wife since 1969. The husband’s letter dated 13 July 1971 asked for the wife’s consent as required by section 2 (1) (d) of the Matrimonial Causes Act, 1971 (Act 367). Neither did she acknowledge receipt of that letter nor reply to it. She said in evidence she did not wish to give her consent because she did not want him to fool other women.

It is now settled that a wife has a right to the consortium of her husband and these rights are reciprocal. However, a wife has no greater right to force herself upon her husband than he has to compel her to cohabit with him: see Nanda v. Nanda [1967] 3 All E.R. 401. An incident of consortium is the mutual right to sexual intercourse. But a wilful refusal to have intercourse at all will entitle the party suffering as a result of it to leave the other and such conduct if it injures the other’s health will support a charge of cruelty under the old law and it seems today, a charge that the behaviour of the respondent is such that the petitioner cannot reasonably be expected to live with him. It was so decided in Sheldon v. Sheldon [1966] 2 All E.R. 257, C.A. where a virile husband refused to have sexual intercourse with his wife for about six years although they continued to share the same bed. The wife became depressed and frustrated but the husband refused to change his attitude even when the wife’s doctor had made it clear to the husband that his conduct was causing grave injury to the petitioner’s health. The injury may be to physical or mental health but where one spouse complains of the unreasonable behaviour of the other spouse it seems to me the injury need not be actually suffered. A reasonable apprehension that injury will result if the conduct is persisted in will be enough; for the court should not wait for a spouse to be actually injured before offering her relief. Marital connection in this present case came to a halt in 1967. Despite the intervention of the spouses’ spiritual leaders the petitioner remained adamant. The respondent wife became frustrated and irritated and therefore saw a doctor. She knew that her husband’s conduct was deliberate but not so much that he was getting satisfaction with other women. After nearly ten years of normal marital relations, persistently refusing a young wife sexual intercourse over a long period constitutes unreasonable behaviour such that the wife ought not be called upon to endure it any longer. She would certainly have been entitled to a decree if she had presented one. She discontinued the one she filed and said she did so because she wanted to forgive and forget. This is not supported by the history of the marriage and the evidence as a whole. Despite all this she refused to give her consent when asked. Can this attitude be described as selfishness, vindictiveness and an unreasonable withholding of consent?

Whether or not consent is being unreasonably withheld is a question of fact in each case. The test is objective; would a reasonable spouse, placed in the situation of the particular spouse, withhold consent? All the facts must be looked at. It is obvious that since 1967 the petitioner’s love towards his wife had gone. He persistently denied her sex. The effect of this deliberate behaviour has been to injure her health. Coupled with this, is the constant nagging by the respondent and an exhibition of an ungoverned temper. The situation became completely intolerable. It is true some women can endure hardship but the test is that of a reasonable spouse. The reasonable spouse will consider her own future. She must take account of the effect the situation in the house is having on her. The effect of her giving her consent and the subsequent grant of a decree will be to destroy the legal relationship between her and her husband. Her status will change; she may lose financially. She will no longer have the comforts of a matrimonial home. Indeed she will lose these and other incidents of consortium as a result of the decree. But should a reasonable spouse allow her judgment to be controlled by them? Should she withhold her consent and suffer all the deprivations and the indignities of a broken home? I do not think she should. I think the court should come to her aid and offer her a relief. For it is better:

“When regrettably, a marriage has irretrievably broken down to enable the empty legal shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation.”

(See: Law Commission Report: Reform of the Grounds of Divorce. The Field of Choice, para. 15. (Cmd. 3123)).

In the circumstances, therefore, I hold that the respondent unreasonably withheld her consent. The marriage between her and the petitioner has broken down beyond reconciliation. A decree of divorce should be granted notwithstanding the respondent’s refusal to give her consent. It was for these reasons that I granted the petitioner’s prayer on 22 February 1973 and dissolved the marriage between him and the respondent.

Appearances

H. P. SWANIKER FOR THE PETITIONER; DR. I. S EPHSON FOR THE RESPONDENT.