ANSAH V. ANSAH

OWUSU-ADDO J.

The parties were married under the Marriage Ordinance, Cap. 127 (1951 Rev.) on 28 April 1963 in Kumasi. The petitioner then a spinster was described as a seamstress and the respondent was and still is a minister of religion. There are two children of the marriage, Clifford, aged eighteen years and Regina aged fifteen years. The petitioner was a mother of six children and the respondent had a son at the time of their marriage.

The husband and the wife and children lived happily together during the first four years in Sekondi. Subsequently, the husband and the wife lived in an atmosphere of mistrust and suspicion which resulted in quarrels, taunting and accusations of adultery against the petitioner by the respondent. There is evidence that the husband subjected the wife to acts of indignities which resulted in the wife’s refusal to have sexual intercourse with him. Eventually their relationship degenerated to the extent that the wife found life impossible with the husband and left the matrimonial home in September 1972. She has since not returned to cohabit with the husband and lives with her mother in Kumasi.

Her previous petition filed on 21 June 1973 was dismissed on 24 April 1975 for want of prosecution. Her present petition is dated 4 June 1975, alleging cruelty and desertion, culminating in breakdown of their marriage beyond reconciliation. She prayed that the marriage be dissolved and that she be granted custody of the two children.

In a 47-paragraphed answer dated 23 November 1976, the husband said, inter alia, that the wife did commit adultery with one Foah in their bedroom at Sekondi. Afterwards, Mr. J. E. Conduah-Lutterodt, a legal practitioner, did promote a reconciliation between them on 17 November 1972 at Kumasi and the wife returned to the matrimonial home. He urged the court to dismiss the petition mainly on the ground that they had reconciled their differences since 1972. By his supplementary answer dated 14 January 1977 the husband denied the accusation of cruelty and alleged that he was told by one Deede that the wife was a notorious prostitute and had stolen his money to support her boyfriend. The remaining paragraphs contained abuses and insults levelled against the wife.

The wife’s evidence disclosed that the main causes of the breakdown of their marriage were a series of taunts, assaults, accusations of adultery and indignities to which she was subjected by the husband.

As a result she became jittery, unhappy and distressed at the sight of the husband, and found cohabitation with him impossible; she therefore decided to leave their matrimonial home in Cape Coast around September 1972. She admitted that at the beginning of their marriage the husband was kind and good to her and her six children and a niece she brought to live with the husband. She admitted that Mr. Lutterodt, a legal practitioner and a leader of the Methodist Church, settled their differences in November 1972 in Kumasi but she refused to return to the matrimonial home. She denied having had sexual intercourse with the husband in Kumasi after the reconciliation promoted by Mr. Lutterodt.

In his evidence the husband who is at present a reverend minister of the A.M.E. Zion Church stationed at Sekondi, denied the accusation of cruelty and assault. He denied his marriage with the wife has broken down beyond reconciliation. He said the wife did flirt with one Foah who was then a messenger attached to the Essikado Health Clinic. She persisted in her association with him and used to cook for him against his protests.

He admitted that on one occasion when the wife refused to have sexual intercourse with him on the ground that she had menstruated, he used force on her to apply a white handkerchief to the wife’s vagina to find out whether her assertion was true. But it turned out that she was lying. Soon afterwards she left for Kumasi.

After the wife had left the matrimonial home he reported her conduct to the former President of the Ghana Methodist Church, Reverend T. W. Koomson, the first defendant witness. He in turn referred the matter to Mr. J. E. Lutterodt for settlement. The wife was however found guilty of adultery and their differences were amicably settled. It was then agreed that the wife should stay in Kumasi with her mother for a while before joining the husband at Cape Coast. On that day, he had sexual intercourse with the wife in Kumasi. To his utter surprise, he was served with the wife’s first petition when he was anxiously expecting her to return to the matrimonial home. It is the husband’s contention that in view of the settlement or reconciliation effected between them by Mr. Lutterodt, the wife was barred from petitioning for divorce on the grounds alleged in her petition.

In order to succeed the wife must bring herself within at least one of the six conditions laid in section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367). Considering the nature of her petition, section 2 (1) (b) of the said Act must be proved. It reads:

“2. (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts:-(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

I must first of all emphasise that the standard of proof required by law in proof of breakdown of a marriage beyond reconciliation, is the same whether the marriage was solemnised in a church or not. Furthermore, the religious beliefs of the parties is not a matter for consideration in divorce cases. The test under section 2 (1) (b) of Act 367 is what lock L.J. put the requirements in these words at p. 1256:

“First, the conduct must be such that a reasonable spouse in the circumstances and environment of these spouses could not be expected to continue to endure. This, I apprehend, is what is meant by such expressions as ‘serious’, ‘convincing’, and ‘grave and weighty’.”

On the evidence, I find that the wife has proved that the husband did subject her to certain acts of indignity and cruelty. On one such occasion she was made to stand up for the whole night because she had refused to comment on some misunderstanding which had arisen between the husband’s son and his uncle. The white handkerchief incident admitted by the husband was not only cruel but scandalous. Also the institution of a civil action against the wife and Mr. Foah by the husband for seduction in the Circuit Court, Cape Coast, was equally scandalous.

I believe that the husband used to taunt the wife and called her names such as a prostitute, because in his own answer to the petition he described the petitioner as a prostitute and a woman who would not scruple to commit adultery with men. Not to mention his scurrilous letter to the wife tendered and marked exhibit B. There is not the slightest doubt that the wife must have suffered a lot of humiliation and indignities at the hands of the husband and it is not surprising that she became jittery at the sight of the husband and was so distressed that she decided to leave the matrimonial home. On the whole, I think the wife is substantially a truthful witness and the husband behaved in such a way towards her that she cannot reasonably be expected to live with him.

The next question is whether the reconciliation of the parties’ differences in November 1972 by Mr. Lutterodt barred the wife from bringing the present petition. The answer can be found in section 4 of Act 367, which reads:

“(4) For the purpose of section 2 (1) (b), in determining whether the petitioner cannot reasonably be expected to live with the respondent, the court shall disregard any period or periods not exceeding six months in the aggregate during which the parties to the marriage lived with each other as man and wife after the date of the occurrence of the final incident relied on by the petitioner and proved to the court in support of his allegation.”

From the above provisions, it is clear that notwithstanding the reconciliation promoted between the wife and the husband by Mr. Lutterodt, in November 1972, the wife and the husband never lived together as husband and wife. There was no cohabitation and they have continued to live apart since that day. I do not think the alleged reconciliation restored the parties to their former position. It is also admitted that the wife left the matrimonial home soon after the white handkerchief incident before presenting the first petition. The wife is therefore not barred from seeking divorce on the ground of unreasonable behaviour of the husband before the reconciliation. Her petition therefore is competent. The fact that the respondent did send her some money did not alter the position. On the totality of the evidence, I accept the wife’s evidence and grant her prayer. I hold therefore that the marriage between her and her husband has broken down beyond reconciliation. The said marriage is accordingly dissolved.

I shall now deal with the question of custody of the two children of the marriage. The court’s duty with regard to custody of children is to make an order which is reasonable for the benefit of the children. As Lord Denning M.R. said in Re L. (infants) [1962] 3 All E.R. 1 at p. 4, C.A. “Whilst the welfare of the children is the first and paramount consideration, the claims of justice cannot be overlooked.”

Thus in deciding what is in the best interest of the children, the conduct of the parents, and in this case, the pattern of life set up for the children since cohabitation ceased between the wife and the husband ten years ago are important matters to be taken into consideration. The court had the opportunity of seeing and hearing Regina, the younger of the two children. She is well settled at Winneba with her aunt, the husband’s second witness. She does reasonably well at school and she appeared happy and well brought up. Taking into account all the facts, and weighing all the circumstances, my view is that Regina should remain living with her aunt at Winneba but should be permitted to visit the petitioner during holidays. Clifford is already eighteen and a day secondary school student at Elmina. He should also continue to live at Elmina and visit his mother during vacation. Her prayer for custody of the children is therefore refused.

I make no order as to costs.

Appearances

E. K. MANU FOR THE WIFE-PETITIONER; HAYFRON-BENJAMIN FOR THE HUSBAND-RESPONDENT