CHARITY AKU HOSU VRS. KINGSLEY ABOAGYE
by HER LADYSHIP AFIA N. ADU-AMANKWA (MRS.) J.
Jurisdiction
HIGH COURT
Judge
HER LADYSHIP AFIA N. ADU-AMANKWA (MRS.) J.
Catalog Type
Case
Judgement Date
Oct 26, 2022
Summary
Matrimonial Causes – Dissolution of Marriage – Adultery – Breakdown of Marriage beyond Reconciliation – Custody – Maintenance – Burden of Proof. This case involves a divorce petition filed by Charity Aku Hosu against her husband, Kingsley Aboagye Darkwah, on the ground that their marriage had broken down beyond reconciliation. The parties were married in April 2011 and had one child. The petitioner alleged that the respondent engaged in multiple acts of adultery, including an affair that produced a child out of wedlock, and failed to provide maintenance for her and their child. The couple had also lived apart since 2016, and the respondent later expressed his intention to end the marriage. The respondent did not contest the proceedings despite being duly served, leaving the petitioner’s evidence unchallenged. The court held that allegations of adultery, though requiring a high degree of probability, were sufficiently proven in this case and deemed admitted due to the respondent’s silence. Applying the Matrimonial Causes Act, 1971 (Act 367), the court found that the respondent’s conduct rendered continued cohabitation intolerable and established an irreconcilable breakdown of the marriage. On the issue of custody, the court applied the best interests of the child principle under the Children’s Act, 1998 (Act 560). Given that the child had been in the petitioner’s care since the parties’ separation, the court granted her full custody.
Full Content
JUDGMENT
Per her petition filed on 17th December, 2021, the petitioner prays for:
“a. An order for dissolution of marriage between Petitioner and Respondent celebrated on 14/05/2011 (photocopy of marriage certificate annexed) since same as (sic) broken down beyond reconciliation.
b. Custody and maintenance of Stephanie Aboagye Darkwah.
c. Any further order/order as the court may deem fit to make.”
The petitioner testified that she married the respondent under the Marriage Ordinance on 14th April, 2011 at Tema Metropolitan Assembly. She tendered the marriage certificate in evidence as exhibit “B”. At the time of the marriage, she resided at Axim whilst the respondent lived at Akatsi. The marriage was blessed with a child, Stephanie Aboagye Darkwah, aged ten (10) years. The petitioner attributed the breakdown of the marriage to the respondent's adulterous conduct. She testified that the respondent committed adultery by sleeping with one Diana during the first year of the marriage. This resulted in a fight between the parties and Diana. During a conference with Diana (with her parents, the respondent and his mother in attendance), Diana stated that the respondent had promised to marry her. The respondent also said he only married her due to his mother's influence. The petitioner further testified that the respondent had a son, Courage, who was born out of wedlock with a lady whose name she did not know. Presently, the boy was staying with the respondent’s mother at Koforidua. The petitioner also accused the respondent of failing to maintain her and the child regarding their feeding, medical expenses, clothing and education. Again, she and the respondent had not lived as husband and wife, which had affected her emotionally, physically and morally. In 2020, the respondent communicated to her through a text message of his intention to end the marriage as he had sought the consent of his parents.
The respondent did not contest the case. Even though the petition was served on him, he failed to enter appearance and file an answer to the petitioner's plaint. Therefore, this case is one-sided, consisting only of the petitioner’s evidence.
The petitioner accuses the respondent of committing adultery during the subsistence of the marriage. On about three occasions, the respondent had slept with three women resulting in a child out of wedlock. Again, the petitioner contends that she has not lived with the respondent as husband and wife since 2016. The burden of proving adultery lies on the person who alleges it. Even though the evidence need not reach certainty as required in criminal proceedings, it must carry a high degree of probability. See Adjetey vrs. Adjetey [1973] 1 GLR 216. The testimony of the petitioner went uncontradicted. Her claim of adultery against the respondent is deemed admitted by him.
Under the Matrimonial Causes Act, 1971 (Act 367), for the purpose of showing that the marriage has broken down beyond reconciliation, the petitioner shall satisfy the court that the respondent has committed adultery and that by reason of such adultery, the petitioner finds it intolerable to live with the respondent. As the petitioner has sufficiently led evidence of the adulterous behaviour of the respondent, she is entitled to a decree of divorce in this regard.
The petitioner prays for custody of the child. In determining issues of custody of children, the court's primary consideration is the child's best interest. See section 2 of the Children’s Act, 1998 (Act 560). The petitioner did not lead much evidence regarding the circumstances of the child. However, given the petitioner's complaint of the respondent’s neglect at maintaining the child, I presume that the child is presently in her custody. There is evidence that since 2016, the parties have lived apart. This would mean that since 2016, the child has been with the petitioner. Given that the child is a ten-year-old girl, it will be in her interest for the petitioner to be given custody of her. The respondent did not contest this case and did not make any claim for custody or access to the child. His failure to contest the dissolution of the marriage disables me from determining if he is fit to be granted access to the child. Under the circumstances, the petitioner is given full custody of the child.
Finally, I hold that the marriage between the petitioner, Charity Aku Hosu, and the respondent, Kingsley Aboagye Darkwah, celebrated on 14th April, 2011 at the Tema Metropolitan Assembly, has broken down beyond reconciliation, and the said marriage is hereby dissolved. I make the following orders:
a. I grant full custody of Stephanie Aboagye Darkwah, aged ten, to the petitioner.
(b) The parties are jointly responsible for the child's school fees and medical expenses.
(c) The respondent shall pay the sum of GH¢500.00 a month towards the upkeep and maintenance of the child. Payment should be made on or before the 30th day of every month commencing November 2022.
There shall be no order as to costs.
(SGD.)
H/L AFIA N. ADU-AMANKWA (MRS.)
JUSTICE OF THE HIGH COURT.