BOAKYE VRS BOAKYE (A4/55/2023) [2023] GHADC 1190 (30 August 2023)

IN THE DISTRICT COURT ‘B’, SUNYANI HELD ON WEDNESDAY THE 30TH DAY OF AUGUST, 2023 BEFORE HIS WORSHIP ERIC DANING ESQ DISTRICT MAGISTRATE. SUIT NO. A4/55/2023 …………. PETITIONER IN THE MATTER BETWEEN EMILIA BOAKYE H/NO. 157/8, ODUMASE VRS APOSTLE RICHARD KWAKU BOAKYE H/NO. P 25/8, FIAPRE RESPONDENT JUDGMENT The Petitioner claims from the respondent the following reliefs: (a) An order for the dissolution of the ordinance marriage between the parties. (b) Equal share of the properties they jointly acquired during the existence of the marriage. (c) An amount of GH¢50,000.00 in the form of push off. (d) Maintenance order pending determination of the case. (e) Accommodation for the petitioner and the children. (f) An amount of GH¢ 100,000.00 as compensation for the work done and her contribution towards the respondent’s house H/No. P 25/8, Fiapre and the church at Atta Dei. In his response to the petition, the respondent in paragraph 10 of his response stated that the marriage between the parties has not broken down irretrievably but if the petitioner wants the divorce, he has no objection to same. Again, in paragraph 11 of the response to the petition, the respondent prays that, the wish of the petition be granted and the marriage between the parties be dissolved. The petitioner particularized the reasons for the petition as follows: (i) That, respondent has seized visiting the petitioner and the children for almost one (1) year. (ii) There is no communication between the parties for almost three (3) years. (iii) The parties have not had sexual intercourse for almost three years. Section 2 (1) (b) of the Matrimonial Causes Act, 1971 [Act 367] provides that, a petitioner relying on unreasonable behaviour for a petition for divorce must satisfy the court that, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. In the case of GOLLINS VRS GOLLINS [1964] AC 644, the House of Lords stated that, if the conduct can be called cruel it does not matter whether it springs from the desire to hurt or selfishness or sheer indifference. Unreasonable behaviour which is, has been held to be a form of cruelty has been defined as “a conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rife to a reasonable apprehension of such danger”. The fact that a party responsible to maintain the household has failed to maintain the household as a responsibility and which failure is due to a wilful neglect to maintain constitute cruelty. In divorce proceedings the conduct complained of as a ground for a divorce petition must be serious, grave and weighty in nature as to make co-habitation virtually impossible. It must certainly be higher than the ordinary wear and tear of any normal married life. In MENSAH VRS MENSAH [1972] 2 GLR, 198, the wife petitioner filed a divorce petition claiming that the marriage has broken down beyond reconciliation. She said that the respondent had been in the habit of assaulting her without just cause and that this happened at the very inception of the marriage and continued up to the removal of the petitioner from the matrimonial home. Among the conduct complained of is the fact that the respondent had been insulting the petitioner for her failure to have children even though he has not cooperated with the petitioner in all their efforts to have their situation of childlessness changed. Respondent has made all efforts abortive due to the passive resistance of the respondent, a situation which has caused the petitioner a great mental distress and humiliation. The petitioner in that case further stated that, the happenings has caused her to leave the matrimonial home with no intention of going back and no more efforts at reconciliation would succeed. The respondent in that case denied that the marriage had broken down beyond reconciliation. He stated that he was not aware of any attempt at reconciliation and denied that he had behaved in such a way that, petitioner could not reasonably be expected to live with him. It was held that the marriage had broken down beyond reconciliation. According to the learned Judge Justice Hayfron Benjamin, the question to determine is whether a refusal of the respondent to cooperate in seeking a solution to the problem of the parties, failure to have an issue, coupled with the insults and assaults complained of can be held to be such behaviour as to justify a finding that, the petitioner cannot reasonably be expected to live with the respondent. There is uncontradicted evidence that the petitioner suffered great mental destress and humiliation as a result of insults and assaults. In the instant case, the petitioner among other things stated as a ground for the petition that, the parties have not had sex for the past three years. The refusal to have or give sex to a married partner may constitute depravity which may lead to one party developing illness due to the stress and pressure from any such refusal to have or give sex to the sufferer. In the case of POKU VRS POKU [1973] 2 GLR, the court held that “A wilful refusal by one spouse to have sexual intercourse might entitle the other party suffering to leave if in all the circumstances of the case it could properly be regarded as grave and weighty and if it had an adverse effect on the health of the other spouse. Such conduct must also amount to a just cause for leaving even though it backed the element of intent to injure. However, one spouse was not bound to submit to the demand of the other if they were unreasonable and inordinate or were likely to lead to a breakdown of health. The respondent in that case readily gave his blessings for the demand by the petitioner to have the marriage dissolved making the possibility of saving the marriage by any attempt further at reconciliation impossible. On the issue of the property acquired during the subsistence of the marriage, the petitioner in her evidence could not establish the fact that the land on which the building was built was either bought at the time of the marriage or that the construction of the house took place from the very on set during the pendency of the marriage. Petitioner’s evidence that she met the building as an uncompleted house which took the joint effort of the parties to complete was flatly denied by the respondent. The respondent rather in evidence told the court that the house and the land was acquired by his late father who apart from starting the construction of the house also bought all the roofing materials and handed over the construction to respondent with a clear instruction that the house was for the benefit of the respondent and his siblings. The petitioner though was able to lead some credible evidence to the effect that she supported the respondent at some point during the construction of the house she could not prove her claim in terms of sections 10, 16 and 14 of the Evidence Act, 1975 [NRCD 323] and so cannot be entitled to a share of the house which by the preponderance of the probabilities goes in favour of the respondent’s evidence to the effect that the land and the house thereon is the property of his late father. At best, the petitioner may be entitled some monetary compensation but for the extent of work she did in support of the respondent to continue and complete the construction of the said house. On the issue of the Alimony or cash compensation for the marriage or in other words push-off, the parties in an out of court settlement agreed on Gh¢20,000.00 which the respondent paid to petitioner in court and so the matter on the push-off becomes otiose or moot and this required no further elaboration. On the whole and in view of the foregoing, the judgment of the court is that the marriage between the parties having broken down beyond reconciliation is hereby dissolved. The marriage certificate of the marriage is accordingly cancelled. The respondent is ordered to compensate the petitioner with GH¢15,000.00 for her effort and labour on the house that is said to be the property of the late father of the respondent but which the respondent allowed the petitioner to assist him complete same in the belief that it was going to be the property of the couple. The respondent is further ordered to maintain the children with GH¢ 1,000 every month effective September, 2023 and provide accommodation (rent) for the children and pay all school fees. Petitioner must support the feeding and clothing of the children. Cost of GH¢1,000.00 SGD. H/W ERIC DANING [MAGISTRATE] 5