Amankwaa Vrs Boasiako [2023] GHADC 415 (6 June 2023)

IN THE DISTRICT COURT BECHEM HELD ON TUESDAY 6TH JUNE, 2023 BEFORE HIS WORSHIP KORKOR ACHAW OWUSU, ESQ. DISTRICT MAGISTRATE SUIT NO. A4/08/2022 YAA DAMOAH AMANKWAA DUAYAW NKWANTA PETITIONER AHAFO REGION VRS FRANK ANTWI BOASIAKO BECHEM AHAFO REGION PETITIONER RESPONDENT J-U-D-G-M-E-N-T RESPONDENT PRESENT PRESENT The Parties before this Court are a married couple. They got married under the customary ordinance at the Freeman Methodist Chapel at Berekum on 3rd October, 2015. They have married for seven (7) years; and blessed with two (2) issues; namely: Adepa Damoah Antwi, five (5) years and Nkunim Nyarko-Abronomah Antwi, three (3) years. The Petitioner has brought the Respondent to Court for the dissolution of their marriage. Initially, the parties agreed to patch up their differences through mediation. However, the mediation hit rocks; and both parties have resolved to have their marriage dissolved. And On 6th May, 2022, the Petitioner filed for the dissolution of their marriage with the following reliefs: (a) Dissolution of the ordinance marriage contracted between the parties on 3rd October, 2015 since the marriage has broken beyond reconciliation. (b) For an order of the court to compel the Respondent to pay GHC7, 000.00 being a loan the Respondent asked the Petitioner to contract for their wedding ceremony, naming ceremony of their daughter, Nkunim Nyarko-Abronomah Antwi and the Respondent’s school fees at the UCC. (c) Push-off of GHC5, 000.00. (d) An order of the court to compel the Respondent to maintain the two (2) issues of the marriage with GHC600.00 per month. (e) An order of the court for custody of the two (2) issues, namely; Adepa Damoah Antwi, five (5) years; and Nkunim Nyarko Antwi, three (3) years. (f) An order of the court to compel the Respondent to cater for the educational, health and other necessaries of the aforementioned issues. CASE OF THE PETITIONER The Petitioner is a teacher and lives at Duayaw Nkwanta in Tano North Municipality. She testified that she and the Respondent got married on 3rd October, 2015, that is for about eight (8) years now. However, according to the Petitioner, she has not enjoyed the said marriage since day one. The Petitioner also averred that the Respondent has denied her sex since 2018 for almost four (4) years now. The Petitioner further testified that the Respondent does not maintain the family. That is, he does not provide house-keeping money neither does he clothing and shelter among other things expected of a husband and father. According to he Petitioner, when she was in labour for their last born Nkunim, the Respondent ran away. The Petitioner further alleged that the Respondent had sexual intercourse with his co- tenant and her daughter. And anytime he conducted examinations, the Respondent would have sexual intercourse with some of the female pupils in his class before he would promote them. The Petitioner further alleged that the Respondent had an affair with one of his staff members in his school at Dwomo. These behaviours of the Respondent, according to her, were an abomination to the chiefs and elders of Dwomo; so they had to perform customary rites on the Respondent to appease the gods of the land. That was not all. The Petitioner also accused the Respondent of stealing her money on several occasions. It is also the case of the Petitioner that the Respondent sometimes describes her as desperate for marriage that is why she does not complain about the ill treatments metered out to her by Respondent. These remarks, she says are distasteful and an embarrassment on her womanhood. The Petitioner indicated to the court that the marriage has broken down beyond reconciliation; and therefore, prays to the court to dissolve the marriage as she has returned the Respondent’s drinks to his family. The Petitioner finally contended that the Respondent has behaved in such a way that she cannot reasonably be expected to live with the Respondent. For these reasons, the Petitioner is in court seeking dissolution of their marriage among other reliefs endorsed in her Petition. The Petitioner tendered in evidence a Marriage Certificate confirming the marriage contracted between the parties herein; and the same was accepted and marked as Exhibit “A”. PW1, Honourable Beatrice Owusu-Ansah, Assemblywoman of Dwomo Electoral Area testified in corroboration of the Petitioner’s evidence that the Respondent had an affair with school pupils. In her testimony, PW1 stated that one day the Respondent and his grandfather approached her and intimated to her that there was an issue between the parties herein. According to PW1, the cause of the issue was an allegation that the Respondent had an affair with a school girl at Dwomo in the school compound. PW1 added that in the company of the Respondent and the grandfather, they approached the school girl’s father to investigate the matter. In the end, it was confirmed that the Respondent had an affair with the girl so the Respondent compensated the father with an amount of GHC1,000.00. CASE OF THE RESPONDENT The Respondent is a teacher and lives in Bechem in the Tano South Municipality. In his evidence, he confirmed that he and the Petitioner have been married for four (4) years; but have separated for the last three (3) years. The Respondent further testified that their relationship was alright and enjoyable until he faced with financial problems at which point the Petitioner made up her mind to pull out of the marriage. The Respondent added that the Petitioner abuses him verbally and emotionally. According to the Respondent, the Petitioner at one time even caused his arrest when a disagreement arose between them. Stressing on the challenges he has been facing in the marriage, the Respondent told the court that the Petitioner sometimes denies him sex and would tell him to go and find a job to do instead of requesting for sex. Meanwhile, the Petitioner was aware that his salaries had been embargoed. It is also in the evidence of the Respondent that somewhere in 2017, he attempted to divorce the Petitioner because he suspected that she was cheating on him. According to the Respondent, when he questioned the Petitioner, she admitted cheating on him; but dared the Respondent to divorce her. However, the Respondent’s head of family; and his brother intervened and settled the issue. The Respondent also denied the Petitioner’s claim that he has been an irresponsible husband and father; and that he has risen to the occasion being a husband and father by taking the two issues of the marriage to school. According to the Respondent, he pays GH₵ 374.00 a term for each child; GH₵ 4.00 a day as their feeding fee; as well as maintaining the Petitioner with GH₵150.00 monthly. That is, in all, the Respondent pays GH₵1,478.00 every three (3) months to the Petitioner and the children. The Respondent also raised an issue that the Petitioner does not inform him about her movements with the children. He cited an instance where the Petitioner failed and/refused to inform him when she and the children relocated to Duayaw Nkwanta. To the Respondent, it is the Petitioner’s wish that he was dead or jailed; and therefore, sees it better to have the marriage dissolved. The Respondent called no witnesses. ISSUES FOR RESOLVE Considering the evidence of the parties, the main issues that came up for determination by the court were as follows: 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not the Petitioner is entitled to her claim of GHC7, 000.00 loan she allegedly contracted for the Respondent. 3. Whether or not the court has jurisdiction to order the Respondent to maintain the children of the marriage with GHC600.00 monthly as prayed by the Petitioner. 4. Whether or not the court has jurisdiction to order the Respondent to pay an alimony of GHC5, 000.00 to the Petitioner on dissolution of the marriage. 5. Whether or not custody of the two issues of the marriage be granted to the Petitioner or Respondent. I shall now deal with the issues in the order as they appear. Issue 1: Whether or not the marriage between the parties has broken down beyond reconciliation. For the purposes of establishing whether or not a marriage has broken down beyond reconciliation, some of the factors the court must look for include, but not limited to, the following. I shall first deal with adultery. On this subject, section 2(1)(a) of the Matrimonial Causes Act, 1971 (Act 367) provides: "A petitioner may rely on the fact that the respondent has committed adultery and the fact that as a result of the adultery he or she finds it intolerable to live with the respondent, to prove that the marriage has broken down beyond reconciliation." What this provision suggests is that a petitioner is under obligation to prove two things, that: adultery has been committed; and as a result of the adultery, the petitioner finds it intolerable to live with the respondent. That is to say, the commission of adultery per se is not enough to file for divorce; intolerability on the part of the petitioner also has to be established. The test of intolerability was given by Frederica Ahwireng-Obeng (Mrs) in her book: AT A GLANCE! CONTEMPORARY PRINCIPLE OF FAMILY LAW IN GHANA (2nd Edition, pp. 131 to 137). She states as follows: "... The intolerability test implies that the court must decide whether the particular petitioner before the court finds it intolerable to live with the respondent and not what a reasonable person would find intolerable. The discovery of the adultery must make life intolerable for the petitioner. In other words, the intolerability must be linked to the adultery". From the evidence of the Petitioner, which most part was not denied in cross- examination by the Respondent, she has gone through series of emotional trauma and mental anguish in her relationship with the Respondent. To her, therefore, the Respondent has behaved in such a way that she cannot be expected to live with him. Another factor that gauges that a marriage has broken down beyond reconciliation is unreasonable behaviour on the part of a respondent. This conduct of the respondent must be grave and weighty making living together impossible. In other words, the conduct must be serious and higher than normal wear and tear of married life. Some acts of respondents that amounted to unreasonable behaviours were catalogued in the case of Arthur v. Arthur [1964] 108 Sol Jo 317 C. A. That case held that wilful refusal to have sexual intercourse or persistent demand for inordinate sexual acts or malpractices may amount to unreasonable behaviour. (See also Sheldon v. Sheldon [1966] 2 All ER 257, CA). Also worth mentioning as one of the conducts that indicate that a marriage has broken down beyond reconciliation is where the parties have failed to live as husband and wife for a continuous period of two years immediately preceding the presentation of the petition and that the respondent consents to the decree being granted. According to Lawyer/Author Frederica Ahwireng-Obeng (Mrs) (supra), mere separation is not enough. It must be established that at least one of the parties believed the marriage has come to an end. Thus in Addo v. Addo [1979] 2 GLR 103, the husband and wife married in 1958 but ceased to live as husband and wife in 1969. Even though they lived under one roof; there were in effect two separate households. The court held that the marriage had broken down beyond reconciliation. Finally, a marriage may also be deemed to have broken down beyond reconciliation where the parties are unable to reconcile their differences. In other words, when a petitioner is able to establish that they are unable to agree with the respondent on a particular issue or issues, the court will decree a dissolution if it has led to a breakdown of the marriage beyond reconciliation. This principle found its expression in Mensah v. Mensah [2012] 1 SCGLR 391. In that case, the husband refused to see a doctor to help his wife fall pregnant. The court held that the parties had been unable to reconcile their differences and therefore, the marriage had broken down beyond reconciliation. Under such circumstances, the petitioner is under an obligation to prove that all attempts at reconciliation have been unsuccessful. I have gone through the parties’ respective evidence to find whether or not the behaviour of the Respondent as complained by the Petitioner, in fact, suggests that the marriage has broken down beyond reconciliation. In other words, the Petitioner complains that the Respondent has been adulterous to the extent that he sleeps with his pupils. The Petitioner also proved to the satisfaction of the court that the parties have failed to live as husband and wife for at least three years now. According to the Petitioner, the Respondent packed bag and baggage and left the matrimonial home at Dwomo for Bechem about three years ago and has since not returned. That is not all. The Petitioner further complained that the Respondent has wilfully denied her sexual intercourse for about four years. However, he has sex with school girls in his class; as well as other women. That is a major ingredient of unreasonable behaviour. It is worth mentioning that the Respondent’s response to the Petitioner’s allegations of adultery worth consideration. And for the purposes of fair judgement, it is appropriate to reproduce the relevant portions of the cross-examination questions put to the Petitioner by the Respondent: “Q: It is also not true that I had an affair with my co-tenant’s wife while I we were married. A: You did. You even had an affair with about six different women.” From the Respondent’s question, he denied ever having extra-marital affairs with any other women. However, when PW1 gave her evidence in court, it corroborated with the Petitioner’s evidence. Even though the Respondent denied the allegation, he somehow gave himself away. This was the part that points to the fact that the Respondent had an affair with other women outside wedlock. In his cross-examination questions to PW1 on his alleged responsibility for a pregnancy of a school girl, the following ensued: "Q: How were you able to arrive at the conclusion that I had an affair with the girl? A: When she was sent to Duayaw Nkwanta Hospital, she was diagnosed pregnant. Q: Was a paternity test conducted to prove that I was responsible for the pregnancy? A: I was only informed that the girl was diagnosed pregnant.” These questions put to PW1 and the answers therefrom appear to exonerate the Respondent. However, the Respondent’s answer did not deny the fact that he had sexual intercourse with the girl. Otherwise stated, the fact that the Respondent denied being responsible for the pregnancy did not necessarily deny the fact he had an affair with the school girl. It must be pointed out that the court is not concerned about who was responsible for the pregnancy. Rather the court is concerned about whether or not there had been sexual intercourse between the Respondent and the said school girl leading to adultery. On the issue of the Respondent paying a compensation of GHC1, 000.00 to the girl’s father for impregnating the girl, the Respondent failed to cross-examine PW1 on that allegation. It is also on record that the Respondent packed bag and baggage and left the matrimonial home at Dwomo for Bechem for over three years and has since not returned home. It is interesting to note that the Respondent here too did not cross- examine the Petitioner on that issue. Equally, the Respondent failed and/or refused to cross-examine the Petitioner on her allegation that he has wilfully denied her sexual intercourse for many years. Here too it is deemed that he has no defence. It is a notorious fact in law that where an allegation was made by one party and the opponent failed and/or refused to cross-examine that party, even though granted the opportunity, that evidence would most invariably be deemed to be the truth. (See In Re Ashalley Botwe Lands: Adjetey Agbosu & Others v. Kotei & Others [2003-2004] 1 SCGLR 420 at 431-432, Quargraine v. Adams [1981] GLR 599; and Fori v. Ayirebi [1966] GLR 627 SC). Assuming without admitting that the Respondent was liable for once out of the numerous allegations levelled against him, it could be enough a cause to describe the marriage between the parties to have broken down beyond reconciliation. Similar circumstances came before the Court of Appeal for Their Lordships’ Judicial opinion in the case of Knudsen v. Knudsen [1976] 1 GLR 204. In that case, a one-off act by the respondent was enough a cause for the court to decree a dissolution of the parties’ marriage. In fact, the Court Of Appeal held: “The behaviour of a party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act if it is of sufficient gravity or of a persistent course of conduct or of a series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but cumulative effect of all taken together would do so.” Flowing from the discussions above, the court is of the humble view that the marriage between the parties contracted on 3rd October, 2015 has broken down beyond reconciliation. However, as to whether or not the marriage shall be dissolved, the court has the following to share. In Gladys Mensah v. Stephen Mensah [2012] 1 SCGLR 391, Dotse JSC quoting from Lord Denning’s book, “LANDMARKS IN THE LAW” Butterworths, 1954 (at p. 176) on the topic: “ON CHANGE IN ATTITUDE OF THE BRITISH PEOPLE TO DIVORCE”, wrote: “There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable...” Explaining Lord Denning’s words, the learned Supreme Court Judge stated that the above quotation can equally be said to be applicable to the Ghanaian society. In other words, the world is now a global village where best and convenient practices go viral within a split of seconds. It is no surprise for a party as in the instant case call for a dissolution of the marriage. On the basis of the ratio in the authority of Gladys Mensah (supra), the court shall therefore, declare that the marriage between the parties has broken down beyond reconciliation. Issue 2: Whether or not the Petitioner is entitled to her claim of GHC7,000.00 loan she alleges to have contracted for the Respondent. It is trite learning that the burden of proof of an allegation lies on the party who asserts it. Thus, section 14 of the Evidence Act, 1975 (N. R. C. D. 323) makes it clear that the burden of persuasion is normally on the party to whose case the fact is essential. This position was buttressed in the cases of Tim Garner and Frank Stankunas v. Ecobank Ghana Ltd [2017] JELR 64419 (HC) and in In Re Ashalley Botchway Lands; Agbosu & Others v. Kotey & Others [2003-2004] 1 SCGLR 420 @ 444. The combined effect of these cases was that, in a civil suit, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it on a balance of probabilities. In fact, the Supreme Court stressed the point in Okudzeto Ablakwa (No. 2) v. Attorney General & Another [2012] 2 SCGLR 845 at 867 that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. In other words, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. I have considered the evidence of the Petitioner and find that save in her reliefs as endorsed in the Petition, she could not lead enough evidence to prove her allegation that the Respondent asked her to take a bank a loan of GHC7, 000.00 for the Respondent’ school fees. The Petitioner could not also prove to the satisfaction of the court that the alleged GHC7, 000 loan she contracted was used in the parties’ wedding and child naming ceremonies. In fact, in all these allegations, the Respondent flatly denied them. It is basic learning that a plaintiff must win their case on merit as was espoused in Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891, 901; and not because the defendant failed in proving their case. Proof in law does not entail giving just the raw evidence without witnesses or documents in corroboration. It must be either one of them or both. Thus, Dr Date-Bah, JSC citing with approval the case of Majolarbi v. Larbi (1959) GLR 190 in T. K. Serbeh & Co. Ltd v. Mensah [2005-2006] SCGLR 341 at 360 - 361 held, as herein paraphrased, that however credible a witness may be, his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof. Therefore, on the basis of the Petitioner’s inability to prove that allegation discussed supra; coupled with the ratio in Majolarbi v. Larbi (supra), the court finds the allegation as unmeritorious and the same dismissed. Issue 3: Whether or not the court has jurisdiction to order the Respondent to maintain the two children of the marriage with GHC600.00 monthly. On child maintenance on dissolution of marriage, the case of Isaac Kwame Amoah Ahinful v. Anne Marrie Ahinful [2016] JELR 107733 has something relevant to share. That case stated that under section 22 of Act 367 the court has jurisdiction to make an award for maintenance of children of a household. It therefore enacts as follows: “22. Custody and financial provision for children (1) In proceedings under this Act, the Court shall inquire whether there are any children of the household. (2) The Court may, either on its own initiative or on application by a party to proceedings under this Act, make an order concerning a child of the household which it thinks reasonable and for the benefit of the child”. On child maintenance, subsection (3)(c) in particular provides: “Without prejudice to the generality of subsection (2), an order under that subsection may: provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage.” The foregoing provision establishes that children of a household, (i.e. issues of a marriage), have to be maintained whether or not the marriage is in subsistence. The question that arises is that: “Is it the sole responsibility of a man to maintain children?” This question was addressed by Frederica Ahwireng-Obeng (Mrs) in her book: AT A GLANCE: CONTEMPORARY PRINCIPLE OF FAMILY LAW IN GHANA (supra). The author (at pp. 62 & 63) in her book stated that it is no longer the sole responsibility of the man to maintain the wife and children as opposed to Ollenu J’s position in Quartey v. Martey [1959] GLR 377. The author stated that the law has been flexible and favourable to both spouses in a marriage. Thus section 16 of Act 367 has provided: “Section 16—Neglect to Maintain Spouse or Child. (1) Either party to a marriage may petition the court for an order for maintenance on the ground that the other party to the marriage has wilfully neglected to provide, or to make a proper contribution towards reasonable maintenance for the petitioner or any child of the household”. What this means is that under Act 367, it is now the duty of both spouses to maintain each other including issues of the marriage. It is no longer the sole responsibility the husband. In the instant Petition, here we are with both parties who have described themselves as teachers and are on government payroll. Therefore, if for one reason or the other a spouse cannot genuinely discharge their duty by way of maintenance of the household, the other spouse who has better and stronger financial standing comes under the duty to crutch up the weaker spouse and maintain the family. Given our present circumstances; and reasoning with section 16 of Act 367, the court shall decide that both parties shall be responsible the maintenance of the two children of the marriage. Issue 4: Whether or not the court has jurisdiction to order the Respondent to pay an alimony of GHC5, 000.00 to the Petitioner. The next issue for determination is whether or not the Petitioner is entitled to a compensation of GH¢5,000 as alimony for the divorcing the Respondent. On this issue, section 20(1) of the Act 367 comes for discussion. The section provides that the court may order either party to the marriage to pay to the other a sum of money or convey to the other party movable or immovable property as settlement of property rights; or in lieu thereof or as part of financial provision that the court thinks just and equitable. My appreciation of section 20(1) of Act 367 is that before a court takes a decision, the overriding consideration is that the order has to be “just and equitable”. [See Beatrice Oye Plokhaar v. Sterian [2016] JELR 108100 (HC)]. Buttressing on the overriding consideration, it was held in Aikins v. Aikins [1979] GLR 223 as follows: “The Court was entitled under Section 20 of Act 367 to order lump sum payment and where the husband had capital assets sufficient for the purpose, the Court should not hesitate to order a lump sum, which, once made, could not be varied in the light of changing circumstances such as subsequent remarriage of the wife. The husband’s ability to pay was not merely to have physical cash, but it could also be determined by his ability to provide money by way of overdraft or loan and in the absence of full and frank information by the husband as to his financial position, the Court was entitled to draw inferences adverse to the husband as to his capacity”. This implies that in ordering a respondent to pay a lump sum to the petitioner, the court should not only consider physical cash available to him, but must also consider ability to pay. That is, whether the Respondent has capacity to apply for overdraft facilities or loan to settle it. In fact, I am compelled to yield to the Petitioner’s plea for the alimony she is seeking. I have gone through the evidence of the parties and established that the Petitioner has gone through a great deal of emotional woebegoing and mental anguish. From adultery by the Respondent, sexual thirst through neglect and loneliness ending in frustration and unhappiness. She has suffered this unwarranted physical and psychological trauma just because she offered her true love to the Respondent who rather misconstrued such priceless love as a cheap commodity, with all due respect. In fact, I cannot vary the amount of money the Petitioner is seeking as compensation for the Respondent’s mistrust and gross disrespect for the Petitioner as a woman and a wife; but at least to grant it as it is to soothe her troubled ego. One issue relative to the order for the alimony is whether or not the Respondent will be in the position pay the GHC5, 000.00 alimony. In the Petitioner’s evidence, when she was in a relationship with the Respondent, he was a pupil teacher. Therefore, she assisted him by going for a loan of GHC7, 000.00 of which the Respondent used part to fund his upgrading course at the UCC. Of course the Respondent denied ever receiving any such financial assistance. In other words, he was able to fund his education at the UCC by his humble self. This is a clear proof that the Respondent is a resourceful man who has the wherewithal to face any financial challenges such as payment of the alimony. It is also a fact that the Respondent is a teacher and on the government payroll. Therefore, the court would be right to take judicial notice that government workers have access to loan facilities. In that regard, it would appear weird if it was assumed that such a teacher is a man of straw who cannot afford paying GHC5, 000.00 as alimony to the Petitioner. He is more than capable. On the basis of the Respondent's demonstrable strong financial footing, the court shall order him to pay the GHC5, 000.00 to compensate the Petitioner. Issue 5: Whether or not custody of the two issues of the marriage be granted to the Petitioner or Respondent For the purposes of this Judgment, the court shall rely on section 43 of Children’s Act 1998 (Act 560) which speaks on child custody. Section 43 of Act 560 enacts that a parent, family member or any person who is raising a child may apply to a Family Tribunal for custody of the child. The import of this provision is that each party to this matter before this court has the right, as a parent; and/or relative to apply for custody of the children in issue where the need may arise. In determining whether to grant custody to either of the parties, the court shall first have recourse to the welfare principle under section 2 of the Act 560 which provides: “2. Welfare principle (1) The best interest of the child shall be paramount in a matter concerning a child. (2) The best interest of the child shall be the primary consideration by a Court, person, an institution or any other body in a matter concerned with a child.” In fact, this principle has been given prominence and reinforcement by many authorities in Ghana including Gray v. Gray [1971] 1 GLR 422; and Beckley v. Beckley [1974] 1 GLR 393. In Braun v. Mallet [1975] 1 GLR 81 for instance, the court spoke about the welfare and happiness of a child during dissolution of marriage. In that case the plaintiff, a national of the Republic of Germany and resident there, gave birth to a baby boy, Thomas. The defendant, a Ghanaian national also resident in Germany was the father of Thomas. The plaintiff was given custody of the child with limited access to the father. In 1974, the Defendant, on the pretext of taking Thomas on a shopping spree, flew him to Ghana. The mother proceeded to Ghana and applied for custody of Thomas. The court stated: “The welfare and happiness of an infant is of paramount consideration. In considering matters affecting the welfare of an infant, the courts must look at the facts from every angle and give due weight to the relevant material.” Explaining the decision in Braun case (supra), Author Frederica Ahwireng-Obeng in her book AT A GLANCE! CONTEMPORARY PRINCIPLES OF FAMILY LAW (at pp. 242 and 243) stated that the court took the view that as the natural father, the defendant had no right, merely by virtue of fatherhood to claim custody. The affection of mother for her child must be taken into account; and poverty per se was no reason for depriving a mother of custody when her character had in no way been impeached. (See Attu v. Attu [1984-86] GLR 745). In that regard, the court shall consider the evidence adduced vis-à-vis section 43 of Act 560 (supra). From the evidence on record, the two (2) issues of the marriage are minors with ages of Five (5); and Three (3) who live with the Petitioner at Duayaw Nkwanta and have been schooling there since they left the matrimonial home for the past three years or so. The Respondent on the other hand lives at Bechem and teaches at Dwomo. In his evidence, he has not indicated to the court whether he lives with another woman who has assured him of taking good care of the children. By what stretch of imagination can one assume that the Respondent would be in the position to take care of the children if custody of the children is granted to him? Thus, given the tender ages of the children of the marriage as earlier expressed; and relying on the Social Enquiry Report (SER), it would be most imprudent and professionally absurd to deny the Petitioner custody of the children; much as it would not best serve the interest of the children. In the circumstances, custody is hereby granted to the Petitioner with reasonable access to the Respondent. On the totality of the evidence by the parties vis-a-vis the law and authorities cited supra, the court has come to the conclusion that the Petitioner has gone through a trauma of a sort. Therefore, her desire to pull out of the marriage is constructive divorce. The court shall accordingly make the following orders: a. The marriage between Mr Frank Antwi Boasiako and Madam Yaa Damoah Amankwaa contracted on 3rd October, 2015 is hereby dissolved. b. Custody of the two children, Adepa Damoah Antwi; and Nkunim Nyarko- Abronoma Antwi, is granted to the Petitioner with reasonable access to the Respondent. That is, they are to spend part of the school vacations and one weekend out of the month with the Respondent when practicable. c. The Respondent and the Petitioner shall pay monthly maintenance fee of GHC600.00 for the children aforementioned; and same be shared pro rata at GHC400.00 and GHC200.00 respectively. d. Receipted school fees and medical bills shall be taken care of by the parties with Respondent and Petitioner paying 60% and 40% respectively. e. Both parties shall be responsible for the provision of shelter for the two children. The Respondent shall pay 60% while the Petitioner pay 40%. f. Five Thousand Ghana Cedi (GHC5, 000.00) cost awarded against the Respondent for the Petitioner. ……………………........……………… H/W KORKOR ACHAW OWUSU, ESQ. DISTRICT MAGISTRATE COURT BECHEM – AHAFO DATED 6TH JUNE, 2023 19