KORSAH VRS MANU (AR/KD/DC/A4/16/2023) [2023] GHADC 799 (2 October 2023)

CORAM: IN THE DISTRICT COURT HELD AT KODIE IN THE ASHANTI REGION ON MONDAY THE 2ND DAY OF OCTOBER, 2023 BEFORE HER WORSHIP CHRISTIANA ODARKOR BRUCE-ASHIRIFIE (MRS), THE DISTRICT MAGISTRATE. ABENA AGYEIWAA KORSAH H/No. Plot 7 Block ‘A” Buohu, Kumasi VRS KYEI MANU Unnumbered house at Kodie, Ashanti SUIT NO. AR/KD/DC/A4/16/2023 ]-PETITIONER ]-RESPONDENT JUDGMENT The parties herein got married under the Marriages Act 1884, CAP 127 on 4th of February, 2017 at the Light House Chapel international, Kumasi. The Petitioner is a civil servant and the Respondent is a journalist. They both have a daughter who is five (5) years old. CASE FOR THE PETITIONER On the 26th of June, 2023 the Petitioner, the wife, filed a Petition at the registry of this Court praying the court for a decree of divorce. The basis of her petition is that the marriage between herself and the Respondent has broken down beyond reconciliation due to the unreasonable behavior of the Respondent. Per the Petition and witness statement, the Petitioner asserted that the Respondent since the marriage has behaved in a manner that the Petitioner cannot live with the 1 | P a g e Respondent as husband and wife. According to the Petitioner, the Respondent at the onset of their marriage was fond of abusing her physically, verbally and emotionally at the slightest provocation. It is the case of the Petitioner that they have not lived together as husband and wife since September, 2019. She stated that the Respondent has failed/refused to maintain her and the only child of the marriage after their separation. Continuing her assertions and evidence the Petitioner made it clear that attempts by their family members to resolve their differences have proven futile. She stated that she does not have the interest and desire to continue with the marriage and therefore prayed for the dissolution of same. CASE FOR THE RESPONDENT In the Respondent’s answer filed on the 5th of July, 2023 and witness statement filed on the 3rd of August, 2023, he denied the allegations of unreasonable behavior levelled against him. According to the Respondent there has been continuous misunderstanding between himself and the Petitioner at the onset of the relationship but he never for once abused the Petitioner in any way. It is the case of the Respondent that he normally sends the Petitioner money for maintenance every month and also paid for the child’s school fees as and when the Petitioner requests. According to the Respondent he returned home one day from work only to find out that the Petitioner has packed all her belongings out of their matrimonial home and left with their child. 2 | P a g e He added that for years now he and the Petitioner has not lived together as husband and wife and therefore stated that he consents to the dissolution of the marriage. ISSUE At the end of the trial, the issue to be determined by the court are: 1. Whether or not the Respondent has behaved in an unreasonable manner making it intolerable for the Petitioner to live with him as husband and wife. 2. Whether or not the marriage contracted by the parties has broken down beyond reconciliation EVALUATION OF THE EVIDENCE AND THE APPLICABLE LAW Generally, the Matrimonial Causes Act, 1971 (Act 367) governs the dissolution of a monogamous marriage such as contracted by the parties in this instant suit. Even though it primarily covers dissolution of marriages contracted under the ordnance, the law permits marriages contracted under the other forms to have their marriages dissolved under Act 367. Any party to the marriage may apply for a dissolution of the marriage but the party is required to prove that the marriage has broken down beyond reconciliation per Section 1(2) of the Act. A Petitioner must prove one or more of the facts provided under Section 2(1) of Act 367 which provides as follows: “(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:— 3 | P a g e a. b. c. d. e. f. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent; That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; That the parties to the marriage have lived apart for continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted; That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition; That the parties to the marriage have, after diligent efforts been unable to reconcile their differences.” In this instant case the Petitioner founded his case on Section 2(1)(b) of the Act. Thus the burden of proof or persuasion is on the Petitioner to adduce sufficient, cogent and reliable evidence to support the allegations contained in her Petition in order for the court to arrive at the decision that the facts alleged exist rather than their non-existence. I am fortified to say so by reason of Section 11(4) and 12 of the Evidence Act, 1975 NRCD 323. Section 12 states as follows; 1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. 4 | P a g e In the case of GIHOC Refrigeration and Household Products Ltd vrs. Hanna Assi [2005-2006] SCGLR 458, it was stated that “since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue” I will first deal with the Petitioner’s allegation of the Respondent’s unreasonable behaviour which she asserts had contributed to the difficulties in their marriage. Under Sec 2 (1) (b) of MCA 1971, a Petitioner must prove that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent, to prove that a marriage has broken down beyond reconciliation. The burden is on the party who alleges unreasonable behaviour to prove it. The Petitioner must prove two things: Firstly, the conduct constituting the unreasonable behaviour on the part of the Respondent, and secondly the fact that he cannot reasonably be expected to live with the respondent as a result of the bad behaviour, as espoused in the case of Andrew v. Andrew [1974] 3All ER 643 In such a case, the objective test is applied. Thus whether or not the Petitioner cannot reasonably be expected to live with the Respondent is a question of fact for the court to decide. I will now deal with the issues as set above:- 1. Whether or not the Respondent has behaved in an unreasonable manner making it intolerable for the Petitioner to live with her as husband and wife. 5 | P a g e Unreasonable behaviour has been defined in English law as conduct that gives rise to injury to life, limb or health or conduct that gives rise to reasonable apprehension of such danger. Thus, actual injury does not have to be established but mere apprehension of such injury is enough so far as it has led to the break-down of the marriage beyond reconciliation. (Vide At a glance! Contemporary principles of Family Law in Ghana by Frederica Ahwireng-Obeng at page 111) In order to succeed on the ground of the alleged unreasonable behavior, it must be shown that the conduct reached a certain degree of severity. The conduct must be such that no reasonable person would tolerate such conduct or consider that the Petitioner should be called on to endure. See Hughes v. Hughes [1973] 2 GLR 342 In the case of Mensah vs Mensah [1972] 2GLR 198, the Court held that; “……the conduct complained of must be sufficiently grave and weighty enough to justify the finding that the Petitioner cannot reasonably be expected to live with the Respondent. Mere trivialities will not suffice. The parties must be expected to put up with what has been described as reasonable wear and tear of married life” See the case of Happee v. Happee and Another [1974] 2 GLR 186 in which it was held that the Respondent’s conduct was unreasonable and that the Petitioner was entitled to an order for dissolution of the marriage. Also, in the case of Riby-Williams v Riby-Williams (1964) GLR 538-545 the court stated that: “The conduct complained of must be grave and weighty and must go beyond the normal wear and tear of married life” 6 | P a g e It is to be noted that in all the cases cited the court came to that conclusion because detailed evidence was given to the specific several incidents that the Respondent had subjected the Petitioner to and vice versa. The Petitioner’s pleadings and evidence before this court is that the Respondent at the onset of their marriage was fond of abusing her physically, verbally and emotionally at the slightest provocation. It is the case of the Petitioner that they have not lived together as husband and wife since September, 2019. She stated that the Respondent has failed/refused to maintain her and the only child of the marriage after their separation. Thus the question is what evidence was led by the Petitioner to support these allegations of unreasonable behavior and others? The Petitioner did not lead any evidence whether it be documentary, pictorial or any other at the trial to prove the various allegations of unreasonable behaviors’. The law is very clear on the kind of evidence required when a party makes an allegation of fact in his pleadings. The rule does not change when it comes to matrimonial matters. A party who alleges a fact must prove it either by direct evidence or evidence from which the court can rightly infer that the facts alleged exists. One cannot mount the witness box and repeat the same allegations of fact without calling evidence to support same. Thus it behooves on the Petitioner to lead evidence of the numerous incidents in the marriage which made her conclude that indeed the Respondent’s behaviour has been unreasonable more so when the Respondent denied the allegations. The Petitioner therefore did not sufficiently prove her allegation of unreasonable behavior on the part of the Respondent. 7 | P a g e The Respondent, however, in his answer to the Petitioner’s Petition filed on the 5th of July, 2023 and in his witness statement consented to the dissolution of their marriage as he stated that there has been persistent misunderstanding between them from the inception of the marriage. Whether or not the marriage has broken down beyond reconciliation. From the evidence led before me, it is evident that the marriage between the parties has been severely strained. Their relationship has turned sour and all attempt to resolve their differences have proven futile not to mention the allegations and counter-allegations before this court. It is indeed apparent that the parties have not found common ground to reconcile their differences not even the existence of a five-year-old daughter in the marriage. In such a circumstance this court cannot exercise its powers under the law to assist the parties to reconcile their differences nor order them to go back to their families to be reconciled and so I will not press the matter any further. I am satisfied that there is ample evidence that the marriage between the parties is broken down beyond reconciliation. I consequently hold that the marriage which was celebrated between the parties on the 4th of February, 2017 has broken down beyond reconciliation and same is hereby decreed as dissolved under Section 1(2) and 2(1)(f) of the Matrimonial Causes Act (Act 367). MAINTENANCE The Petitioner also prayed the Court to compel the Respondent to maintain the child of the marriage. Section 1 of the Children’s Act, 1998 (Act 560) defines a child as follows: “a person below the age of eighteen years” 8 | P a g e Section 47 (1) of Act 560 also states that: 1. A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child. 2. For the purpose of this section, education means basic education. Maintaining and looking after the children is a shared responsibility and not solely the responsibility of the Petitioner but that of the Respondent also and therefore the Respondent is ordered to provide maintenance Gh¢500.00 a month with an upward adjustment of fifteen (15%) annually for the child of the marriage. This is to take effect from the 1st of October, 2023. The parties shall equally be responsible for the payment of their child’s school fees, all the hospital expenses that may be incurred as well as all other educational costs as and when they fall due. The Respondent shall also rent a two (2) bedroom house for the Petitioner and the child of the marriage until she attains the age of majority or until the Petitioner remarries, whichever event occurs first. This order is effective from October, 2023. CUSTODY OF THE CHILD OF THE MARRIAGE The Petitioner herein prayed the court to be given custody of the only child of the marriage. In the case of Braun vrs. Mallet [1975] 1 GLR 81 the court stated that: “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 every relevant material” 9 | P a g e It is also of importance to stress that the mother of a young child has priority in respect of the grant of custody over any other person provided there is evidence that she affords the child the requisite care and control that is required of a mother. In the circumstances of this case and considering the evidence led before me, it is clear that the Petitioner has effectively offered the child care and protection up till now. Indeed, it is clear that the Respondent is well aware of the capability of the Petitioner to take care of the child and thus has not challenged the Petitioner’s prayer for custody. Indeed, this court cannot hold otherwise considering and age and sex of the child. However, the father must also have the benefit of developing a special relationship with her. Consequently, I hereby grant custody to the only child of the marriage, Nana Akua Nyamedo Kyei to the Petitioner with reasonable access given to the Respondent. Pursuant to the above, I further order that the Respondent shall have access to the child during the school holidays(vacations) and on the weekends when he is in Ashanti Region. Or in the alternative: The parties are at will to continue with any arrangement they deem fit to enable the Respondent to have access to the child Each party is to bear his/her own costs. CHRISTIANA BRUCE-ASHIRIFIE, ESQ., (DISTRICT MAGISTRATE). PARTIES: PRESENT 10 | P a g e LEGAL REPRESENTION: BENJAMIN HALEEM S. M, ESQ. FOR PETITIONER 11 | P a g e