Nynzu Vrs Amihere [2023] GHADC 75 (13 July 2023)

IN THE DISTRICT COURT HELD AT NKROFUL ON THURSDAY 13TH DAY OF JULY 2023, BEFORE HER WORSHIP AWO AMISSAH FRENCH ESQ. AS MAGISTRATE. SUIT NO: A4/01/23

ESTHER NYANZU

PETITIONER VRS.

JOHN AMIHERE

RESPONDENT

PETITIONER PRESENT

RESPONDENT PRESENT

PARTIES SELF REPRESENTED

JUDGMENT The Petitioner, who is a seamstress and a resident of Esiama petitioned this Court to dissolve the Customary Marriage between the parties which has subsisted for the past 19 years, praying the Court to: a. Dissolve the marriage, and b. To grant custody of the three minor issues of the marriage namely Ishmael Amihere, Samuel Amihere and Theresa Amihere to the Petitioner. The Petitioner’s case briefly is that Petitioner and Respondent have been married under customary law for the past 19 years out of which marriage bore three issues namely Ishmael Amihere, Samuel Amihere and Theresa Amihere. settlement of the matter. Petitioner avers that Respondent has not been remitting her and he always behaves unreasonable towards her by picking quarrels with her and that Petitioner, failed to cater for her when she went into coma and nearly died leading to the loss of her pregnancy at the time. She therefore prayed that the marriage be dissolved and custody of the three children granted to her. Petitioner called no witnesses. Respondent on the other hand denied all allegations of unreasonableness on his part but averred that he indeed catered for Petitioner during her days of ill health and that throughout the pendency of their marriage, he has supported the Petitioner in various ways including putting up a house for her. Respondent however prayed the Court to dissolve the marriage

and grant all properties acquired during the marriage to petitioner; however, petitioner should be ordered to give back to him the land on which Petitioner has put up her tailoring shop. Respondent called a sole witness Beneekyi Amnor (DW1), his uncle, a fisherman who testified that Petitioner once presented him with a local gin to pour libation on her behalf and pacify the gods for her which he obliged. DW1 further averred that a month later, Petitioner approached him to seek divorce from the Respondent which DW1 declined but warned the Petitioner that should she go in for another man, while remaining married to the Respondent, DW1 would charge Petitioner and her new man for adultery. In deciding this matter, I’ll quickly observe that although section 41(1) of the Matrimonial Causes Act, 1971 (Act 367) makes the Act applicable to monogamous marriages, section 41 (2) of Act 367 makes the law applicable to marriages other than monogamous marriages. Thus the Court has jurisdiction to hear this matter. Section 41 of the Matrimonial Causes Act , 1971( Act 367) provides as follows: Section 41—Application of this Act. (1) This Act shall apply to all monogamous marriages. (2) On application by a party to a marriage other than a monogamous marriage, the court shall apply the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and

good conscience, the Court may— (a) have regard to the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements; (b) grant any form of relief recognised by the personal law of the parties to the proceedings, either in addition to or in substitution for the matrimonial reliefs afforded by this Act. (3) In the application of section 2 (1) of this Act to a marriage other than a monogamous marriage, the court shall have regard to any facts recognised by the personal law of the parties as sufficient to justify a divorce, including in the case of a customary law marriage (but without prejudice to the foregoing) the following— (a) wilful neglect to maintain a wife or child; (b) impotence; (c) barrenness or sterility; (d) intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship; (e) persistent false allegations of infidelity by one spouse against another: Provided that this subsection shall have effect subject to the requirements of justice, equity and good conscience. (4) In the application of this Act to any marriage under customary law, the words "child of the household" shall be construed as including any child recognised under customary law as a child of the parties. Further, Section 22 of the Matrimonial Causes Act, 1971 (Act 367) states as follows: “22. (1) In all

proceedings under this Act, it shall be the duty of the court to 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 any proceedings under this Act, make any order concerning any child of the household which it thinks reasonable and for the benefit of the child. (3) Without prejudice to the generality of subsection (2), an order under that section may— (a) award custody of the child to any person; (b) regulate the right of access of any person to the child; (c) 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.” From the pleadings filed by the parties in respect of the matter, it is evidenced that the marriage was blessed with three issues namely Samuel Amihere, Theresa Amihere and Ishmael Amihere. I note that as at the time this petition was being heard Ishmael Amihere was eighteen years old( 18 years). However, though on the borderline of attaining the age of majority, in view of the fact that he is still a student currently enrolled at the Nkroful Agric Senior High School, the Court would duly take him into consideration in issuing its custody and maintenance Orders. It is also evidenced that the children are currently in the custody of the Petitioner. I therefore grant Custody of the three issues namely

Ishmael Amihere, Samuel Amihere and Theresa Amihere to the Petitioner. Further to this, I grant to the Respondent, generfous access to the said children especially on weekends. Now, in the light of Section 22(3)(c) of the Matrimonial Causes Act, 1971 (Act 367) as well as Sections 47 and 49 of the Children’s Act, 1998 (Act 560) regarding the maintenance and care for children, I make the following care and maintenance orders in favour of the children of the marriage under consideration: a. Parties are ordered to bear the cost of provision of shelter for the children and Petitioner in 50:50 ratio. b. The Respondent is ordered to maintain the children with GH¢ 800 every month. c. The Petitioner shall augment the maintenance fee with groceries and any other items the children may need. d. The Respondent shall pay all educational bills of the children except for feeding and transportation bills which shall be borne by the Petitioner. e. Parties are to bear the cost of all clothing needs of the children being ordinary and festive clothing in a 50:50 ratio. f. The Petitioner shall ensure that the National Health Insurance cards of the children/issues are renewed when due. In the event that the children/issues have any health condition which is not covered by the Scheme, the Petitioner shall ensure that the children receive the best of medical care and the payment in full of such

medical service rendered shall be made by the Respondent. The parties are advised to provide all necessaries of life, health and education for their children. The only issue for determination therefore is whether or not the parties’ marriage has broken down beyond reconciliation. . Now, Section 2(2) of the Matrimonial Causes Act, 1971 (Act 367) provides that; “On a petition for divorce, it shall be the duty of the court to inquire, so far as is reasonable into the facts alleged by the petitioner and the respondent.” The Court is thus required to establish from the evidence whether the facts support the claim by the Petitioner that the marriage has broken down beyond reconciliation. The Court’s duty therefore is to critically consider the facts in evidence and determine whether or not the marriage has broken down beyond reconciliation. Section 2 of the Matrimonial Causes Act, 1971 (Act 367) states 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:— (a) That the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or (c) that the respondent has

deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or (d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or (e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The Court has to therefore analyze the evidence on record to find out if any one or more of the facts in Section 2 of Act 367 is made out in order to establish that the parties’ marriage has in fact broken down beyond reconciliation. Petitioner has said that the Respondent has behaved in such a way that she cannot reasonably be expected to live with him and that the Respondent has caused her much anxiety and distress as she fears she would lose her life if she continues to stay with the Respondent. This claim, I’m afraid is

unsubstantiated. However, her claim of Respondent’s failure to remit herself and the children would hold in that the Court, upon an invitation extended to the children of the marriage to engage with them on happenings as between their parents, found that same was the situation and that their father failed to either remit them at all or would sometimes remit them with meagre sums upon persistent demands. For a fact, Ishmael Amihere, the eldest on admitted that while in school, several requests made to his father, the Respondent for pocket monies yielded little or no results. Samuel Amihere for his part indicated that his father had enrolled him as an apprentice at Respondent’s motor repair shop at Esiama near the cemetery and that Respondent would remit him with paltry sums whenever he went there to work outside school hours. Thus in my opinion, subsection 3(a) of section 41 of Act 367 has been established as Respondent has willfully neglected to remit the children of the marriage. It is indeed custom for a man, who is customarily adjudged as the head of the home to maintain his wife and children; failure to do so constitutes a breach of his responsibilities even under the customary law. What I rather glean from the evidence on the record is that Petitioner is frustrated from long years of carrying a greater percentage of the financial burden in maintaining the family on grounds

of Respondent’s irresponsibility. This has bred unrest as between the Petitioner and the Respondent, affecting their marital relationship. There is no gainsaying that the horse has already bolted as between the parties, who are thus unable to resolve their differences. Section 2(1)(f) of Act 367, in my opinion is thus satisfied as parties are simply unable to settle their differences. The parties herein, having clearly shown from the evidence on record that they cannot resolve or reconcile their differences and live together as husband and wife, this Court being guided by the evidence on record, accordingly finds so. It is no longer in doubt that the parties cannot reconcile their differences. Thus, from the fact of the parties’ irreconcilable differences, I hold that the marriage celebrated between the parties has broken down beyond reconciliation and I dissolve the said marriage this 13th day of July, 2023. Accordingly, a Divorce Certificate is to be issued to each party. In view of the fact that Petitioner has not requested for any financial compensation, I’ll decline to pronounce on same. Also, as parties led no evidence as to any properties of the marriage, I’ll equally decline to pronounce on same. Petitioner is however to continue occupying the land on which her tailoring shop is situated as per the terms of grant. I’ll award costs of Eight Hundred Ghana Cedis (GH¢ 800) in favour of the Petitioner and against the Respondent. SGD H/W: AWO AMISSAH FRENCH DISTRICT MAGISTRATE, NKROFUL 13TH JULY, 2023