Benjamin v. Welu Civ App./71; Biron J. 2-D-71; 30/3

Benjamin v. Welu Civ App./71; Biron J. 2-D-71; 30/3

The respondent/wife filed a petition in the district Court claiming from the appellant/husband maintenance. Although the wife was prepared to resume cohabitation, the husband [not stated at the trial that he did [wish to live with her any more. He also submitted that the wife was not entitled to maintenance because she had deserted him. The basis of the husband’s argument was a letter written by the wife to him, requesting for a divorce. The trial magistrate took into account the fact that the wife failed to bear her husband children since their marriage in 1951, and the fact that the husband was now living with another woman who had borne him a child and construed the letter as merely explaining ‘her misery, i. e. her inability to bear her husband children’.

Held: (1) “With respect, I fully agree with the magistrate as to the construction he put on the letter. I accept the wife’s explanation which she gave in front of me – both parties appeared in person at the hearing of this appeal – that she was sick at the time and her husband had brought the woman Martha to her house and therefore she had written that letter in desperation. This letter by a sick woman in the particular circumstances in which it was written could be said to be on a par with her attempt to commit suicide, which was certainly an attempt to leave her husband.” (2) The magistrate’s finding that the husband was in desertion is fully supported and justified by evidence. (3) Appeal dismissed.