John v. Claver, Civ. App. 22-M-70; 7/12/71; Jonathan Ag. J.

 

John v. Claver, Civ. App. 22-M-70; 7/12/71; Jonathan Ag. J.

Appellant brought divorce proceeding against her husband on the grounds of cruelty and desertion. The district court dismissed the petition. The parties were married in 1960 according to Christian rites. It was established that after about 5 years of the marriage the husband took to beating his wife and had on occasions threatened to kill her. She finally left the matrimonial home in 1966 with her 3 children on the request of her husband. The trial magistrate expressed the view that the instances of the husband beating his wife which were proved were isolated acts which did not amount to legal cruelty. His decision was also influenced by the fact that the acts of beating took place after the wife had returned to her father’s house. Counsel for the appellant attacked this holding as wrong in law.

Held: (1) “In [counsel’s] view a single act of cruelty can amount to a matrimonial offence entitling a spouse to divorce. I think that is a correct view provided, however that the act proved, and the onus is a heavy one, is “grave and weighty” and is injurious to the health of the petitioning spouse. In the present case, there were quite a few incidents which the learned magistrate appears to have accepted as proved. He considered, however, that they were isolated. That may have been so. But I think the justice of the case required that such charges as were proved and accepted should be taken together in considering if they were rave and weighty and entitled the appellant to the divorce she sought. It made no difference, in my view, that the acts or most of them were committed while they were living apart. As was held in Gollins vs. Gollins, an English case and affirmed by the Eat African Court of Appeal in its decision in Nunzio Collarossai vs. Michelina Collarossi as reported in 1965, E. A. L. R. at page 129, where cruelty is a ground of divorce, it must be proved beyond reasonable doubt firstly, that the act complained of is of “a grave and weighty nature” and secondly, that the health of the petitioner has thereby been impaired or there is a reasonable apprehension or injury to her health.” (2) “The incidents would seem to indicate quite clearly that the respondent was a man given to violence and I am of the view that, had the trial court properly

            Directed itself it ought to have found that the acts complained of which it seems to have found proved, were grave and weighty such as the appellant could not be expected to put up with. I would also hold that although it was not stated in the evidence the acts must have impaired her health. (3) “On the ground of desertion also the petition ought to have been granted. It was undisputed that he asked her to leave the matrimonial home which she did. That was desertion. He claimed, however, that he had subsequently made efforts aimed at reconciliation. The trial magistrate found that was so. The onus lay on him to show he had genuinely made such efforts thereby determining the desertion. The court’s finding was based on the respondent’s claim that he had made such efforts but it was significant that he did not call any evidence in support of such claim. The appellant admitted that a priest had intervened but the respondent would not promise to desist from his habit of heavy drinking which invariably led to violence. If that was true, and there was reason to think it was, desertion could not be said to have been terminated.” (4) Appeal allowed.