BARNES vs. BARNES [1971]DLHC2093

Date	1971-01-15
Suit No.
Citation No.	[1971]DLHC2093

EDUSEI J.

FORSON FOR THE PETITIONER.

E. B. SAKYI HUGHES FOR THE RESPONDENT.

[1971]DLHC2093
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													<main id="main" class="content" style="min-height: 60rem" >BARNES <o:p></o:p>vs. <o:p></o:p>BARNES <o:p></o:p>[HIGH COURT,
SEKONDI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 202<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
15 JANUARY 1971.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

FORSON FOR
THE PETITIONER.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>The
wife-petitioner and her respondent-husband were married on Christmas day in
1966 at the Anglican Christ Church at Cape Coast. The evidence shows that soon
after the marriage the petitioner and the respondent settled at Kumasi. There
is one issue of the marriage, a girl, called Emma Barnes who was born on 20
October 1967. It does seem that the marriage of this couple was blissful and
happy until May 1968, when trouble started to set in to destroy the wedding vow
taken before the alter of God where the man had promised the wife to comfort
her and, forsaking all others, to keep to her only so long as both of them
shall live. On or about 18 May 1968, the petitioner returned from Cape Coast
where she had given birth to their daughter only to be told by the respondent
that she must pack up her belongings and leave the matrimonial home because he
was married to another woman. Though this second wife was not in the
matrimonial home there was a photograph of the respondent and this second wife
displayed in the living-room of the matrimonial home and, in my view, this was
sufficient to break the heart of any wife. This photograph further demonstrated
that the respondent really meant what he said, i.e. that he was having an
affair with that other woman. Be that as it may, the petitioner refused to
leave the matrimonial home, whereupon the respondent threw her belongings out
and beat her up. The petitioner went and reported the matter to the Rev. Canon
Ahmoah who came to settle the differences between the petitioner and her
husband. As soon as the Rev. Canon Ahmoah had left, the petitioner was
subjected to further beatings and her personal belongings were again thrown out
by the respondent. This was too much for any woman to bear and so she left the
matrimonial home for Cape Coast and she has stayed away from the respondent
ever since.<o:p></o:p>I am
satisfied on the evidence that the physical acts of the respondent, beating up
his wife, throwing out her belongings and displaying a photograph of the
respondent and the other woman in the living-room of the matrimonial home were
matters that constituted cruelty in the circumstances, for it has been held
that a course of conduct when looked at as a whole does constitute cruelty
although no act by itself amounts to cruelty: see Jamieson v. Jamieson [1952]
A.C. 525, H.L.<o:p></o:p><o:p>&nbsp;</o:p>From the
evidence it was the conduct of the respondent that forced the petitioner to
leave the matrimonial home and therefore it could be said that the respondent
was in constructive desertion. Section 2 (1) of the English Divorce Reform Act,
1969 (c. 55), which came into force on 1 January 1971 states as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
court hearing a petition for divorce shall not hold the marriage to have broken
down irretrievably unless the petitioner satisfies the court of one or more of
the following facts, that is to say — 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;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;(c) that the respondent has deserted the
petitioner for a continuous period of at least two years immediately preceding
the presentation of the petition; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(d) that
the parties to the marriage have lived apart for a continuous period of at
least two years immediately preceding the presentation of the petition and the
respondent consents to a decree being granted; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(e) 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.”<o:p></o:p>