DONKOR vs. DONKOR [1983]DLHC2118

Date	1983-05-30
Suit No.
Citation No.	[1983]DLHC2118

OSEI-HWERE J.

T. A. NELSON-COFIE FOR THE PETITIONER.

I. QUANSAH FOR THE RESPONDENT.

[1983]DLHC2118
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													<main id="main" class="content" style="min-height: 60rem" >DONKOR <o:p></o:p>vs. <o:p></o:p>DONKOR <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1982-83] GLR 1158<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:
30 MAY 1983<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">

T. A. NELSON-COFIE FOR THE PETITIONER. <o:p></o:p>

I. QUANSAH FOR THE RESPONDENT.<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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
proceedings in this petition for dissolution of marriage are part-heard before
this court. The petitioner had already called three witnesses and she was in
the course of giving her evidence-in-chief when the respondent’s counsel
announced that his client would not contest the petition provided the
petitioner would consent that the court expunged from the record her testimony about
the respondent’s alleged matrimonial offences. He had consulted the
petitioner’s counsel in anticipation and so he readily gave the petitioner’s
consent. The view was expressed in court that the court cannot force marriage
on parties who no longer desire to live together as man and wife.<o:p></o:p><o:p>&nbsp;</o:p>The
Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under
the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the
dissolution of their marriage just for the asking. The petitioner must first
satisfy the court of any one or more of those facts set out in section 2 (1) of
the Act for the purpose of showing that the marriage has broken down beyond
reconciliation. Section 2(3), which is pertinent, provides that even if the
court finds the existence of one or more of those facts it shall not grant a
petition for divorce unless it is satisfied that the marriage has broken down
beyond reconciliation.<o:p></o:p><o:p>&nbsp;</o:p>As I had
the occasion to indicate in Danquah v. Danquah [1979] G.L.R. 371 the petitioner
is under a duty not only to plead any one or more of those facts in section
2(1) of the Act but he must also prove them. Equally the court is under a
statutory and positive duty to inquire so far as it reasonably can, into the
charges and counter-charges alleged. In discharging the onus on the petitioner,
it is immaterial that the respondent has not contested the petition, she must
prove the charges and, flowing from all the evidence before the court, the
court must be satisfied that the marriage has irretrievably broken down.<o:p></o:p><o:p>&nbsp;</o:p>To
exclude the evidence of the petitioner would amount to the absence of any
attempt to prove what she alleges in her petition. I have read the evidence of
the three witnesses called by the petitioner. If their evidence is intended to
show that the Session of the Central Presbyterian Church of Resurrection
attempted to effect reconciliation which failed, then the petitioner has gone
completely off the mark. So far as the evidence goes, it shows that “session”
tried to advance reconciliation but that it did not come to any conclusion
either because the matter was in court and they thought they could not
interfere or that they felt that the parents of the petitioner had to be
consulted.<o:p></o:p><o:p>&nbsp;</o:p>If all
the evidence there is about an attempt to reconcile, which the petitioner can
put before the court, is what took place at “session” then I, for my part, in
compliance with the provisions of Act 367 will order that the whole matter be
referred to the Session of the Central Presbyterian Church of Resurrection,
Accra, to attempt a reconciliation and to report back to the court. After all,
there is no body more fit to try and patch up what cracks there exists in their
conjugal relationship than the church which united the parties in holy
matrimony sitting in session. I would reject the application of the
respondent’s counsel because its effect, if allowed, would be that without
proving any matrimonial offence and without proof that the marriage has broken
down beyond reconciliation, the court can, nevertheless, decree a divorce.<o:p></o:p><o:p>&nbsp;</o:p>I direct
that the registrar of this court writes to the Session of the Central
Presbyterian Church of Resurrection, Accra (through their secretary) inviting
them to try to effect a reconciliation between the parties in this divorce
proceedings and to report the result of their attempt to the court at the next
adjourned date on 19 July 1983. A copy of the above ruling should accompany the
said letter. The session minutes book, which was tendered in court, should also
be returned to “session.”<o:p></o:p><</main>