Mavis Akua Sika Kessewaa Tetteh Vrs Anthony Kwesi Adaboo [2022] GHACC 240 (21 December 2022)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON 21ST DAY OF DECEMBER, 2022 BEFORE HER HONOUR KIZITA NAA KOOWA QUARSHIE, CIRCUIT COURT JUDGE SUIT NO. C5/332/2022 MAVIS AKUA SIKA KESSEWAA TETTEH VS ANTHONY KWESI ADABOO ========================================================= JUDGMENT ========================================================= The Petitioner Mavis Akua Sika Kessewaa Tetteh filed the instant petition for divorce on the 4th of July, 2022, she prayed Honourable Court for a dissolution of her marriage celebrated between the Respondent Anthony Kwesi Adaboo and herself on the 29th of April, 2017 at the Church of Pentecost, Nungua – Accra. This Honourable court will consider the circumstance of this particular case and apply the appropriate law in determining whether the Petitioner can be granted her prayer. The Matrimonial Causes Act 1971, Act 367 under PART ONE entitled Divorce states: 1. A petition for divorce may be presented to the court by either party to a marriage 2. The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. According to the Petitioner; she married the Respondent under Cap 127 in the year 2017, after which the two co-habited at Sakumono. There was no issue to the marriage. Petitioner premised this petition on the grounds that soon after their marriage she found out that Respondent had a wife and children. Respondent when confronted left the matrimonial home in May, 2021 and failed to return. At the same time Respondent refused to have sexual intimacy with her since May, 2021. She cited this conduct as unreasonable behaviour for which she cannot continue to endure the marriage. After the Respondent was served with the Divorce petition he filed a consent to dissolution of marriage on the 3/10/2022 giving the court FULL consent to the dissolution of the marriage between the parties. On the 10th of November, 2022, the court admitted the witness statement of the petitioner filed on the 3rd of November, 2022 as her Evidence-in-Chief. Petitioner repeated all the averments in the petition and prayed the Honourable Court for a Dissolution of the marriage and that the parties should bear their own costs. The duty of the court as set down by the law section 1(2) of the Matrimonial Causes Act, 1971 Act 367 is to determine whether the marriage contracted between the parties has broken down beyond reconciliation. The court makes reference to Act 367 which lists the facts to be considered to prove breakdown of marriage. “Proof of breakdown of marriage” For the purpose of showing that the marriage has broken down beyond reconciliation, the petitioner shall satisfy the court with one or more of the following fact; a. That the Respondent has committed adultery and that by reason of the adultery, the Petitioner finds it intolerable to live with the Respondent; b. That the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; c. That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; d. That the Parties to the marriage have not lived as husband 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 the 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 despite the refusal; e. That the parties to the marriage have not lived as husband 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 difference. In this particular case, the court notes that: a. The Petitioner cited unreasonable behaviour from the Respondent b. In compliance with, section 2(1) d, it is also clear that the Respondent consents that the marriage between the parties be dissolved. The peculiar facts contained in the petition state that Respondent was previously married with children and had not informed Petitioner about same. Upon interrogation by Petitioner, Respondent abandoned the marital home since May, 2021 and has not had any sexual relations with Petitioner. As earlier noted the parties married under Cap 127 which means their marriage is monogamous. “The Advanced English dictionary defines monogamy as marriage to one person at a time”. Respondent therefore can only be married to only Petitioner and doing the contrary constitutes a criminal act under the laws of Ghana. As that ascertion has not been proved because Respondent failed to avail himself pending this case at Circuit Court, the court will not dwell on it, but move on to look at other factors to determine unreasonable behaviour. The Law of Family Relations in Ghana by William Cornelius Ekow Daniel page 308 states the test of unreasonable behavior as follows: “All that the Petitioner is required to do in this context is to give particulars or the extent of the behavior of the Respondent which has necessitated the present action of the petition. Thereafter, he is required to establish that as a result of that he cannot reasonably be expected to live with the Respondent”. In the case of Hughes v Hughes {1973} 2GLR 342 Sarkodee J, in his judgment said; to succeed the petitioner must show that the Respondent’s conduct reached a certain degree of severity that no reasonable person would tolerate”. In Opoku-Owusu v Opoku-Owusu {1973} 2 GLR the court held as follows: “A wilful refusal by one spouse to have sexual intercourse might entitle the other party suffering to leave if in all the circumstances of the case it could properly be regarded as grave and weighty and if it had an adverse effect on the health of the other spouse”. Again in the case of Danquah v Danquah (1979) GLR 371 @ 361, Osei Hwere J, said: “Act 367 imposes on the court a series of restriction which is unique. For having established by section 1(2) that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation and having by section 2(1) laid down those facts, the proof of which shall prima facie, show that the marriage has so broken down, section 2(3) checks the court from rushing in to grant a petition for divorce unless the court is satisfied on all the evidence that there has been an irreconcilable breach own of the marriage” This court after a careful look at the facts and evaluation of the evidence notes that both parties of the marriage want a dissolution of the marriage. The Petitioner who initiated this action itemized the fact that Respondent is allegedly married already (which allegation if true at best makes her current marriage void) with children and has withdrawn sexual intimacy from her since May, 2021. The court is satisfied that this marriage which may probably only “exist in name” has also broken down beyond reconciliation. The court makes an order for a divorce decree on this 21st of December, 2022. The Marriage Certificate No. AMA/101702430/2017 dated 29th April, 2017 is hereby cancelled. The Petitioner is to apply to the Registry for a Divorce Certificate and the Entry of Judgment and serve same on the Respondent. The parties are to bear their own costs. H/H KIZITA NAA KOOWA QUARSHIE CIRCUIT COURT JUDGE 4