BAIDOO VRS BAIDOO (A4/28/2023) [2022] GHADC 427 (30 October 2022)

IN THE DISTRICT MAGISTRATE COURT TAKORADI MARKET CIRCLE HELD ON THE 30TH DAY OF OCTOBER 2022 BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ SUIT NO. A4/28/2023 REGINA BAIDOO PETITIONER H/NO. PT 115 EAST TANOKROM TAKORADI VS DANIEL EKOW BAIDOO PT 125 DISCOVERY STREET KOJOKROM-TAKORADI RESPONDENT JUDGMENT The petitioner petitioned for dissolution of the marriage contracted between her and the respondent under Cap 127 on the 26th day of January 2003. After the marriage, the parties cohabited at Kojokrom with three children of the marriage namely, Daniella Esi Baidoo, Daniel Ekow Junior Baidoo, and Regina Esi Baidoo, 19, 15 and 13 years respectively. According to the petitioner, the marriage between her and the respondent has broken down beyond reconciliation and prays a decree of dissolution of same. The petitioner’s reason for the aforementioned view that the marriage has broken down beyond reconciliation is that, she avers, the respondent has for some time now, developed a strange character. He stays out in town for longer hours and refused to pick petitioners calls as well as getting irritated at the slightest provocation. Petitioner further indicated that the respondent has refused to have sexual intercourse with her for the past three years and although they share the same room, there is no communication between them which is causing her stress. According to petitioner she endured all the problems hoping and praying for better outcome however same proves futile. Families on both sides have tried to resolve their differences but all proved futile. According to the petitioner, the respondent has left the matrimonial home for the past three years. She was hoping for the respondent to return but he never did as such she cannot bear the pain any more. Petitioner avers, the marriage between her and the respondent has broken down beyond reconciliation and prays for a decree of dissolution of same. She prays for the custody of the three children of the marriage be given to the respondent with reasonable access to her. When the petition was served on the respondent, he filed an answer to same and cross petitioned for dissolution of the marriage contracted between him and the petitioner. Respondent avers the petitioner is his wife and they got married under the Cap 127 on the 26th day of January 2003. After the marriage, they cohabited at Kojokrom. According to the respondent, the marriage is blessed with three issues, one boy and two girls namely Daniella Esi Baidoo, Daniel Ekow Junior Baidoo, and Regina Esi Baidoo, 19, 15 and 13 years respectively. He avers, they have been living apart for the past three years. Respondent avers, the petitioner denies him sex, and refuses to cook for him and to wash his clothes. He further indicated that the petitioner is not ready to listen to him and rather rains insults on him. According to the respondent both families tried to resolve their differences but all proved futile. According to him, the petitioner in the presence of both families indicated since the respondent has left home, she has lost interest in the said marriage and do not wish to marry him again. Respondent avers, he left the matrimonial home because of the petitioners, behavior towards him. As such the petitioner has behaved in a manner that he cannot reasonably expected to live with her. According to him, petitioner has caused him much anxiety, distress and embarrassment in society as such he does not oppose to the dissolution of the marriage contracted between the parties. He however prays for the custody of the three children of the marriage be granted to him with reasonable access to the petitioner. The issue that I am called upon to determine in this suit is whether or not the marriage between the parties has broken down beyond reconciliation. Although both parties seek ancillary reliefs, in their petition and cross petition respectively, the ancillary relief is subservient to the decree of dissolution of the marriage as such same cannot be granted until the relief for dissolution is granted. I shall therefore determine the issue for the dissolution of the party’s marriage before I deal with the issue of ancillary relief. The question is, has the marriage between the parties broken down beyond reconciliation, if so then then petitioner is entitled to a decree of dissolution of their marriage. It is trite that a court hearing a petition for divorce, is obligated to carefully consider all the evidence before it as a mere assertion by one party that the marriage has broken down. The court must consider whether the evidence adduce situate the case of the petitioner and respondent cross petition for dissolution of marriage within any of the grounds in section 2 of the MCA. Per section 1(2) of the Matrimonial Causes Act, Act 367 hereafter referred to as the MCA, the sole ground for the grant of divorce is that the marriage has broken down beyond reconciliation. For the purpose of showing that the marriage has broken down beyond reconciliation, any of the facts enumerated under section 2(1) (a) to (f) of the MCA must be proved by the petitioner and or the respondent in their respective evidence. This was explained in the case of MENSAH V MENSAH 1972 2GLR 198-209 by HAYFRON BENJAMIN J (as he then was) at page 202 where the respected judge said “From the relevant sections of the Matrimonial Causes Act 1971 Act 367 namely sections 1(2) and 2(1) and (3) the court ought to grant a divorce only where there has been a breakdown of the marriage beyond reconciliation. It is obligatory on the petitioner to prove one or more of the specified facts in order to establish that the marriage has broken down beyond reconciliation obviously on all evidence. Having establish these facts to such a standard as to lead the court to make a finding that these facts exist, the court can still refuse to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation.” The evidence before the court shows that the parties has not lived as husband and wife for a continuous period of three years and have not have any conjugal relationship for the past three years in addition, both parties admit their respective families have tried to resolve their differences but same proved futile. As such I so find in terms of section 2 (1) (d) of the MCA. The court finds that per the evidence before it, both parties refused to settle the petty issues between them thereby leading to a wear and tear of their married life. The court further finds that not only has the respondent behaved unreasonable in this marriage leading to the breakdown of their married life, the petitioner also behaved unreasonably in the marriage all leading to a wear and tear of their married life. The court per the evidence before it, so find in terms of section 2 (1) (d) and (f) of the MCA. In the case of KOTEI V KOTEI (1972) 2GLR 172, the court held as follows: “Once the facts are proved bringing the case within any of the facts set out in 2(1), a decree of dissolution should be pronounced unless the court thinks otherwise……..” On the totality of the evidence and conduct of the parties, I am satisfied that the marriage has broken down beyond reconciliation. In view of the foregoing this court accordingly decree a dissolution of the marriage contracted between the parties on the 266h day of January 2003 per the marriage certificate filed to this court with certificate no 01/03 per license number SEAMA 21/2003 hereby cancelled. In respect of the ancillary reliefs, both parties are ad idem on the fact that the custody of the three children of the marriage be granted to the respondent with reasonable access to the petitioner. In. view of the foregoing, this court accordingly grants custody of the three issues of the marriage namely Daniella Esi Baidoo, Daniel Ekow Junior Baidoo, and Regina Esi Baidoo, 19, 15 and 13 years respectively to the respondent with access to the petitioner. The petitioner has access to the children during weekends, holidays and school vacations. There will be no order as to cost. SGD CATHERINE OBIRI ADDO ESQ REPRESENTATION PARTIES APPEARED PRO SE 5