Khonje v Khonje (Matrimonial Cause 13 of 2000) [2002] MWHC 85 (3 July 2002)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MATRIMONIAL CAUSE NO. 13 OF 2000 BETWEEN: GOLICOLINKHONYE..............00.0ccceeeeeeeeeeeeeteteeeeeeeeeeeees PETITIONER -and- MABLEKAPIKAKHONGE.............::00::ceeeeeeeeeeeeeeeeeeeees RESPONDENT CORAM: TWEA, J. Msungama, of Counsel for the Petitioner E. Banda, of Counsel for the respondent S. P. Moyo, Official Interpreter JUDGMENT This is a petition for divorce on grounds of desertion and adultery. The respondent has cross-petitioned on grounds of constructive desertion and adultery. The Petitioner and the Respondent were married at the Office of the Registrar in Chingola, Zambia on 4th March, 1980. The Petitioner comes from Ephambuka Village, in Ekwendeni in Mzimba district. After their marriage in Zambia, they moved to Malawi, in ~ about 1981. They have resided in various townships in Lilongwe 2 and Blantyre. There are two children of this marriage, both girls, Wizaso and Fiskani age 20 and 17 years respectively. At the time of their separation they were living in Chinyonga township in Blantyre. | am satisfied that they are domiciled in Malawi. The parties did not call any witnesses apart from themselves. It was the petitioner's case that he met the respondent in the course of Christian activities. He was single and six years younger than the respondent who, by then, was a single mother of five children. He alleged that she, being older and more experienced, had a tendency of leaving the matrimonial home at the slightest argument. He asserted that their marriage was miserable because of her tendency to underate him. It was his evidence that in 1996 she left the matrimonial bed and that she had such a habit. He did not asked her why. They lived in the same house but in separate bedrooms. When she left the matrimonial home she left a note that she was leaving without saying where she was going and she also indicated that the children should remain with him. He did not pursue her as he was, in his own words, “sick and tired of pleading with her’. It was his evidence that in 1994 the respondent picked up a job with Chibuku Products as a sales lady. He told this court that after the respondent left the matrimonial home he learnt that she was having an affair with a Mr. Chikapa who also worked at Chibuku Products. He alleged that he saw Mr. Chikapa in the respondent car several times. He also alleged that the respondent also had an affair with a Mr. Mackenzie who also worked for Chibuku Products. He never asked her about the affairs. On his part he denied having had affairs with a Mrs Likupe and Miss Kamanga, or a Mrs Chinula. He also denied to have infected her with a sexually transmitted disease. However he admitted having an affair and living with a Mrs Chingakule since early 1999. 3 He asserted that this started after the respondent had left the matrimonial home. In cross-examination the petitioner admitted that they used to quarrel, argue strongly and sometime had fights although he denied beating her. He also admitted that their union deteriorated such that one of them had to leave as they could not live together. He also admitted that the respondent underwent surgery at Malamulo Hospital in 1996 and that she had her uterus removed but he denied that she was treated for a sexually transmitted disease. He also alleged that although he took her to the hospital, he did not read her medical report. The respondent in her evidence told this court that after their marriage in 1980, the petitioner and his relatives in Zambia did not appreciate his status as a married person. When she confronted him about this, the petitioner beat her up and she left the matrimonial home for two days. When they came to Malawi, the petitioner's sister came to visit. Then she had just given birth to their eldest daughter and they decided to go and show the baby to the people at the village in Ekwendeni. She alleged that while there she was told that she was too old for the petitioner. When they returned, because their baby was ill, the petitioner's sister reported that she was rude and lazy. The petitioner again beaten up and she left the matrimonial home with the baby for 4-5 days. She further alleged that she left the matrimonial home on 10th May, 1997 after she confronted the petitioner about his affair with a Mrs Likupe. She told this court that the petitioner told her that she could pack up and go and taunted her about her having children with other men. It was her evidence that she left the matrimonial bed to lodge in a different bedroom after she contracted a sexually transmitted 4 infection three days after having sexual intercourse with the petitioner. She told this court that she had abstained from having sexual intercourse with the petitioner when petitioner refused to go for treatment she left the matrimonial bedroom and lived in a different bedroom. She then went to Makwasa Hospital for treatment. She denied having had any affair with either Mr. Chikapa or Mr Mackenzie. She told this court that they were both her work mates. She said that she used to give lifts to Mr Chikapa because they both lived in Chiwembe. As for Mr. Mackenzie, she said that she associated with him when he was depressed following the death of his wife. She introduced him to her church and also allowed him to live in the house which her friends let her in Bangwe. Then, she had moved to Nkolokoti location with her friend. This then is the evidence before this court. It is clear from the evidence that this marriage had more downs than ups. The petition was presented on two grounds: desertion and adultery. | think it is best to proceed by determining the issues of adultery first. The petitioner alleged that the respondent had an affair with Mr Chikapa and Mr. Mackenzie. His evidence is that he saw the respondent with the said parties in a motor vehicle separately. He told this court that when Mr. Mackenzie came to his house, the children were also in the car. The rest of his evidence on this issue was hearsay. | place no value on such evidence. Adultery can rarely be proved by direct evidence. The respondent admitted associating with both Mr. Chikapa and Mr. Mackenzie but she stated that she associated with them as work colleagues and later, for Mr. Mackenzie’s, as a fellow worshipper. The assistance on lifts that she got or gave was in this light. Inthe case of Chilakolako vs Chilakolako and Chitokwe 9 MRL 355 @ 5 360 Villiera J as he was then, followed the principle in Ross v Ross (4) (1930) AL 7 that: “adultery is essentially an act which cannot be proved by direct evidence. It is a matter of inference and circumstances. It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people have been thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents, letters and diaries; or antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery may reasonably be assumed as a result of an opportunity for its accurence.” One has to ask whether seeing one’s wife in a car with another man driving, even to one’s house, is a circumstance that would give rise to an inference of adultery? The answer is obviously no in the absence of any other evidence. In the present case the petitioner admitted that he only came to know of the affairs after the respondent left the matrimonial home. He also admitted that he never went to the respondent’s house in Chiwembe and that he did not know whether the respondent lived together with Mr. Chikapa. He also admitted that he never went to Bangwe to see whether the respondent lived together with Mr. Mackenzie. It is also clear from his evidence that he did not know, and did not care, where the respondent lived after she left the matrimonial home. On the evidence before me | find that the petitioner has failed to establish adultery. | dismiss this ground of the petition. Coming to the evidence of the respondent on the allegations of adultery, | find that the evidence that the petitioner had an affair with 6 Mrs. Likupe and Miss Kamanga is all hearsay. | will place no value on this evidence. As to the evidence that he was also having an affair with Mrs Chinula, all that came out was that Mrs Chinula, who, it has been admitted, was a cousin of the petitioner went to the house of the petitioner. One can hardly say that this is evidence on which adulterous association could be inferred. The respondent told this court that Mrs Chinula herself told her that the “new Mrs Khonje”, referring to Mrs Chingakude, who was having an affair with the petitioner, had told her off. The inference that the respondent wanted this court to draw was that Mrs Chinula was admitting that she too was having an affair with the petitioner. It is my view that such an inference, is not justified in the circumstances. Jealous or fear of competition that would cause an illicit partner to be aggressive against any other female associating with the man. After all, the petitioner admitted in this court that he is having an affair with Mrs Chingakude and that they are now living together. | find that adultery with Mrs Chinula is not established. However, | find that there is sufficient evidence of the petitioner's adultery with Mrs. Chingakude. | now come to the grounds of desertion and constructive desertion. It is common case that the union in this case was riddled with difficulties. It has been admitted that in 1996 the respondent withdrew from the consortium of the petitioner, and lived in a separate bedroom. The petitioner told this court that he did not know why she did so, and alleged that she had such a habit. On the other hand the respondent said that they had differences and she abstained from having sexual relations with him because of the rumours about his affairs. Three days after resuming sexual relations with him she developed a sexually transmitted infection. When the petitioner refused to seek medical treatment she left the matrimonial bed and slept in a separate bedroom. Eventually she had a surgery which resulted in the removal of her uterus. They did not resume sexual relations and still slept apart. She said that the petitioner taunted her that she could park up and go. She therefore left the matrimonial home on 10th May, 1997 never to return. | bear 7 in mind that the petitioner told this court that the situation got to a point where one of them had to leave as they could not live together. He never disputed her evidence when she said that she kept asking him where she should go. | had the benefit of seeing both parties testify. It struck me as odd for a man not to ask his wife why she has left the matrimonial bed, let alone not find out why she had surgery. | had observed the demeanor of the petitioner in court, he is a forceful person with a very balanced mind. | do not believe, for one moment, that he was ignorant of the problem that made his wife leave the matrimonial bed or have surgery. Although the petitioner told this court that he did not know that his wife had contracted a sexually transmitted infection, | believe the respondent. | find that after she contracted the infection their association fell apart when the petitioner refused to seek treatment, and that the petitioner paid a deaf ear to her complaints and pleas charging that she could pack up and go. | am justified in my finding by the established fact that the petitioner never bothered to follow up where and how the respondent lived while as the respondent would come to the petitioner's home to check on the children. In the case of Nkhono vs Nkhono, 10 MLR 48, the court found that a spouse who insisted on practicing the religion of a proscribed sect was guilty of constructive desertion. In the present case | find that the behaviour of the petitioner to refuse medical treatment, let alone check up and telling the respondent that she could pack up and go forced her to leave the matrimonial bed and the matrimonial home. | find the petitioner guilty of desertion. It is my judgment therefore that desertion and adultery has been proved against the petitioner. | accordingly grant a decree nisi to the respondent of grounds of adultery and desertion by the petitioner. Other issues will be dealt with in Chambers. 8 Pronounced in Open Court this 3rd day of July, 2002 at Blantyre. JUDGE