Kulego-adjanie Vrs Bidahor [2022] GHADC 104 (18 November 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT KOFORIDUA THIS FRIDAY THE 18TH DAY OF NOVEMBER, 2022 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH SUIT NO: A4/40 /2022 BRIGHT KWAKU KULEGO-ADJANIE .......... PETITIONER OF H/NO: A83, LA - ACCRA VRS MALWIN YAYRA BIDAHOR OF ADWESO 2 STREAMS, KOFORIDUA …………………………………………………………………………………………… ………. RESPONDENT JUDGMENT …………………………………………………………………………………………… Never have I bemoaned decreeing a divorce between a married couple than I have felt in this instant action considering the sociological effects such a decree has, pertinently on the child of the marriage. In such moments, the recollection of God’s decree against divorce in Malachi 2:15-16 saturates my mind. The Lord gave this message to the prophet Malachi in the above mentioned verses; 15. Didn’t the Lord make you one with your wife? In body and spirit you are his. And what does he want? Godly children from your union. So guard your ear; remain loyal to the wife of your youth. 16. For I hate divorce! Says the Lord, the God of Israel. To divorce your wife is to overwhelm her with cruelty. So guard your heart; do not be unfaithful to your wife… However, it is trite learning that, no court can compel parties to continue to marry. Thus, it appears that, if the parties themselves decide to seek divorce contrary to the biblical position if they are Christians, then the court will have to give its blessing to it. Sadly, in this case, this court has had no other alternative than to resort to this trite learning. The Petitioner in his petition for divorce filed on 10/01/2022 and subsequently amended on 12/04/22 `prayed for the sole relief for an order for the dissolution of the ordinance marriage celebrated between the parties on the 26th of October, 2019 with Certificate Number, KDC 322/19. The Respondent resisted the action by a Response to the Petition filed on 31/01/22 and cross petitioned for the following reliefs; Dissolution of the Ordinance marriage contracted between the parties Alimony of GH₵ 20,000.00 Custody of Brielle Alice Adjanie Maintenance of GH₵600.00 per month for the child An order for Respondent to assume full responsibility of the child’s education, clothing, health and any other incidental expenses The matter was subsequently set down for trial. When the case came up for hearing, the Petitioner testified and called 2 witnesses and the Respondent testified personally and called no witness. Then summary of the Petitioner’s entire evidence is as follows; That the parties celebrated their customary marriage on 17/10/2019 and married under Ordinance on 26/10/2019 at ICGC Jesus Temple, Kdua. That some few weeks to the marriage ceremony he got to know that the Respondent had some time past been in a love relationship with one of his brothers but since the preparations were far advanced her proceeded with the marriage. That subsequent to the marriage he had several strange dreams ann spiritual attacks which upon consulting a man of God he was informed that it was due to the fact that he and his brother had had sexual intercourse with the same woman. That due to these dreams he reported to his family elders who admitted same to be a family taboo and performed some cleansing rituals on himself and his said brother; Stephen Atiemo who testified at PW1. That subsequently, the customary marriage was dissolved by the Petitioner’s family by the presentation of drinks to the Respondent’s parents. The said brother; PW1 testified and corroborated the testimony of the Petitioner and also indicated that due to his work schedule he could not attend the customary marriage ceremony which was done on a Thursday and it was after that that he realised that the Respondent was the lady who the Petitioner was getting married to but since preparations were far advanced, he remained silent. He also admitted the love affair he ever had with the Respondent in 2015 and indicated that he also was experiencing bad dreams as well but had also been cleansed. PW2, Alex Doe Adjanie, the father of the Petitioner also testified and corroborated the testimony of the Petitioner and indicated that upon being informed by the Petitioner of his bad dreams and spiritual attacks which he associated with the fact that PW1 had had a prior love affair with the Respondent. He indicated that he consulted the family elders who informed him that the Petitioner and PW1 had committed a taboo and had to be cleansed. That he led the Petitioner and PW1 to be cleansed initially and after the dissolution of the traditional marriage, he escorted them for the final cleansing as well. Mention must be made that at the end of Petitioner’s testimony, the Respondent did not subject him to any cross-examination. The summary of Respondent’s testimony is as follows; That the Petitioner is her husband and they contracted their marriage ordinance Cap 127 on 26/10/2019 at ICGC Kdua. That when she met the Petitioner in 2018, she mentioned it to him the she ever dated a guy called Stephen Atiemo which Petitioner told her was a distant relative and as such will not pose any problem in getting married to her. Respondent also stated that the Petitioner’s family got to know about her earlier affair with PW1 yet they agreed because the relationship was a distant one. That it was 3 months after she delivered the issue of the marriage that the Petitioner sent his uncles and auntie to inform my parents that he had been experiencing some nightmares because of the earlier affair Respondent had with his cousin. That both families agreed to allow the marriage proceed only for another uncle of the Petitioner to dissolve the marriage between us after which Respondent rented a single room and moved all my belongings there. It is worthy of not that in the evidence of the Respondent she testified to certain facts which came to her knowledge in respect of Petitioner dating other ladies but all of it was hearsay evidence which is presumably inadmissible and as such the Court shall not attach any weight to it. From the above, the basis of this Petition according to the Petitioner is that he encountered spiritual attacks because of his marriage to the Respondent and that the parties have been separated for the past 4 years. The law in respect of dissolution of marriages in Ghana has been spelt out under the MATRIMONIAL CAUSES ACT, 1971 (ACT 367). Section 1(2) of the Act 367 provides that; (2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 2—Proof of Breakdown of Marriage. (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts:— (a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or (c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or (d) that the parties to the marriage have not lived as man 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 such 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 notwithstanding the refusal; or (e) that the parties to the marriage have not lived as man 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 differences. (2) On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent. (3) Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation. In essence, before the Court will go ahead to dissolve any ordinance marriage, it must be proven that the marriage has broken down beyond reconciliation. In meeting this threshold, there must be proof that any of the conditions stipulated under section 2 of Act 367 were met. I must confess that since there is not yet any rules of evidence in the Republic regarding proof of transcendental matters, this court cannot ascertain the veracity of any of the spiritual claims by the Petitioner and as such this court shall concentrate solely on the physical aspect of the evidence to determine this matter as reasonably as it sees fit; and it is on this note that I render an unqualified apology to the Petitioner that unfortunately, the drafters of the law did not factor matters of spiritism as proof of marriage having broken down beyond reconciliation. Having ruled out the matters of transcendence, what remains as a ground of divorce is that the parties have not lived together as husband and wife for more than 2 years which is a factor to prove that the marriage has broken down beyond reconciliation and it is on that basis that this Court shall proceed to dissolve the marriage contracted between the parties on 26/10/2019 and accordingly cancel the certificate issued thereof. Now, in respect of Alimony of GH₵20,000.00 which was cross petitioned for by the Respondent, it is legally known as financial provision which has been provided for under Section 19 of the MATRIMONIAL CAUSES ACT, 1971 (ACT 367) and it states thus; Financial provision for spouse The Court may, whenever it thinks just and equitable, award maintenance pending suit or financial provision to either party to the marriage, but an order for maintenance pending suit or financial provision shall not be made until the Court has considered the standard of living of the parties and their circumstances. (Emphasis mine). Now, the question which requires an answer is does the Respondent deserve the said financial provision considering the evidence in totality? Will it be just and equitable to award her such financial provision? Throughout the testimony of the Petitioner, the sole reason for his Petition is because of the said spiritual attacks he claims to have experienced as a result of his marriage to the Respondent. Whats more, the Petitioner indicated in no uncertain words that he knew of the said affair before the marriage but went ahead with it and now he turns to rely on the same thing he had no issue with to seek for the dissolution of the marriage after 4 years; a marriage which has produced one child who is going to suffer the consequences of this divorce. We cannot ignore the plight of the Respondent, a young woman who has had to bear the brunt of the Petitioner’s decision to end this marriage. To my mind, what is just and fair under these circumstances is for the Respondent to be awarded the amount she seeks from the court and the court accordingly awards financial provision of GH₵20,000.00 to the Respondent payable by the Petitioner. In respect of the child of the marriage who is about 2 years old now, custody shall be granted to the Respondent with reasonable access to the Petitioner. The court consequently orders that monthly maintenance of GH₵600.00 be paid by the Petitioner to the Respondent for the upkeep of the child till this court orders otherwise. The Petitioner is ordered to cater for the full educational and medical expenses of the child until otherwise ordered by this Court. There will be no order as to costs. SGD NANA AMA DABBAH FYNN NKANSAH MAGISTRATE 5