Patel v Patel (Civil Cause 577 of 1979) [1980] MWHC 25 (24 May 1980)

IN THE HIGH COURT OF MALAWI AT BLANTYRE CIVIL CAUS 2 Noe 517 of 1979 BETWEEN: LILLIAN ESTELLA PATSL aF are) @ Be 68 Sa BE PHTITICNSE and CIARLES PATEL ere Peete =< oe ww we EESPO! DENT Coram: JHRE, J. For the Petitioner Alufandika of Counsel Fespondent in person, unrepresented Court Clerk: Kadyakale: Court Eeporter: Kelly Lillian Bstella Patel petitions this court for the dissolution of her marriage with Charles Patel on the grounds of cruelty. The parties were married at the office of the Registrar Gereral's Tepartmert by the Registrar’ Gereral on the 30th March 1974. Both of them were single ard they come from Machinza and Margochi districts respectively. Both of them are Malawians. Sirce the celebratior of the marriage the parties have lived and co-habited at Kanjedza. They have two issue of the marriage, ramely, Mercy Patel born or the 17th October 1974 and Carol Patel borr or the 26th September 1977. On the evidence before me I find that the parties are domiciled in Malawi ard that this court has jurisdictior to ertertain the petitior. The evidence of cruelty comes from the petitioner herself, supported with two witnesses... . The respordert does rot actually dery these acts of cruelty. In his long statement in court he seems to present his grievarces to this court that his wife had provoked him either by insulting him wher he warted to have free time or that she was uncomfortable when he returned late from his rocturnal escapades and he really did rot dery the acts of cruelty charged by the petitioner. The eviderce of the petitiorer is that for a period of three years since the celebration of the Marriage the parties lived a happy life. However, the trouble started in 1977, the first incicent being that when the couple was invited to a wedding party ard after they had had a lot of drink she asked him to return to the matrimonial home. He was unwilling to do so and she took her mother in the car to drop her at her home, so as she [was 7 a 2. wes driving around to Kanjedza she found her husband lying in the middle of the road, she was shocked it being nearly midnight, she thought he was dead. Hewever, wher she came out of the car she found he was alive and brought him into the car. They started driving home but he was very difficult indeed in the car. He then hit her and accused her of misbehavirg. She started screaming. The fight was stopped by seIverts, she ther went and hid herself, he slept until the rext mornirs. There does not seem to have been any incident the next morning. In September 1977 the petitioner was admitted at the Queen Elizabeth Central Hospital ir Blantyre and after ar operation she did not wish to stay in the hospital and asked for permission to go to her home. She was allowed by the doctor and was asked to attend as an out-patient. Wher she wert home she informed her husband and he agreed. However, he failed to turn up to collect her to take to the hospital. “Wher she missed two days the respondert came anc when she asked him he slapped her and the matter ended there. He deried however in his answer to the petition that he slapped her. He stated in court that the car had broken down, that was the reasor why he did not go to pick her up. I am inclined to believe the Tespencent's story rather than that of the petitioner on this particular question. I, May 1979 both parties returned from work for lunch. The husband produced ar incoms tax assessment and began grumbling, stating that it must be paid by the petitioner. He threw it into her face. He again got a tomato sauce bottle ard threw it to her but it missed her. He told her to pay the income tax. When he had firished his lunch and his temper cooled down they both went for work. He picked her up from work at 4 o'clock and they went home. She then left to go to her mother's place. I believe the petitioner's story that this was the treatment she received and then she wert to her parents homs, came back to the matrimonial home by 9 o'clock and locked herself Up. The following morning she went with her father and mother tc their farm in Namwera. When she came back to the matrimonial home there was trouble and the parents were called because he threatered to kill her. She was only lucky because both the Chairman of tho Party and the house servant helped her out. I accept her evidence. There is also another incident in Jpne irvolving her husband, the respordent. I believe what she tole the court. Firally in August 1979 there was a big party at the house of the petitioner. This was a farewsll perty ir honcur of the peti- tioner's sister, who was leaving for the United Kingdom. Tyey started drinking and eating fairly early ir the evening until the next morning around 1 a.m. One of the guests, My. Limbani, wished to leave and the couple as required by tradition tcok the Limbeni's out of the house to see them into the car. When the Limbani's were about to Zo the petitioner and the respondent returned to the house, he held her by the right hand ir a sort of loving marner and went behind the house taking the other door, he started beating her, raining blows on her, she was unconscious. Spe was then taken away, shc realised she was ir Ndirande in the houso of My. Limbani. The following /day -3— day she attended at Queen Elizabeth Hospital and documents have been produced. This eviderce too is uncontraverted by the respondent. All he says ir his reply to the petition is that he was provoked. He doses rot touch it in evidence at all. After this incident the petitioner left the matrimonial home and went to stay with her father ard mother. She has rot sirce returned to the matrimonial home. This in a rutshell is the eviderce for the petitioner and I have already tcuched or the respondent's deferce, which is not matcrial. However, I have sericusly considered all the irciderts apert from the one ir August, and 1 fird that with the exception of the August incident the rest were condoned. lo evicence was led by counsel to show that there was no condonatior at all. Counsel said that he relied or the words of the petitiorer to the effect that she wants a divorce and according to ccunsel this negates cordonation. With respect this is far from the law ard counsel is well advised to acquairt himself with corndonation as contained in FAMILY LA™ by BROMLEY (3rd edn.) pp.135-144. A classical and ecarlisst definition of concona- tion is that by Sir Cresswell Cresswell, who defined it as:- "Blotting out of the offence imputed, so as to restore the offendirg party to the same position as she or he occupied beforn the offence was committed." And the moderr. definition of condonation is contained in Bernstein v. Eernstein (1893) p.292 by Lopes, L,J. who said:- “Condonation ... in my judgment mears the complete forgiveness and blotting out of a conjugal offerce followed by cohabitation, the whole being done with full knowledge of all the circumstances of the past offence forgiven." Applying these principles to the facts I think it is clear that the lady each time there was a fight, brutal or gertle, she woulc leave for a while to hor parents home, who did rot live very far away, and after the parties had discussed th: matteor they would reconcile and she would return home. Certainly this is the evidence of Mrs. Karin, who spoke of the second incident as narrated above. So the evidence is such that the rest of the acts complained of, while they constituts cruelty, were in my view condoned. However, the same cannot bo saic of the ircidert of August 1979. Cruelty was cefined in the famous case of Gollins v. Scllins by Lard Foaree as followa:- "It is impossible to give a comprehensive definiticn of cruelty, put when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, 1 think, cruelty if a reasonable persor, after takirz due account of the temperament and sll the other particular circumstances, would consider that the conduct complsired of is such that this spouse sould rot be called on to endure it." Ir these circumstances the d-fence is provocation. I can hardly fird any excuse for the behaviour of the respordent towards the petitioner on that fateful right. After the party had gone on well he started brutally beating hr. Il car hardly see any evidence or excuse for such type of conduct. In my view the conduct is such /that -4— thet it car, be termed crucl and there is no excuse for it whatsoever. She has rot condoned it. She left for her mother's place and rever came back. il am satisfied on the evidence that she has proved her case on the balance of probebilities. I grant a In these circumstances the petition succeeds. dissolution of her decree risi in favour of the petitioner for the marriage with the respondent. Costs of the petition to the petitioner. I adjourn to chambers the question of custody and mainterance of the children. Pronounced in open court this 24th day of May 1960 at Blantyre.