Jyesu Vrs Opare [2022] GHADC 79 (20 April 2022)

1 IN THE DISTRICT COURT, HELD AT GOASO ON THE 20TH APRIL, 2022 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE ANGEL GABY JYESU PETITIONER SUIT NO. A4/1/22 VRS SALOMAY OPARE RESPONDENT PETITIONER PRESENT RESPONDENT ABSENT NO. LEGAL REPRESENTATION FOR THE PARTIES This is a proceeding under the Matrimonial Causes Act, 1971 of Act 367. JUDGEMENT The parties have been married for nine (9) years and had two issues in the marriage. Namely: (a) Twumasiwaa Angel … 8 years (b) Peal Ayeyi Opare Abea Peng … 4 years On the 2nd November, 2021 the Petitioner filed legal proceedings seeking a divorce. The Petitioner prayer was formulated in the particulars of his petition as follows: (1) An order for dissolution of the Ordinance marriage between the parties. The Respondent filed an answer and prayed for the following orders and reliefs: (a) Dissolution of the marriage (b) Access of the two issues of the marriage during holidays (c) Recovery of cash the sum of Two Thousand Ghana cedis (GHc2,000.00) being money the Petitioner sought from Respondent since 16/02/2021. The court referred the matter to both parties to see their families for settlement but they told the court that all efforts to make amends by both families on two occasions have all proved futile and the Petitioner was interested in the marriage but unfortunately the Respondent is pregnant for another man. Dotse JSC in GLADYS MENSAH V. STEPHEN MENSAH [2012] 1 SCGLR 391 quoted Lord Denning in his book, “LANDMARKS IN THE LAW” Butterworths, 1954, writes at page 176 “on change in attitude of the British people to Divorce” as follows: “….. There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One parent families abound.” The learned Supreme Court Judge stated that the above quotation can equally be said to be applicable to the Ghanaian society as well. THE PETITIONER’S EVIDENCE The parties got married under the Marriage Ordinance (Cap 127) nine years ago and cohabited as husband and wife at Duaso Upper Denkyira District at the Central region and had two issues in the marriage. According to the Petitioner the Respondent was doing her attachment at Duaso District Assembly and was later made permanent employee and sought for transferred to Dormaa Ahenkro District Assembly Office in 2020 and he rented three bedroom apartment for them but his work was stationed at Woromumuso so he is also at Woromumuso in Goaso Ahafo region and paid a regular visit to the Respondent and the children at Dormaa Ahenkro. The Petitioner contended that the Respondent called him from Dormaa that she wanted to acquire plot of land at GHc7,000.00 and he told the Respondent to wait so that they can invest the money in business and used the profit to acquire the plot but Respondent refused and later told him she is no more buying the land. He contended that he paid a visit to them at Dormaa Ahenkro and when the Respondent returned from work became furious of seeing him and ignored him without greetings. He then inquired from her attitude and she told the Petitioner that it was he who has denied her of his attention hence her attitude towards him. According to the Petitioner the Respondent told him that she has decided to manage her own affairs without bordering the Petitioner. He contended further that that night he wanted to have sex with the Respondent and refused him and boldly told him that when she travelled to Bibiani she had sex with another man and that she Respondent is no more interested in the marriage and therefore wanted a divorce. He then informed the family of the Respondent about her conducts and she rendered some apology and when he returned to Womomuso in Goaso then called the Respondent and she told him that she is attending a funeral but unknown to the Petitioner the Respondent rather went to her concubine she is having amorous relationship with him at Bibiani. He told the court that he lost his father and the Respondent even read the biography of his father from there the Petitioner did not heard from the Respondent again only to be told that she has gone to the concubine at Bibiani with his two children and he made a follow up to ascertain the truth and lo and behold he met his wife with the other man and the children and took the children out to buy some biscuits for them and return them to the Respondent in the concubine’s house. He informed the family of the Respondent about the sudden change and the Respondent also responded that she is also not interested in the marriage and the family brought some drinks to cause the customary marriage hence the dissolution. As he speaks the Respondent has given birth to a baby girl for the other man. He is praying to the court to grant him the custody of the two children of the marriage as the Respondent has no time for the children and the Respondent in her cross-petition has requested for access to the children on holidays. No cross-examination by the Respondent. THE RESPONDENT EVIDENCE It is the Respondent case that the Petitioner does not have time for her because they are not living together as man and wife. She stated that the Petitioner work is in Goaso and she also work at District Assembly at Dormaa and barely did they meet together as man and wife and any time she wanted to visit the Petitioner in Goaso he then give her some excuses hence her amorous relationship with the other man because the Petitioner is also a womanizer hence the divorce. The legal issues that fall for determination are as follows: a. Whether or not the marriage has broken down beyond reconciliation. b. Whether or not there is unreasonable behaviour on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. c. Whether or not the Petitioner is entitled to the relief sought Section 14 of the Evidence Act, 1975 (NRCD 323) which regulates the reception and evaluation of evidence provides as follows: “……. Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Before I examine the evidence adduced at the trial, it is pertinent to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) as follows. Sections 1(2), 2(1)(b)(d) and (3) of Act 367 provides as follows: "1(2) the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2(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:- (b) that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; (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. (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." Upon a careful survey of the evidence there is no doubt that the parties have not lived as man and wife since 2020. On the evidence the Respondent has given her consent to the divorce of the marriage due to her adultery and other behaviours which has frustrated the marriage even though the Petitioner had wanted to continue the marriage. From the evidence on record; the parties have lived together happily under one roof as husband and wife at Duaso Central region since 2019 until the Respondent was transferred to Dormaa Ahenkro and the cracks set in the marriage in 2020. Going by this, it therefore means that the parties lived together for nine years before they separated. The Respondent did not ask for any financial provision from the Petitioner and did not give evidence on the loan the Petitioner own to her. In determining whether to grant custody to the Petitioner or Respondent, it is said that the welfare of the child should be the fundamental or paramount consideration. This principle has been given statutory backing in all the statutes relating to children in this country and case laws including GRAY V GRAY [1971] 1 GLR 422 and BECKLEY V. BECKLEY [1974] 1 GLR 393. Also, in the case of ATTU V. ATTU [1984-86] GLR 745, Brobbey J (as he then was) held as follows: “In this country, there can be no permanent or immutable order of custody because the Matrimonial Causes Act, 1971 (Act 367), per section 27 (1) empowers the court to rescind or vary any order of custody of any child as it thinks fit. There is no precondition on the rescission or variation, save that it should be made in the best interest of the child concerned”. On the other hand, the Respondent has lost interest and love in the marriage due to the distance that existed between them and the refusal of the Petitioner denying her sex ever since she started her amorous relationship with the other man. As I have stated above, the Respondent has also given her consent to the dissolution of the marriage and that she cannot reasonably be expected to live with the Petitioner. In the circumstances, I rely on sections 2(1) (b) (d) & (f) of Act 367 and grant the dissolution of the marriage filed on 24th November, 2021. The children in the marriage are already in the custody of the Respondent’s sister as the Respondent attest to it and the Respondent is asking for an access for the children to visit her during their holidays. Once the children are with the Respondent sister then the custody of the two children is granted to the Petitioner. I make the following orders: a. The Petitioner is given custody of the two (2) children of the marriage (Twumasiwaa Angel and Peal Ayeyi Opare Abea Peng) and reasonable access to the Respondent during vacations and returned the children a week to the reopening of the school. b. The Petitioner should continue to maintain and pay the school fees and medical bills of the two children of the marriage and also provide them educational needs and other necessaries of life. c. The Petitioner to pay GHc2,000.00 to Respondent as a loan he took from her. ……………………………………… HW MAGDALENE THOMPSON DISTRICT MAGISTRATE