White v White (Civil Cause 144 of 1985) [1987] MWHC 20 (2 July 1987)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 144 OF 1985 BETWEEN: NIRMALA COSTLEY-WHITE .........0c8006 PETITIONER ~ AND - ERNEST DAVID COSTLEY-WHITE ....... oe RESPONDENT Coram: UNYOLO, J. Msiska of Counsel for the Petitioner Respondent present, unrepresented Namvenya, Official Interpreter Longwe, Court Reporter An OR conway en me Game men cere GARR Sem the Gone cee Gy cau en ins A cee Se UE em ee ee tee ee ee ee we mee mee ee oe oe ge JUDGMENT The petitioner, Nirmala Costley-White, prays for the dissolution of her marriage to the respondent, Ernest David Costley-White, on the ground that since the celebra- tion of the said marriage the respondent has treated her with cruelty. The respondent denies this allegation and in turn cross-petitions for the dissolution of his marriage to the petitioner also on the ground of cruelty. This counter allegation is likewise denied by the petitioner. The petitioner and the respondent were married on the 28th August, 1981 at the offices of the Marriage Officer in the then City of Salisbury, now Harare, Zimbabwe. A certificate isrs:ed after the marriage has been exhibited and it is evident that this was a foreign marriage. I am however satisfied from the available facts that this was a valid marriage and that the parties were legally married. After the celebration of the marriage the parties lived and cohabited together in Salisbury (Harare) and later in Blantyre upon their return to Malawi. There are two children of the marriage. I am satisfied on the evidence that the parties are domiciled in Malawi. I remind myself at the outset that the standard of proof in divorce cases is slightly higher than mere proof on a preponderance of probabilities although, however, there is no requirement that such proof should reach the standard required in criminal cases, i.e. proof beyond a reasonable doubt. 2G eis ee EES I «hall daeal firSt with the petition. Several jnoigente Of cruelty are pleaded. Some of these relate to matters which took place when the parties were living’ together but before the celebration of the marriage. With respect I will ignore these in this judgment. The starting point will be the year 1983 after the petitioner and the respondent had arrived in Malawi from Zimbabwe. The petitioner testified that on their arrival in Malawi she and the respondent went to stay with her parents at Mapanga. The respondent was unemployed then and could not afford to procure a house of his own. Kindly, the petitioner's parents allowed the petitioner and the respandent te came and stay with them at their premises in a house in the backyard. It was in the petitioner's evidence that the respondent is a man of ungovernable temper and that not infrequently he raged and fumed against her for no good reason at all. She said that she could hardly reason with him and that indeed he always, surprisingly, demanded an apology from her. The petitioner went on to say that on several occasions the respondent ordered her out of the matrimonial home... The first of these concerns is an incident when she and the respondent were still living in Mapanga with her parents. She was not sure about the date but said on that occasion the respondent violently otdered her out of the house. She ran to her father's house and stayed several months. She said she was scared because the respondent threatened to beat her. The petitioner told the court further that later the respondent left Mapanga and went to live in a house he had procured at Naperi, in the City of Blantyre. She remained behind with her parents and it was only after the respondent he? brought a clergyman and said that he had experienced a Spiritual Rebirth, or had been "Born Again" to use a familiar expression, that she changed her mind and went to join the respondent at Naperi. Thereafter the couple lived happily for some 6 months, In the meantime she became pregnant. Then the respondent relapsed into his temper again. Things changed drastically. Relations chilled again. The respondent wanted her out of the matrimonial home. She complained. She was 7 months in the family way then. The clergyman was again called to come and mediate. The petitioner said it was only when she told the respondent she would take their son who was young then that the respondent changed his mind. There was evidence concerning a third incident. That occured on Christmas Day in 1984. The petitioner said that there was a misunderstanding. Then the respon- dent flew into a fury. He threatened to throw her out of the house unless she apologised to him. He then hit her on the eye using his hand and she sustained bruises. She suffered pain. She was not hospitalized though. She said that although there was no blame tha: attached her in the incident she took the matter with divaity and continued to stay in the matrimonial home simply because she wanted to try and save the marriage and again there was the child. Sf ween cee Thers was a further incident, the fourth. That ecoyred on the 19th January, 1985. It was a Saturday. She and the respondent were in the house. Then she heard a knock. She went to peep to see who is knocking. She was then dressed in a nightie. The respondent did not like this. He said she was naked ard she should not have gone to the door in that kind of dr-ss. He demanded an apology from her and then worked himself up and said she should leave the house. She asked for time until the following morning. She then went to sleeo in her son's bedroom and closed the door. Thereupon tne respondent went to take a knife to open the Jcor. She was scared stiff. The door was opened. The respondent trooped in and violently pulled her hair. Eventually he told her to put on her slippers and ordered her tc c¢, > with him to her brother's house in the neighbouring locacion in Mount Pleasant. They walked there. It was at 8 p.m. It was that incident that broke the back of the camel, so to say. The petitioner has not gone back to the matrimonial home since. The petitioner said that there was a further incident. This involved their little son. She testified that the respondent one day hit the little boy so badly that he sustained bruises and a swollen cheek. The boy was very young then, about 2 years old. He was also sick at the time. She said she was present at the time and felt very hurt indeed. Such was the petitioner's evidence in support of her case. She was the only witness. While on this aspect it is to be observed that the petitioner was not cross- examined by the respondent. Not even a Single question was put to her. Perhaps I should, I think, point out that the respondent was fully aware of his right to cross-examine the petitioner. He also appreciated what came out in the testimony of the petitioner. He however chose, deliberately and knowingly, not to cross-examine her. It appeasS he took the view that the petitioner's evidence even if it was accepted fell short of establishing cruelty in the legal sence. However whether or not this is so is precisely the question the court will have to determine in this case. I now turn to the respondent's evidence in so far as the petition is concerned. The respondent was brief. He simply referred the court to his answer and said that with the exception of the incident of the 19th Jarvary, 1985, all the other incidents mentioned by the petitioner were condoned. Condoned, I suppose, by the fact that the petitioner continued to cohabit with him even after, and inspite of, the alleged incidents. With regard to the incident of the 19th January the respondent denied having assaulted the petitioner. He referred the court to his answer to the petition where he avers that he was shocked to see the petitioner walk to the outside door of the house dressed only in a see-through nightie and that when he tried to remonstrate with her she became upset and sulked the whole day and into the night. The respondent admitted in his evidence having taken the petitioner to her brother in Mount Pleasant. He said that he did so -~4- inorder that the petitioner should "cool off". He also wanted to avoid further arguments or injury for that matter, so the respondent told the court. When cross—examined the respondent denied having pulled the petitioner's hair. He said that he merely seized hold of it. And concerning the incident on Christmas Day in 1984 the respondent denied beating up the petitioner. He said that he merely pushed her. He also conceded that she sustained a bruise under her eye as a result. Finally the respondent said he was at all material times provoked by the petitioner. The respondent called five witnesses. Frankly I was at a loss and puzzled why some of the witnesses were called. I though that in so far as the case here is concerned they were not useful witnesses at all. Anyway our law gives a party a right to call witnesses and I supposed the respondent was perfectly entitled to exercise that right and I would not blame him at all. It was only DWi, Mrs. Ruth Ascroft, and DW3, Legion David Njoka, whose evidence touched on the matters alleged in the peti- tion. Both these witnesses said that they did not observe any bruises on the petitioner's face either on Christmas Day 1984 or any other day. With respect I do not see how the evidence of the two witnesses on this aspect helps the respondent's case since he himself admitted both in his answer and in his evidence that he did, using the respond- ent's own word "push" the- petitioner and that as a result she sustained a bruise under her eye. Either the witnesses did not see the bruise or they told the court a lie. Be that as it may, my task now is to review the evidence and decide whether the allegations of cruelty made by the petitioner have been proved, The first observation to be made here is that the petitioner was a very impressive witness. She gave her evidence in a cool and dispassionate manner. With respect I have no difficulty whatsoever in accepting her evidence. Indeed I have already observed that she was not cross-examined and that she therefore emerged unchallenged and unscathed in her evidence, It is also to be noted that there does not seem to be much dispute about the incidents alleged by the petitioner. Put briefly, I accept the petitioner's evidence completely. Now, let me say something about the law. Before a court can find a husband guilty of cruelty towards his wife, it is necessary for it to be satisfied that he has either inflicted bodily injury upon her or that he has conducted himself towards her so as to render future cohabitation more or less dangerous to her. See Natho versus Natho, Civil Cause No. 62 of 1983 (unreported). Or, what amounts to the same thing, the husband's conduct must be of such a character as to have caused danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger. It was so held in England in the celebrated case of Russel -vs-Russell (1895) p.315. What emerges is therefore this: the court will give relief on the merits and facts in each particular case, bearing in mind the above-mentioned observations. Reverting te the case in hand, two incidents in my judgment stand out. First it is the incident on Christmas Day in 1984 when the petitioner was assaulted by the respon- dent causing a bruising about her face. Secondly, there was the incident on the 19th January, 1985, when, inter alia, the respondent broke into the room the petitioner was sleeping, using a knife, then pulled her by the hair and forced her to come with him to her brother's house some distance away at night. They went there by foot. It was the unchallenged evidence of the petitioner that she suffered considerable pain and was put in fear on both these occasions. On these facts I am satisfied that the respondent was guilty of cruelty, in the legal sense, on each of these two occasions. With regard to the other incidents it appears to me with respect that all these achieve to establish i that the respondent is truly a man of ungovernable temper and, I think, he did actually show that side of his charac- ter even during the hearing of this case. It is common ease ‘he marriage between the petitioner and the respond- ent wa: an unhappy one and, I think, that these latter incidents simply underline that state of affairs. I am not satisfied that singly those incidents amount to cruelty. All in all I would give the respondent the benefit of my doubt on this aspect. To recapitulate I have found that the respondent was guilty of cruelty against the petitioner first on Christmas Day in 1984 and on the 19th January, 1985. The matter does not however end there. Two points were taken by the respondent. First he contended that he was provoked. Secondly, he said that in so far as the incidents prior to the 19th January, 1985 were concerned the same were condoned by the petitioner. I will take the first point first. Here it is to be observed that the petitioner denied in her evidence in chief having ever provoked the respondent. With respect, the respondent was not able to substantiate the allegation on this point and indeed I would prefer the petitioner's evidence to that of the respondent. There is no merit in this allegation and I dismiss: it outright. Next, I have to ask myself whether there was condonation. It is trite condonation is forgiveness and reconciliation. It is a restoring of the offending party to the same position he occupied before the matrimonial offence was committed. And the question posed in the instant case is whether the petitioner must be held to have condoned the cruelty committed by the respondent on Christmas Day in 1984 since she continued to cohabit with him thereafter. Pausing there it is to ke observed that the effect of cohabitation is held less stringently on the wife since she is more sub potestate, more inops concilii, she may entertain more hopes of the recovery and reform of the husband, See Latey on Divorce, 14th Ed. p.148, para. 262. The petitioner's evidence on this aspect was that she stayed on with the respondent simply because she wanted to give the marrfage a chance to succeed. She was also concerned about their first born child who was very young at the time. I believe her and do not, therefore, think that this particular act of cruelty was condoned. Indeed I would go on to say that even if it was condoned the same was revived by the subsequent act of cruelty committed on the 19th January, 1985. In the result I find that the petitioner has proved her case against the respondent and I find no bar to grant- ing her a decree. Accordingly, I pronounce a decree nisi that the marriage between the petitioner and the respondent be dissolved, I now turn to the cross-petition. Several allegations were made by the respondent in the cross- petition. The respondent also adduced evidence but as I have already observed I prefer the petitioner's evidence to that of the respondent. Indeed even if believed I do not think that the evidence would sustain a charge of cruelty in the legal sense. Accordingly, the cross- petition fails and is dismissed. The respondent addressed the court on the question of custody of the two children of the marriage. It is to be noted, however, that there already is an order on this aspect which was made by Mtegha, J. on the 13th March, 1985. There, my brother Judge ordered that the petitioner should have custody of the children and added that either party w was at liberty, after the determination of the main case, to apply to have the said order varied or altered. The respondent is therefore advised to go back to that other court if he is minded to proceed on this aspect. Finally the respondent is condemned in costs of these proceedings. PRONOUNCED in open Court this 2nd day of July, 1987, at Blantyre. KR.) L. E:. Unyolo JUDGE