Adablah Vrs Bismark [2022] GHADC 91 (15 February 2022)

1 IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 15TH FEBRUARY, 2022 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE ABIGAIL ADABLAH PETITIONER SUIT NO. A4/10/21 VRS YEBOAH BISMARK RESPONDENT PARTIES PRESENT PARTIES NOT REPRESENTED This is a proceeding under the Matrimonial Causes Act, of 1971 of Act 367(Cap 127). JUDGEMENT The parties married on 10th October, 2019 at Mim after the marriage they lived in Mim. There is no issue in the marriage: On 30th June, 2021 the Petitioner filed legal proceedings seeking a divorce. The Petitioner prayers were formulated in the particulars of her petition as follows: (1) An order for the dissolution of the marriage under the Ordinance between the parties (2) An order for the Respondent to pay GHc20,000.00 as push off package The Respondent filed an answer and prayed for the following order and relief: That the marriage celebrated between the Parties on 10th October, 2019 be dissolved. 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) two (2) years ago without issue in the marriage and they lived as husband and wife at Mim-BA. According to the Petitioner she met the Respondent in 2016 and they were in relationship until the Respondent performed the customary rite and came to the court for the Ordinance Marriage in October 2019 as man and wife. She contended that she was unable to bear the Respondent a child and this made the mother of the Respondent angry and furious and started to mount pressure on her for her bareness and always complained bitterly about the marriage. In view of that the Respondent deserted the matrimonial home and went and put up with another woman for the past two years. This made the Respondent to shrike his responsibilities and stopped maintaining her and also failed to perform his conjugal right as a husband. She stated that the two families strived hard to resolve the issues confronting the marriage but it could resolve same. She further contended that when the family of the Respondent realized that the Respondent for the past two years has deserted his matrimonial home then brought some drinks and an amount of GHc1,000.00 but her family accepted the drinks and rejected the money. She is here telling the court that she does not need any anomaly from the Respondent but just interested in the dissolution so that peace will prevail between the two. THE RESPONDENT EVIDENCE The Respondent corroborated the Petitioner’s evidence and added that when the pregnancy was not forth coming and with the pressure mounted on him by his mother made him to move from the matrimonial home and put up with another woman who as he speaks is carrying his six months baby in the womb. He again confirmed the Petitioner’s assertion that his family sent some drinks and money to the Petitioner’s family but they rejected the money and accepted the drinks as customs demands. He told the court that after the two years he also had the information that the Petitioner has also go in for another man. He is praying the court to cause the divorce once each of them has created a crack in the marriage and nothing can bring them together again. 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 the Petitioner is entitled to a reasonable lump sum of GHc20,000.00? c. Whether or not the Petitioner is entitled to the reliefs 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 2(1)(b),(d) & (f) and (3) of Act 367 provides as follows: “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 fact: (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 (f) that the parties to the marriage have, after diligent effort, they unable to reconcile their differences. (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 MENSAH V MENSAH [1972] 2 GLR 198, Hayfron-Benjamin J. (as he then was) held that: “… it is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage has broken down will not be enough…” In the present suit, both parties have stated during trial that the marriage has broken down beyond reconciliation and they cannot live with each other anymore because both parties has gone in for their new lovers and that the Ordinance marriage can no more hold hence the divorce. The evidence on record indicates that the parties even though got married and lived together as husband and wife under one roof until the Respondent deserted from the matrimonial home for two years without maintaining the Petitioner and also failing to perform his conjugal right as a husband. The Respondent’s family sensing danger quickly sent in a customary drinks and some money to cause the dissolution of the marriage customary and the Petitioner also deem it necessary to take legal action to dissolve the marriage legally. On the other hand, the Respondent adduced that once he has impregnated another woman whilst the Ordinance Marriage is still subsisting has brought an impediment on his way to go ahead to perform the customary marriage on his expectant pregnant woman. As I have stated above, the Respondent has also given his consent to the dissolution of the marriage and that he 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 30th June, 2020. However the Petitioner told the court to waive the compensation and the court therefore grant her prayer. ……………………………………… HW MAGDALENE THOMPSON DISTRICT MAGISTRATE 6