BERNICE ACQUAH VRS FELIX KWAME AMPONSAH [2024] GHACC 293 (7 October 2024)

IN THE CIRCUIT COURT, HELD AT ODUMASE KROBO, IN THE EASTERN REGION, ON THE 7TH OCTOBER 2024, BEFORE HIS HONOUR KWESI APPIATSE ABAIDOO SUIT No. A4/10/2024 BERNICE ACQUAH ) === PETITIONER ODUMASE KROBO ) VRS FELIX KWAME AMPONSAH ) === RESPONDENT ODUMASE KROBO ) JUDGMENT The petitioner, a nurse, on the 7th day of November 2023, brought the instant petition for divorce against her husband the respondent herein seeking the following reliefs; 1. An order of the court dissolving their ordinance marriage contracted on the 31st day of August 2019, at Dunkwa-on-offin in the Central Region. 2. An order of the court granting custody of their only child to the petitioner with reasonable access to the respondent. The facts which anchors the instant petition are that the parties got married under the ordinance at the District Court Dunkwa-On-Offin, on the 31st day of August 2019, and later cohabited as husband and wife at Somanya in the Eastern Region. The petitioner had to relocate to Somanya to join the respondent due to the nature of the respondent’s work as a Page 1 of 6 Quality Control Officer. The parties are blessed with one child called Purity Konobea Amponsah, who is now three years old. When the petitioner got pregnant the respondent accused her of having sexual intercourse with another man who is responsible for the pregnancy. Based on this infidelity accusation against the petitioner, the respondent has been taking offence at the least provocation by the petitioner and on several occasions sacked the petitioner from their marital room for her to sleep outside under the mercy of the weather. In addition, the respondent has been raining insults at the petitioner in public. The respondent having had enough of the humiliation at the hands of the respondent brought the instant petition seeking the reliefs endorsed therein. The respondent upon receipt of the petition filed his appearance and answer to the petition. As logically expected, the respondent denied every allegations of facts concerning the infidelity accusation levelled against him by the petitioner and further denied having sacked the petitioner from their matrimonial home. The respondent averred that despite attempts by their families to resolve their differences yielded a positive results but the petitioner still moved out of the their matrimonial home. It is on the basis of these facts that the respondent prayed the court to deny the grant of the petition for divorce and gives them an opportunity to attempt further settlement. The issues for determination are; a. Whether or not, the marriage existing between the parties have broken down beyond reconciliation. b. Whether or not, the petitioner is entitled to have custody of their daughter who is three years old. In respect of the first issue, the petitioner in her petition made several allegations of facts against the respondent, which when proved gives cause for their marriage to be dissolved. The petitioner alleged in her petition that the respondent has accused her of infidelity. Based on this allegation, the respondent has been maltreating her sometimes by letting her sleep outside Page 2 of 6 their matrimonial room at night on several occasions with the least provocation. Also the respondent has been disgracing her in public with the allegation of infidelity. Though the respondent denies the allegations levelled against him the petitioner, the respondent on several occasions failed to file his witness statement and in fact failed to participate further during the course of the petition, despite the service on him of several hearing notices. In that case, the court will deem the allegations made by the petitioner as been proved. Now, for a court to make a decree of divorce in respect of the instant marriage, the petitioner ought to situate her action under section 1(2) of the Matrimonial Causes Act, 1971 (Act 367). Per section 1(2) of the Matrimonial Causes, the only ground upon which a marriage can be dissolved is that the marriage has broken down beyond reconciliation. A petitioner need prove that the marriage has broken down beyond reconciliation by one or a combination of the indexes prescribed under section 2(1) of Matrimonial Causes Act (supra), which reads; “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 Page 3 of 6 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.” Merely suspecting one’s wife of misconducting herself is not enough proof of adultery. To prove adultery the petitioner should lead evidence in prove the fact that the respondent had an opportunity to misconduct herself and actually took advantage of the situation to misconduct herself. It is only through this that the petitioner will be deemed to have proved the alleged adultery, since in real life it is difficult in many instances to get direct evidence. In the case of Adjetey v. Adjetey [1973] 1 GLR 216, Sarkodee J., stated the principle behind the standard of proof of adultery at page 218 of the report, thus; “Adultery must be proved to the satisfaction of the court and even though the evidence need not reach certainty as required in criminal proceedings it must carry a high degree of probability. "Direct evidence of adultery is rare. In nearly every case the fact of adultery is inferred from circumstances which by fair and necessary inference lead to that conclusion. There must be proof of disposition and opportunity for committing adultery; but the conjunction of strong inclination with evidence of opportunity does not lead to an irrebuttable presumption that adultery has been committed; and likewise the Court is not bound to infer adultery from evidence of opportunity alone." The petitioner in her petition for divorce alleged that based on the allegation of infidelity on her part by the respondent, the respondent has been humiliating her in public and in several occasions caused her to sleep outside their matrimonial room. This is a serious allegation of Page 4 of 6 fact that no one will tolerate or be expected to put up with. This is a proof that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. I find that the petitioner’s problem is not about the infidelity accusation on the part of the respondent, but the respondent’s resolve to permanently disgrace the petitioner upon the least provocation. I therefore place the petitioner’s action under section 2(1)(b) of the Matrimonial Causes Act, and find that that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. Accordingly, I hereby dissolve their marriage as the marriage has broken down beyond reconciliation. Now, in deciding which of the parties to the marriage is to have custody of the children or child of their marriage consequent upon divorce, the courts are enjoined by law to considering the best interest of the child or children of the marriage. Section 2 of the Children’s Act, 1998 (Act 560), instructs all persons who have to make a decision concerning a child to look out for and apply the welfare principle. The said section reads; “(1) The best interest of the child shall be paramount in any matter concerning a child. (2) The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child.” It is the duty of the court to look at what amounts to the best interest of the child on a case by case basis. The child existing between the parties is a girl and just three years old, I am of the considered opinion that it will be the best interest of the child to place her under the custody of the petitioner with reasonable access to the respondent. Accordingly, I hereby place the child under the custody of the petitioner, with the respondent having reasonable access to the child. The petitioner did not seek for maintenance for the child. Since the parties are gainfully employed individually, let the parties jointly maintain the child as they have been doing. Page 5 of 6 Accordingly, let the status quo ante be maintained in respect of maintenance until the time the need will arise for the court to intervene. H/H KWESI APPIATSE ABAIDOO (CIRCUIT COURT, ODUMASE KROBO) Page 6 of 6