Supreme Court
Divorce Action No. 19 of 1981
28th April, 1982.
Moe, C.J.

Mr. P. Zuniga for the Petitioner
Mr. D. Lindo, S.C. for the Respondent

Divorce - Cruelty as a ground of divorce - Test of proof of cruelty - Effect of Petitioner condoning possible act of cruelty by the Respondent.

J U D G M E N T

The petitioner seeks a divorce from his wife on the ground of cruelty. He alleged that she is of ungoverned temper, has frequently nagged, sworn and shouted at him and threatened his life and has committed five specific acts of assault on him. The wife denies his allegations and for her part alleges that he is of ungoverned temper, a habitual drinker, has frequently nagged, sworn and shouted at her and has committed three specific acts of assault on her.

The petitioner charged that the assaults on him occurred at the matrimonial home in October 1976, in December 1979, on the 24th December 1980, on 9th March 1981 at Big Falls, and on 17th March 1981 at the matrimonial home. The assaults charged by the respondent relate to the same date in October 1976, December 1980 and March 1981 at Big Falls. She denied outrightly that the incidents charged for December 1979 and 17th March 1981 ever took place.

The evidence of the petitioner relating to the alleged incident in December 1979 was so vague and such that I could not come to a finding that such an incident took place. His evidence as to the incident on the 9th March 1981 at Big Falls does not show that his wife assaulted him, indeed it is that she did not get a chance to whereas he slapped her in her face. The wife also gave this evidence and I found that on the 9th March 1981 it was the petitioner who assaulted the respondent. Again the respondent's evidence as to the incident on the day in October 1976 does not show that the petitioner assaulted her and her allegation with respect to that date was not proved.

I accepted the petitioner's evidence as to what occurred in October 1976, 24th December 1980, and the 17th March 1981. He said that one night in October about 2:00 a.m. 1976 he awoke to find his wife standing over him with her hand raised and in it a scissors. He jumped up, held her hand and called her brother. The brother came, hit her and took away the scissors.

On Christmas eve December 1980, after a customer complained about the size of the chicken which the petitioner and respondent were selling, the petitioner asked the respondent to go into the kitchen and take care of things. She refused. He caught her by the hand and pulled her off the stool. She broke a beer bottle she had in her hand at the time and went after him with it. He knocked her down to defend himself. Her son came and held her to prevent her going at the petitioner.

On 17th March 1981, that is, about ten days after they were together in Big Falls, the petitioner got into his Pickup to go to the bank. The respondent in a night gown also went into the Pickup saying "Anywhere this Pickup going, I going too." The petitioner tried to get her out but she took a red penknife which she had and chased him with it. The respondent's brother eventually got her out of the pickup.

There was evidence which I accepted that both the petitioner and respondent drink. Frequently they are affected by the drink consumed and they insult and attack each other. The evidence of the parties and of the respondent's daughter left that firmly in my mind. In view of that background to their married life and bearing in mind that there are counter charges that it was the other spouse who committed acts of cruelty on the dates in question I looked for corroboration of the petitioner's account of the respondent's three assaults found above. There was evidence that the petitioner took the respondent for examination because he felt there was something wrong with her head. She was not acting normal. The respondent agreed from a long time the petitioner told her he thinks something is wrong with her. I felt that this evidence tends to substantiate the petitioner's account that on various occasions the respondent assaulted him.

However the assaults of the wife such as I have found must be tested against the background of the temperaments of the parties and the particular circumstances of the marriage. Using this test I do not feel that the petitioner has discharged the onus on him of establishing that either incident by itself or the incidents together amounted to cruelty.

Even if I am wrong and the acts of the respondent which I have found ought to be held to amount to cruelty, I would find that the cruelty was condoned by the petitioner. For on the 2nd June 1981, the petitioner fully aware of the respondent's conduct and having lived apart from her for about three months sought her out and made love to her on that night. He slept with her the following night again having sexual intercourse.

His petition must accordingly be dismissed. The assault which I found proved that the petitioner committed against the respondent does not amount to cruelty and her petition is also dismissed.

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