Supreme Court
Action No. 61 of 1978
7th April, 1979
Staine, J.

Mr. Denys Barrow for the Petitioner.
Mr. Wilfred P. Elrington for the Respondent.

Divorce - Desertion and cruelty - Adultery - Sufficiency of evidence - Petition dismissed - Costs.

J U D G M E N T

This is a Petition by a husband for divorce on the grounds of the wife's desertion and cruelty, and praying for the Court's exercise of its discretion on the grounds of his own adultery. At the date of his Petition he was living with a woman and in fact, intends to marry her.

The parties were married in 1955 and the wife bore the husband six children. The first five were born between 1955 and 1962. From 1962 to 1967 the wife had no children until, in 1968,when she gave birth to the sixth child.

The husband was a musician and often travelled with a popular band called "Los Beliceños". In fact it appears he owned the band and from time to time was out late at night playing with the band and indeed travelled with the band to the neighbouring Republics of Nicaragua and Honduras in the year 1963. He returned about ten months later or perhaps after a longer time (the period is disputed) and resumed living with his wife. Whilst he was away in the republics his wife received no money from him and, on his return, he confirmed this because the evidence discloses that he had given some money to a friend to deliver to the wife, but the wife never received the sum he says he sent, and on his return he was refunded the money by the person with whom he had sent it.

It appears that by this time the band had become very popular and frequently travelled to the districts playing.

From evidence, it appears that up to this period the marriage was a happy one and life proceeded along normal lines.

Then it appears that difficulties commenced. The Petitioner complains that when having sexual intercourse with his wife, after the fifth child was born (and that was in the year 1962), he was not allowed to discharge into her as, according to him, she was afraid of becoming pregnant. In other words, he was compelled to practice what is known as coitus interruptus. This, he said, bothered him because it made his private get big and he had difficulty thereafter in obtaining an erection. And this was the result of holding back from ejaculating into his wife.

The Petitioner said he consulted Dr. Adolfo Perez-Scholfield and told the doctor of his symptoms and the doctor told him that that was the result of holding it back and advised that he should let it go or it would kill nature more.

He said after seeing the doctor his wife became pregnant in 1967 and gave birth to the sixth child in 1968. This, he said, was the result of his following the doctor's advice and not holding back when ejaculating. He also said that previous to giving birth to the child in 1968 his wife had been pregnant but that she had "thrown away" the child of that pregnancy.

The Petitioner continued living together with his wife and, he said, they had sex off and on, that is, before the birth of the sixth child in June 1968.

The Petitioner left the country ,in 1968, in the month of January and he went to the United States to better his condition, as he puts it. At that time the marriage was still going. He did not have any intention of bringing the marriage to an end. Whilst he was in the United States he was able to work, the Petitioner said he sent money to the wife by asking his sister to send sums from time to time, but he, himself did not personally, at any stage, send any money to the wife for herself or the children. Then sometime ,whilst he was in the United States, he suffered an injury as a result of which he was unable to work for some considerable time and therefore was not in a position to send any money to his wife. This continued until 1972 when he returned to Belize after having had a court settlement in respect of his injuries and brought home the sum of $11,900 U.S. The Petitioner then resumed cohabitation with his wife who, he said, was reluctant to have sexual intercourse with him and still insisted in practicing coitus interruptus when she did consent.

The final blow came when on a particular day, the Petitioner took home a pork leg for the wife to cook and at meal time found that the wife had not cooked it. He thereupon became annoyed and left the matrimonial home because, as he said, this showed an intention on the part of his wife not to cook for him, and this was the proverbial straw that broke the camel's back. Thereafter he lived separate and apart from his wife and up to the present moment.

The Petitioner called one witness, Dr. Perez-Schofield, who recalled the Petitioner consulting him sometime, as he thought, in the late 1960's on a matter concerning the practice of coitus interruptus. Dr. Perez-Schofield said that he did not examine the Petitioner and he could not recall the date he was consulted as he had lost his records in the recent hurricane. But he recalled advising the Petitioner to desist from the practice of coitus interruptus because this was dangerous to his health and was the cause of his run-down condition. The doctor referred to the practice of coitus interruptus as being potentially dangerous as it could have psychosomatic which is a combination of physical symptoms with psychological effects and which could lead to a loss of virility, impotence and ultimately, breakdown of marital relations.

It also came out in evidence that in June of 1972 the wife caused the Petitioner to appear in the Magistrate's Court, and the magistrate ordered the Petitioner to pay a certain sum weekly in the Court for the maintenance of the wife and children.

The wife's story did not support the Petitioner's. Her case was that she at no time refused to have sexual intercourse with the Petitioner and at no time did she make him practice coitus interruptus.

She confirmed not receiving any money from him while he was in the Republics of Honduras and Nicaragua, nor did she receive any money from him at any time while he was in the United States. On his return to Belize in 1972 he found her at home and she had had to take up paid work at the Fort George Hotel to maintain herself and her children whilst the Petitioner was in the United States because of his non-maintenance of her and also she had had to go and live with her parents who ,from time to time, contributed to her keep and that of the children.

She told the Court that she had never refused to cook any pork leg for him, and on the day when he came home she had cooked food that was put on the table but for some reason he nevertheless left home that day.

She also confirmed that she had taken him to Court and he was ordered to pay a sum into the Court weekly but that the only time she received any money were when she would apply to have a distress warrant executed on him. Then she would receive payments representing arrears due.

She said that when he came back from the United States he had given her no money and had brought neither herself nor the children anything, but that on arrival, he had purchased himself a motor car which he used as a taxi and had purchased for herself and the children a few paltry items of clothing. She further said that after his leaving the matrimonial home she was not receiving any money from the Petitioner. She said she had gone to a grocer called "Ben's' where she used to be able to pledge his credit but she discovered that instructions had been given that she should not be allowed to receive any goods in her husband's name and therefore was entirely bereft of any means of support or maintenance.

She reiterated that at no time she had required him to practice coitus interruptus, and although after having the fifth child she desired no more, she still continued to have normal sexual relations with her husband because she thought that he wanted more children although for her part five were enough, and, as she puts it, "but what to do".

She said she used no form of contraceptives. It was sought to argue that the reason she had no children between 1962 and 1967 was because of this practice of coitus interruptus. She said this was not so. Then it was suggested to her that after having the fifth child she did not really enjoy having sexual intercourse with her husband, and had therefore used the term "he used me anytime he wanted, even in the daytime". Her explanation of this was that she had simply employed the term used as another form of saying sexual intercourse, but agreed that after she had the fifth child she no longer enjoyed having sexual intercourse.

A number of authorities were recited to this Court on the matter of the definition of 'cruelty' and allied with it 'desertion'. I need only refer to the case of KASLEFSKY v. KASLEFSKY (1950 2AER page 398). Whilst cruelty may be defined as actual physical injury or the reasonable apprehension of injury to health, this case and the other authorities show that there must be coupled with this action which shows that the Respondent's conduct is specifically aimed at the Petitioner. Even accepting the evidence of the Petitioner concerning the practice of coitus interruptus and that it was in fact practiced by him as a result of the wife's demands, there is absolutely no evidence that this conduct was aimed at the Petitioner. In fact, the Petitioner's own evidence disclosed that his wife had said after having the fifth child, that she was afraid of becoming pregnant, and by no stretch of the imagination can this be said to be conduct aimed at the Petitioner. But I find it difficult to accept the Petitioner's evidence as regards the practice of coitus interruptus because the evidence of Dr. Perez-Schofield mentioned the Petitioner's run-down condition and this was never mentioned by the Petitioner himself. Now, can I overlook the fact that Dr. Perez did not see the need to physically examine the Petitioner, but regarded himself as merely acting in a consultative capacity. If in fact the Petitioner, because of this practice of coitus interruptus, had observed that his private was becoming enlarged and he had difficulty in erection, then one would think that this would have suggested to Dr. Perez-Schofield that he should examine the Petitioner. But as I have said, this was not done. Also, I find it difficult to accept that this serious practice of which the Petitioner now complains would have commenced, but he would be unable to tell the Court on what date such practices did in fact commence. And more than that, it seems clear that in fact the Petitioner was not suffering from any dilatorious effect of sexual malpractices because having left the matrimonial home in May 1972, by June of that same year it seems he had found compatible female companionship. So ,indeed, one is led to presume that he was not then suffering in any way from his marital experience.

Adverting to the question of desertion, if in fact it is argued that the wife's refusal to cook the pork leg was the last straw that broke the camel's back and that by the wife so doing she evinced an intention to drive the Petitioner from the matrimonial home, this proposition must fail since that act, even if true, would not be supported by the previous complaint of coitus interruptus since the law is that it is conduct which must be aimed at the Petitioner and ,in this case, that evidence is surely lacking.

Again, by the wife not cooking a pork leg for the Petitioner, it cannot be argued that this was an act of cruelty taken by itself. A husband takes a wife for better or worse and a miniscule incident of this nature is, but I think, one of the tiny matters one must expect to encounter in married life.

The wife has expressed a desire that her husband should return to her and has prayed that this Court should reject his petition. This Court does have power to reject the prayer contained in his petition, but neither this Court nor any other Court has found a formula whereby husbands can be made to return home and remain at home. Clearly this is a case where the marriage has broken down and no useful purpose is served by the continuance of this marital relationship. The wife has said that she still loves her husband and would like him to return home for the sake of the children. That is understandable when one considers the financial burdens she must bear. The husband, on the other hand, has taken up cohabitation with another woman and has expressed the desire to marry her and therefore, obviously he is unwilling to return home. Had the law of England ,as it now stands, apply in this country I would be able to say that this marriage had irretrievably broken down. But because the Petitioner's evidence falls short of that which is required in law, his prayer for the dissolution of the marriage must be rejected.

The petition is dismissed and the husband - the Petitioner - is condemned to pay the cost of these proceedings.

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