Supreme Court
Action No. 61 of 1979
21st March, 1980.
Barrington-Jones, J.

Mr. Denys Barrow for the Petitioner.
The Respondent not appearing.

Divorce - Grounds constituting cruelty - Respondent leaving matrimonial home and later returning - Whether Petitioner condoned Respondent's evidence - Evidence necessary to rebut presumption of condonation.

J U D G M E N T

The parties were married on the 6th July, 1966 and there are three children of the family. The parties have lived at diverse addresses in Belize City, concluding with a matrimonial home at 102 Neal's Pen Road.

A Petition was filed on the 31st December, 1979 alleging that since the celebration of the marriage the Respondent had treated the Petitioner with cruelty in that on two occasions he had assaulted the Petitioner. The first occasion was in February, 1979 when the Petitioner says that the parties had a fight and that the Respondent hit her in the face and around the body. The second incident was on the 22nd November, 1979 when the Petitioner says that the parties had a fight on Central American Boulevard and she avers that the Respondent hit her in the face, and that she fell down, and that the Respondent kicked her and threw her in a drain, and also caused a cut on one of her fingers.

The Petitioner told the Court that when she presented her Petition the Respondent was not living in the matrimonial home and yet in the next breath, she said that the Respondent returned and took up residence there in December, 1979, but that his return there was not with her consent; and it seems that he has continued living in the matrimonial home since that time. It therefore appears that either paragraph (4) of the Petition is incorrect or the Petitioner is mistaken in her evidence.

The Petitioner said that since his return the Respondent has occupied a separate bedroom in the matrimonial home and that there has been no cohabitation, but she admitted that she washes his clothes and cooks for him, and that the Respondent assists the children with their homework. She said that the Respondent had told her that the main reason he was living there was to help the children. She said that the Respondent pays the rent for the matrimonial home. Finally, she said that the Respondent was a bossy type and said that if she did not provide the services she did, the Respondent "would want to hit her".

No evidence was led concerning the state of the marriage leading to the presentation of the Petition, nor was the Court told of their bedroom arrangements prior to the Respondent leaving the matrimonial home; nor was there any evidence from the Petitioner as to why the Respondent had first left the matrimonial home. There was also no evidence as to the circumstances in which the Respondent returned to the matrimonial home in December, 1979.

At the end of the hearing this Court cannot find that it is satisfied that there has been no condonation on the part of the Petitioner. The evidence is unsatisfactory and insufficient in this respect and the Petition must therefore be dismissed.

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