Supreme Court
Action No. 63 of 1981
16th March, 1982
Moe, J.

Mr. John Avilez for the Petitioner
Mr. Dean Barrow for the Respondent

Divorce - Grounds constituting cruelty.

J U D G M E N T

The petitioner seeks a divorce from the respondent on the ground of cruelty. She alleged three specific occasions of physical assault on her by him and his association with another woman with callous indifference to the petitioner's feelings. The respondent in his answer denied cruelty and at the hearing while admitting physical assaults on the occasions stated, he denied the manner on which each was caused or occurred whereas to two of them he denied the extent alleged but admits the extent in one.

The Assualts

I. The petitioner said that one day in April, 1980 she confronted the respondent with a report she had received that he was out with a woman drinking and they had been on the pier embracing. She related an argument which developed and said he hit her with his fist on her jaw, slapped her over her face, grabbed her hair, pushed her against the wall and banged her head against the wall. The respondent admitted the confrontation and an argument. He said that in an attempt to restrain her from being violent he struck her once. He also said he actually pushed her on the bed and was sitting on her.

II. According to the petitioner on 7th August, 1980 about 3 o'clock in the afternoon, the respondent left the dock in a boat with two other men. She used a pair of binoculars and saw that they went south and stopped at a Hotel where 3 girls got into the boat. She followed the boat in a skiff and when she got to where the boat was she screamed at the respondent that she had now seen with her own eyes. About 10 to 11 that night she confronted him with the incident. An argument developed. He punched her on the left jaw, he went to grab her hair and she ran into the bathroom and locked the door. Because of the type of door he got in, and while she was trying to go through another door, he grabbed her hair, threw her on the floor face down, straddled her, hit her about the face and head, wrapped a towel around her mouth, when it slipped on to her throat he started choking her. When he stopped, she went through the back door and into an unfinished building and remained there from about midnight until about 3 to 4 a.m. when she came back home, got dressed and went to work. The respondent admitted going off in the boat, the petitioner's coming by the boat and screaming at him. He said when he got back home, the petitioner was pretty angry and a heated argument developed. He was in the bathroom with a towel over his shoulder when the petitioner picked up a small radio amplifier, threw it on the floor and smashed it. He took the towel, swung it around her head and wrestled her to the floor. He did this to stop her smashing anything else. He had to physically restrain her over an extended period and sit on her until she calmed down.

III. On the 30th August, 1980, after a dinner party, the petitioner and respondent went to put their children to bed. He said he was tired, was going to bed and would go to the room which he was then using. The petitioner, unable to sleep, went for a walk along the beach and saw the respondent sitting in front of a bar in the company of some persons including a lady named Susanne. When they got home that night, she confronted him with the girl he was out with and he admitted seeing her, said she was intelligent and made him laugh. The petitioner said she started shouting at him and threw a half glass of soda-water at his face. He then hit her two or three times on her jaw, grabbed her by the jaw, grabbed her by the hair and dragged her to a room where he kept certain equipment, threw her on the floor, straddled her, twisted her arms behind her back, tied them, then bent her legs and tied them to her hands. He kept pulling her hair and hitting her about the head. Her legs got bruised. When he untied her he left her arm on the floor. She reported the matter the next morning to Inspector Haylock and also went to a Doctor who examined her and gave her a paper on which he wrote. He put something on the cut which she had on her knee. She also had bruises on the jaw and a swelling. The respondent admitted going to the bar after he said he was going to bed and that the petitioner came when he was in the company of these persons including the lady Susanne. He said it was by the bar that the petitioner started the argument and threw the soda water in his face and said she wanted him out of the house right then. They went home and she told him to take all his possessions and move out. She kept screaming at him to get out and would try to throw things out over the verandah. Each time he would retrieve the items. She was about to throw a voltameter valued at about $350 Bze to the floor when he grabbed her and the meter and wrestled her to the floor. He admitted tying her up as she described which he said he did to keep her from smashing anything else. She screamed, then cried for several minutes, then calmed down. He then untied her. He moved out of the home the next day.

Association with Susanne

The respondent went to live at the house of one Guinn. The petitioner's evidence is that he continued to see the girl Susanne and she saw them together several times, sitting next to him while he was driving a Pickup truck, meeting him at the airstrip and jogging with him, coming in to the airstrip one morning about 7:30 in an aeroplane flown by the respondent himself from Corozal and seeing them together on the beach on 26th November last year when she saw him kiss her. The respondent admits these events.

I found that the respondent committed three separate physical assaults on the petitioner on the dates set out above. Having seen and heard the petitioner and respondent in the witness stand I accepted the petitioner's account of the manner in which the assaults occurred and the extent to which they were committed. Her account of what occurred was straightforward and appeared to me truthful. The respondent on the other hand appeared to give such evidence as he gave in an attempt to bolster up a reason for being violent to his wife. His account was unconvincing and I rejected it. I kept in view the position in law set out in Halsbury`s Laws Vol. 12 (3rd edition paragraph 516) the judge must consider the impact of the personality and conduct of one spouse on the mind of the other and all incidents and quarrels between them must be weighed from that point of view. In determining what constitutes cruelty, regard must be had to the circumstances of the case, keeping always in view the physical and mental condition of the parties, their character and social status". In my view these assaults exceeded what would reasonably be expected in a marriage and were of a grave nature. I make particular reference to the assault on the 7th August which resulted in the petitioner keeping herself out of the home during the night which circumstance was not even challenged or denied in any way and that on the 30th August, 1980 when the respondent trussed up his wife and the assault resulted in bruises and swelling on the jaw and a cut on the knee.

In Gollins v. Gollins [1963] 2 A.E.R. 966 Lord Reid had this to say "Where there is physical violence of a grave and weighty kind, there is no need to look further---". This position was taken in the United Kingdom and in Jamacia in Llewelyn v. Llewelyn 27 W.I.R. 188 in which there was evidence of four separate incidents during the course of which the husband punched his wife, hit her on the head several times, boxed her and kicked her. The Court of Appeal held that it had always been clear that physical acts of violence of that nature constitute cruelty on any reasonable definition of cruelty. But there was conduct by the respondent which went further and was also taken into account. He was certainly aware from the 30th August, 1980 that his wife was against his association with another woman but he thereafter continued his association with that woman openly and in a manner which was evidently in disregard of what his wife felt about it. This conduct was after he had admitted to being out with another woman drinking, being with her on the pier and embracing her and his wife making clear her objection to that type of behaviour.

I hold that the respondent's assaults on and whole course of conduct towards his wife amounted to cruelty. On the evidence which I accepted there was no justification for the cruel acts. It was understandable that a married woman would be upset on getting a report that her husband was with another woman and was seen in a compromising position. Understandable also that she confront him with the report and be angry at the response that it didn't mean anything. Understandable further that she would keep an eye out and spy on him, would follow him and scream at him publicly, action which may be regarded as embarrassing to the husband. It was understandable too that the husband would resent being spied upon and followed and would react to what he termed disobedience to a direct order not to embarrass him in public. But the violent acts committed were neither through a loss of self control nor a reasonable mode of resentment. There was a suggestion through cross-examination of the petitioner that she had condoned the cruelty, that is by withdrawing an earlier petition filed after the respondent asked her to do so. This was after they had together seen a marriage counselor in the States. The petitioner's evidence was that the respondent asked her to withdraw the petition because he didn't want the allegation of cruelty to go on record for his children to see on a later date. She found the request agreeable because she loves her children very much. I did not find that she had thereby reinstated the respondent and held there was no condonation.

Decree nisi on the ground of cruelty. Petitioner to have custody of her two children Lisa Marie and Martin Stanley. Respondent to pay costs of the proceedings.

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