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Kistamma v Sarojini [1977] FJLawRp 8; [1977] 23 FLR 86 (25 March 1977)

[1977] 23 FLR 86

COURT OF APPEAL OF FIJI

CIVIL JURISDICTION

VENKAT KISTAMMA

v

SAROJINI

[COURT OF APPEAL. 1977 (Gould V. P., Marsack J. A., Henry J. A.) 16th, 25th March]

Husband and wife—divorce—desertion—whether offer to return genuine or a mere subterfuge and insincere—Matrimonial Causes Ordinance 1968 ss.57, 70(b).

Estoppel—husband and wife—divorce—findings of magistrate in maintenance case does not create an estoppel in a divorce suit—Matrimonial Causes Ordinance 1968 ss.57. 70(b).

Although the respondent may not have had just cause for initially deserting the appellant, there was later a genuine offer to return which was rejected, and this terminated the desertion.

The findings of a magistrate in a maintenance case did not create an estoppel in a divorce suit in an higher court.

Cases referred to:

Bright v. Bright [1953] 2 All E.R. 93953] 3 3] 3 W.L.R. 659.
Allen v. Allen [1951] 1 All E.R. 724; 115 J.P. 229.
Everitt v. Everitt [1949] 1 All E.R.9060; 113 J.P. 279.
Thomas v. Thomas [1946] 1 All E.R. 170Hill v. Hill [1954] 1 All E.R. 491; [1954] 2 W.L.R. 473.
Hudson v. Hudson [1948] 1 All E.R. 773; [1948] P. 292.
Harriman v. Har [1909] UKLawRpPro 6; [1909] P. 123; [1908-10] All E.R. (reprint) 85.Whittaker v. Whittaker [1939ll E.R. 833; 55 T.L.R..L.R. 1070.
Thoday v. Thoday [1964] 1 All E.R. 341; [1964] 2 W.L.R. 3.R. 371.

Appeal against the dismissal of the appellant's petition for divorce by the Supreme Court.

K. C. Ramrakha and A. Singh for the appellant.
for the ndent.

JUJUDGMENT OF THE COURT (read by .): [25 March 1rch 1977]-

Appellant fa pet for divorce on July 10, 1975 on the ground that that respondent without just cause or excu excuse wilfully deserted him for not less two , namely from Junm June 13,e 13, 1973. Respondent filed an answer denying desertion but admitting that on that date she withdrew from cohabitation because appellant had been cruel to her and by his conduct made her believe that appellant had committed adultery with one Radha. Respondent further pleaded that she had requested appellant by a letter dated January 10, 1975 to resume cohabitation but that he had refused to do so. By reason of such refusal respondent alleged that appellant was in desertion of her. Respondent sought a dismissal of the petition and other relief.

The case was heard by a magistrate under Part XI of the Matrimonial Causes Ordinance 1968. The learned magistrate heard the evidence and made the following findings, namely,

(a) that there was no conduct on the part of appellant which justified respondent in leaving the matrimonial home on June 13, 1973, but

(b) the offer of respondent to return to cohabitation was genuine, and

(c) that desertion on the part of respondent for the requisite period of two years had not been proved.

The learned magistrate recommended that the petition be dismissed. The petition then came before Kermode J. who agreed with the findings made and dismissed the petition. Other relief was granted for custody and maintenance but no question now arises in respect of those orders. Appellant had appealed against the of his petition and seeks a decree nisi in his favour.

The case took a new turn in this Court when counsel for appellant argued that respondent was estopped from denying the conduct alleged in her answer on the ground that it had been the subject matter of previous litigation between the parties determined in favour of appellant. It was a plea of res judicata. Welln nown cases such as Bright vght (190;(1953) 2 All E.R. 9d&#and Allen v. Allen&#16hr(1951) 1 All E.R. 724 and othees weted.

EstopEstopEstoppel was not pleaded nor was it raisedaised in the magistrate's court, nor were any steps taken to strike out thading of cruelty and adultery. The case went to trial on all pleaded matters. In the Supremupreme Court it appears that no submissions were made but that the learned judge read the papers and gave his decision. The sole ground of appeal is stated thus:

"The Respondent having left the Petitioner without cause, and having made an unfair and unfounded allegation of adultery against him, and having persisted in such allegation, the Respondent ought to have been held to be in desertion in the circumstances, and the marriage ought to have been dissolved."

Evidence was taken before the magistrate on July 1 and August 26, 1976. At an adjourned hearing on September 17, 1976, by consent, a certified copy of the court record of a maintenance case No. 103 of 1974 between the parties was put in as evidence. The note made does not give the basis for admission. Counsel then addressed the Court. The only submission recorded from counsel for appellant was that after the result of maintenance proceedings respondent could not hold an honest belief in adultery. He drew attention to the fact that cruelty and adultery were again alleged and argued that respondent could not genuinely say she wished to return in the fact of persisting in those charges. No claim of res judicata was made. This is clear fror from the contentions of counsel for respondent and the findings of the magistrate. It is, in my view, too late for appellant to put forward a plea of estoppel. It would appear that counsel for respondent in this Court, although he took no objection to the manner in which the case was argued by counsel for appellant, did not really attempt to argue the new point.

If appellant had properly raised a plea of estoppel the magistrate and the Supreme Court would have to adjudicate upon the plea. If the plea succeeded evidence of cruelty and adultery would have been excluded and the only question would be one of the genuineness of the offer to return. Estoppel will be dealt with later after considering the evidence which, in our judgment, ought to be considered on the basis that it was properly given and that no plea of estoppel was open to appellant in the events which happened at the hearing.

The learned magistrate posed the proper test in dealing with respondent's claim that appellant was guilty of expulsive conduct, namely, whether it was grave and weighty and of a convincing character justifying respondent leaving the matrimonial home. He was satisfied that there was no improper relationship between appellant and Radha and that there was no cruelty sufficient to justify her leaving appellant. Then appeared the following finding:

"There were quarrels between them but these amounted to no more than the ordinary wear and tear of marriage."

Appellant gave evidence as follows:

"My wife was jealous of my cousin who was staying with us. My cousin used to help me a lot in my studies. Her name is Radha Naidu. When we sat together and studied my wife used to be jealous. Also when my kids used to do little bit mischief I used to get angry with my wife. On 13.6.73 I told my wife about my slippers I told her to look for it and she did not give them to me in time. We had a small quarrel that morning and I went away to work. When I came back lunch hour to drop my daughter home-from kindergarten and went back to work. I did not go into house-just dropped daughter and went away. I came back after work and found my wife and kids not home."

In cross-examination he said:

"Q: I put to you your wife did not like your association with Radha.

A: This is true.

I did not discontinue as she helped me in studies. When we used to study wife was jealous. After studying for few hours I went into room to wife to explain to her not to have this sort of feeling. But when we studied again she felt jealous again.

My wife used to say you are sitting down studying with Radha and she did not want me to do this. I think she thought I was having sexual relations with Radha. My wife said I was having relations with Radha. She said I was making love with Radha and she did not like me talking with her. Radha came to our place 3 months before I went to Australia. I can't remember when she left our home. Radha used to assist me before I went to Australia—correspondence to firms or banks but this was only occasionally. But when I returned from Australia her help in my work became greater.

I deny I was making love to Radha. It is not true I took her out. I occasionally dropped her at work. She used to go out with other members of family. I did not take her out except drop her at work.

Radha gave evidence in our maintenance trial. I called her as my witness. I was present during this proceeding.

Q: In your maintenance case Radha said she left the home because of troubles between petitioner and respondent over me.

A: Yes she did say this.

I took Radha to Nadi once with my uncle and his son. He is the same uncle who approached my wife about returning to me. I did not take my wife to Nadi because there was not enough space in the car. My cousin Radha's brother had got hurt in Nadi and we went to see him.

Radha went only once with me to Nadi with my uncle and another cousin. My wife's complaint about Radha working with me started after my return from Australia.

Q: Did you say in your maintenance case "my wife did not get on well with me. At no time she complained of my friendship with Naidu."

A: I said this. By Naidu I meant Radha Naidu. My wife complained about Radha just before June 1973. I meant she was not complaining in the beginning."

This would appear to be much more than ordinary wear and tear of marriage. Appellant continued despite the distress his association caused his wife and her reaction to the close association which appeared to her to be objectionable. There was also evidence that respondent was uneducated whilst appellant and Radha had each reached a standard of education where they had ground which was not common with respondent who, no doubt, felt her inferior position. It is not clear when Radha and appellant ceased association but it was after respondent left home. This conduct on the part of appellant, even if innocent as was held, was clearly causing serious friction and was persisted on by him despite results he could well appreciate.

In view of the pleading and conduct of this case we reject any contention that respondent could no longer maintain her claim that she reasonably believed that appellant was guilty of the conduct she alleged against him. She was entitled to put her view forward for consideration by the Court. The real difficulty which faced her was the ambiguous, if not contradictory attitude, taken at the hearing. On the one hand she persisted in the allegations that she was justified in staying away and at the same time sought to prove that she genuinely desired to be re-instated in the matrimonial home of a husband whose conduct she still impugned. This will be referred to later.

The history of the case after respondent left home, so far as concerns her desire to resume cohabitation, is conveniently summarised in the opinion of the learned magistrate. The account which follows is taken from his report to the judge and we now repeat the passages which read:

"After the respondent left him the petitioner sent his uncle to attempt to bring the respondent back. This did not succeed. Thereafter on the 28.6.73 the respondent commenced maintenance case number 103 of 1973 in Suva Magistrate's Court Ex.D. Prior to hearing this case the trial magistrate attempted reconciliation between the parties but this failed because of the respondent's refusal to return to the petitioner. After hearing the case the magistrate did not find any of the respondent's allegations of desertion, cruelty, wilful neglect to provide reasonable maintenance or adultery on the petitioner's part with Radha Naidu proved and on 22.1.73 he dismissed the respondent's complaint. However he made an order against the petitioner for the maintenance of the two children of the marriage.

Up to this stage the petitioner expressed his willingness to take the respondent back but the respondent refused to return. In her evidence before me the respondent said that at that stage she was still afraid that the petitioner would assault her if she returned and that as he was bringing Radha Naidu to Court to give evidence on his behalf she was afraid to return to him.

Thereafter the parties were again before the Magistrate's Court for the hearing of an application by the respondent for a variation of the maintenance order. This was on the 21.11.74. During the course of that hearing the respondent said that she was genuinely willing to return to the petitioner. However, this time, the petitioner said that he did not wish to take her back.

Thereafter respondent says that in January 1975 she instructed her Solicitor to write to the petitioner offering to return to him. The petitioner denies receiving such a letter. Thereafter the petitioner filed this petition in Court on 15.7.75. During the hearing of this petition the respondent repeated her offer to return to the petitioner but the petitioner has again refused this offer."

The learned magistrate held that the case was one of simple desertion and cited as authority a text book in support. The law is stated by Lord Merriman P. in Everrit v. Everrit [194All E.R. 908 where his his Lordship said at p. 916:

"The only possible conclusion from the judgment of Warrington, , in&Thomas v. Thomas [1946] lE.R. 170 is that that the unjustified refusaefusal by l by the spouse who has been deserted to resume cohabitation not merely terminates the desertion but also reverses the process; it "turns the tables", or "puts the boot on the other leg", or whatever metaphor one chooses to adopt; and it is immaterial whether the case is one of mere desertion which is terminable by a simple offer on the part of the deserter to return or is a case of constructive desertion terminable, with more difficulty no doubt, but terminable by appropriate repentance and appropriate assurance of amendment of such a kind, according to the individual circumstances, as the aggrieved spouse is not justified in refusing. To that, of course, must be added the qualification that at the end of his judgment Warrington. L. J. said (1924) p. 201:

In each case the question must be determined on its own merits................. ".

We turn to the merits of this case which is not one of simple desertion. There was, when these proceedings commenced, a genuine dispute between the spouses on the questions of who was in desertion. The respondent had made offers of return but appellant was determined to press for a divorce as soon as possible after the statutory period had expired. This is clear from his evidence and the time of filing of his petition. The position then, at the election of appellant, had to be resolved in Court. This resulted in respondent, on legal advice, repeating the allegations unsuccessfully made in earlier maintenance proceedings. Appellant had refused her offers of return. Respondent's conduct in defending these proceedings must be looked at in this background. Reference will later be made on this.

The conduct of both parties must be weighed because, as has been stated, this was not a case of simple desertion. Appellant had shown a complete disregard of respondent's susceptibilities who, before she left the home, was admitted to be a good mother. The only complaint appellant has made was concerning her attitude to his association with Radha. He said there was a small quarrel about slippers on the day she left. This is difficult to believe. However, appellant knew respondent was reacting strongly against the presence of another woman in the home and appellant's association with her. Respondent was expressing her fears quite plainly. Appellant ignored her and continued although he must have known the distress he was causing. Not unnaturally respondent's jealousy grew and she became aggressive in her assertions of misconduct.

Although respondent was unable to prove the grave and weighty reasons necessary to justify her leaving the home there was sufficient in her eyes to make her position in the home intolerable. It is in this setting that the two questions which now arise must be determined, namely, were the offers to return genuine, and if so, was appellant justified in refusing them?

It is convenient first to examine the evidence of appellant. He did not categorically say he believed that his wife was not genuine in her offers to return. His refusal to entertain any offer appears to stem from his attitude, now firmly entrenched, that he had had enough after two years and was determined to divorce her. We will cite the relevant passage in his evidence. He said:

"For two years she did not come back then I decided not to take her back. I had difficult life for two years after she left and decided not to take her back."

"When my wife asked for variation she said she wanted to come back to me. She said this in Court. I replied that I did not want her because of the period she was away from home. Then the interim order was made and the case was set down for hearing."

"After I won the case in Court I told my lawyer I wanted my wife back. I was present in Court when my lawyer asked my wife to be reconciled but she refused. This was on 2.11.73. She did not approach me for two years and she left me in hardship that is why I did not want her back later."

"In June 1975 my wife did not make personal approach to return to me she said she wanted to return through her lawyer. That was the first time she said she wanted to come back to me. I did not take her back because of the hardship I had suffered. She had refused even when my uncle went to bring her back."

Appellant was quite unwilling to entertain or discuss her return so there was little she could do. Counsel said she ought to show contrition without explaining how this could have been done, except by letter, but it is clear appellant was adamant that he would suffer no more "hardship". He himself made no reference to the strong plea of counsel of his abhorrence of the charges made.

Dealing now with the question whether respondent was genuine in her offers to return or whether they were a mere subterfuge and insincere. An experienced magistrate, who is himself of the same race and would appreciate the outlook of the parties, concluded that respondent was genuine. He had the advantage of observing both parties. The learned judge confirmed that finding. This Court must, of course, examine the position. Respondent was faced with an inability to maintain herself. She had her young family for whom, only after a strongly fought Court case, she was able to get maintenance. She was a good mother seeking proper support. She swore that she desired to return and took the steps earlier outlined. We can see no reason to disturb the finding that her offers were genuine. It should be noted that this finding was not specifically made a ground of appeal.

But the contention has been made that the repetition of the charges of cruelty and adultery at this late stage justify appellant in rejecting the offers. He rejected an offer before the proceedings, although be it said, he denied getting the letter. Whether he got the letter or not, his attitude was and is completely predictable. The defence, it should be noted, is that by his conduct he made her believe he had committed adultery.

Respondent was not bound to accept the result of the findings in the earlier proceedings but they may be a factor to be weighed. We have earlier outlined matters which are important on this issue in the way of appellant persisting in conduct which roused strong feelings of jealousy in his wife. The ground of appeal is that respondent made an unfair and unfounded allegation of adultery and persisted in that allegation. Respondent was faced with a husband who was determined to divorce her on the ground of desertion and who was determined not to reinstate her. She must either accept a divorce or contest it. She chose the latter, and, on legal advice, pleaded to the cause. She was justified in litigating again the whole of the circumstances of the marriage particularly appellant's association with Radha-which caused her to leave home. In the circumstances of this case as outlined we do not consider that the course, which these proceedings took, justify appellant in rejecting his wife's request to receive her back. In our judgment the ground of appeal has not been made out.

We turn now to deal with the question of estoppel although, in our view, it was not open to appellant to raise that topic in the way in which this case was conducted. Divorce is a matter in which the Court is required to enquire into and be satisfied on the grounds alleged: vide Sections 57 and 70(b) of the Matrimonial Causes Ordinance 1968. It is not a matter strictly but invt involves s and pubd public policy. The courts held, however that a petitioner could not base a case upon a ground which had in earlier proceedings been the matter of a contrary judicial decision in a de court: Bright v Bt v Bright#160 (supra) The next question was whether a respondent should be estopped in matters of defence This meant that a defendant would be estopped from meeting, by way of answer, the allegation made in a petition. The result wouen follow the earlier decisdecision because no defence could be offered. Estoppel was held to be applicable to grounds of defence, or answer: The cases are discussed in Hill v. Hill&#1654) 954) 1 All E. R. 491. This became clear so far as concerned the practice in divorce court: vide Halsbury's Laws of England 3rd Vol. 12 p. 294 para. 5u6. But the question warises here is whether or n or not findings in a Magistrate's Court in respect of maintenance can amount to estoppel on any issue. In;H v. Hudson&#1i> [1948], 1 All E.R. 773 Lord Merriman P. held thatna finding of persistent cruelty in a court of summary jurisdiction even though affirmed on appeal to a Divisional Court did not effect an estoppel. In Harri. Harriman (1p. 123, [1910] A10] All E.Rl E.R. (Reprint) 85 (C.A.) it was held that proof of a matrimonial offence in a Magistrate's Court does noe thect of estoppel. The position was made clear in&#1in Whittakerhittaker&#1i>&#160 [1939] 3 .R. 833 in which Lich Lord Merriman P. said at p. 837: