Hahe v Melzear [1981] SBHC 5; [1982] SILR 1 (4 December 1981)

[1982] SILR 1

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 65 of 1981

HAHE

v

MELZEAR

High Court of Solomon Islands
(Daly C. J.)
Civil Case No. 65 of 1981

4th December 1981

Divorce - discretion statement - omission of acts of adultery from statement - effect on exercise of discretion.

Facts:

The wife Petitioner sought a decree nisi on grounds of cruelty and asked for the court to exercise its discretion to grant the decree notwithstanding her adultery with a man named in her discretion statement. The Respondent disputed the allegations of cruelty and asked the court not to exercise its discretion. In cross examination the Petitioner admitted further acts of adultery with persons not named in the discretion statement.

Held:

1. The Petitioner succeeded in proving cruelty.

2. What the court required was complete frankness at the hearing and this frankness outweighs a failure to disclose acts of adultery in the discretion statement (Gillooly v. Gillooly (1950) 2 All ER 1118 applied. The Petitioner was completely frank at the hearing.

3. As the marriage had broken down the discretion would be exercised and the decree granted.

For Petitioner: A Radclyffe
For the Respondent: G. Strang

Daly C.J: This case is a defended divorce Petition based on allegations of cruelty.

Some facts are not in dispute. They are as follows:

The Petitioner (EUNICE HAHE) married the Respondent (SHEM MELZEAR) on 2nd March 1973. The Petitioner finally left the Respondent in December 1978 or January 1979. During the time the parties were living together they had four children, the Petitioner says one in each of the years 1974, 1975, 1976 and 1977 where as the Respondent, despite an admission on the pleadings says in his evidence that the last child was in fact born in 1978. The other admitted matters are that on three occasions the Respondent used violence to the Petitioner and on three occasions the Petitioner ran away from the matrimonial home and returned to her parents’ home. On two of these occasions the Petitioner returned. On the last occasion she remained with her parents and remains there yet.

One other matter is not in dispute in substance and that is that in 1978 the Respondent had sexual relations with another woman. This originally formed the basis of a petition in adultery. However the unusual circumstances of this relationship made it clear that the adultery was partially at least as a result of conduct conducing by the Petitioner and therefore the present Petition alleging cruelty was filed. But this adultery and the circumstances surrounding it remain relevant to the present petition. I shall consider the matter later in relation to an allegation of excessive sexual demands made by the Respondent on the Petitioner.

The Petitioner’s evidence of violence goes beyond the three occasions admitted by the Respondent. These admitted occasions were:

(a) in 1974 when the Respondent admitted striking the petitioner with loia cane on her legs and shoulders. This he said was as a result of his wife “talking hard” at him when she was told by him not to associate with women who spread rubbish stories;

(b) in 1975 when he struck her with a stick of about one inch in diameter causing marks during an argument about the children; and

(c) in January 1978 when he struck her a blow with open palm to the face causing swelling to the face when he told her that she was associating with another man.

The Petitioner however speaks of continual violence throughout the marriage. She said in her evidence that this violence was caused by two matters; one the jealousy of her husband; the second the continual sexual demands of her husband which if refused resulted in violence. On three occasions the Petitioner said there were blows with a stick. On other occasions the Respondent would strike the Petitioner with his hand. The Petitioner maintained that this also occurred when she was pregnant. A loia cane and a bamboo cane were also used in the evidence addressed to her. She also gave evidence of threats with a copra knife and an axe.

The Petitioner’s case was that, as a result, on 5 occasions she ran away to her parents but, for custom reasons, was persuaded to go back with her husband who promised to mend his ways. But this did not happen and on each occasion the sexual demands and jealousy continued until the final departure at the end of 1978/beginning of 1979 following a severe act of violence of a blow to the fact that caused swelling and rendered the Petitioner unable to eat for a period of one week. There were also allegations that the Respondent failed to assist the Petitioner in looking after the home and garden and the children to such an extent that hardship was caused to the Petitioner.

As I have indicated the Respondent denies all these allegations.

Thus the primary question is one of fact to be decided on the evidence. There is some support for the Petitioner’s allegations of violence on the Respondent’s own admissions on oath. There is also support in the evidence of the Petitioner’s father who said that on six occasions his daughter arrived at their house showing on her body marks of violence.

As far as the allegation of excessive sexual demands is concerned that is supported to some extent by the Petitioner’s conduct in relation to the admitted adultery. What happened was, according to the Petitioner, that she was so tired of the sexual demands that she told her husband that he should find another woman so that she could get some rest. This he did and when the woman came to speak to the Petitioner, the Petitioner said she was tired and that the Respondent and the woman should do as they wished. I find that this is an accurate picture of the facts. That being so on this occasion the Petitioner certainly acted as a woman faced with sexual demands which she could no longer sustain.

I must, against this background, decide which version of the marriage I accept. Looking at all the evidence and in particular the demeanour of the parties and the way in which they gave evidence I have no hesitation in concluding that it was the Petitioner who was telling the truth. She is a voluble and excitable woman but she gave her evidence in a frank forthright way that was most impressive. The Respondent on the other hand was unable to answer questions clearly the first time; he looked like a man who was not at all sorry that he had used violence on his wife. He showed no remorse whatsoever and his reason for not striking his wife during pregnancy, that is, that his sister had told him it was dangerous was far from convincing.

I therefore find that the allegations made in the Petition are true. I also find that these allegations amount to cruelty within the meaning of section 5(1)(c) of the Islanders Divorce Act (Cap. 48). I therefore find the case for the Petitioner proved.

The Court is asked to exercise its discretion in relation to the Petitioners admitted adultery. A discretion statement has been filed which contains an admission of adultery in 1981 with one named man. However in cross examination the Petitioner admitted adultery with two other named men. These admissions should have gone into the discretion statement and in the course of the case I gave considerable thought to what effect the omission of these particulars should have on my approach to the evidence. Nevertheless I come to the conclusion that I should believe the Petitioner despite these omissions. Now I must consider what effect they should have on the exercise of my discretion.

I should make it clear that the Court will regard seriously any lack of frankness in disclosing adultery in relation to which discretion is sought. However what is required is complete frankness at the hearing and this frankness outweighs a failure fully to disclose acts of adultery in the discretion statement (Gillooly v. Gillooly (1950) 2 All ER 1118). The Petitioner was certainly frank at the hearing.

These acts of adultery took place after the separation of the parties and there is no evidence that they led to the breakdown of the marriage.

I also find that the marriage has broken down. The Petitioner states that she does not wish to return to the Respondent. They have lived apart for three years. I was not impressed by the Respondent’s reasons for opposing the divorce.

In all the circumstances I am prepared to exercise my discretion in favour of the Petitioner.

Order

Decree nisi on ground of Respondent’s cruelty to the Petitioner.

Exercise discretion in relation to the Petitioner’s adultery.