Tavake v Tavake [1997] SBHC 90; HCSI-CC 280 of 1996 (7 February 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.280 of 1996

ELIJAH TAVAKE

-v-

HILDAH TAVAKE

High Court of Solomon Islands
(Palmer .J)
Civil Case No.: 280 of 1996

Date of hearing: 23 January, 1997
Judgment: 07 February, 1997

G. Suri for the Petitioner
A. Nori for the Respondent

Palmer J.: This is a petition of Elijah Tavake (the Petitioner) inter alia for divorce on the ground that since the marriage, the Respondent had treated the Petitioner with cruelty. A number of grounds had been raised in the petition and in oral evidence in support.

The Respondent on the other hand had filed a cross-petition for divorce on the grounds of adultery.

The allegations of cruelty.

It is clear on the evidence before this court that all the allegations of cruelty occurred after November of 1994. Since 12th June 1982 to November 1994, the parties had lived together as husband and wife without any major problems The marriage of the parties however took a drastic down-turn from December of 1994. It is undeniable in my respectful view, that the major cause of that down-turn was directly related to the admissions of adultery made by the Petitioner to the Respondent on Christmas eve of 1994.

From then on, it is clear on the evidence that the parties had quarrelled, fought, and hurled abuse at each other. The quality of the marriage life of the parties had suffered terribly since then.

I accept the virtually unchallenged evidence of the Petitioner that there had been severe fights between him and the Respondent, wherein the Respondent had become violent and uncontrollable at times.

I also accept that some form of compensation had been paid by the Petitioner as demanded by the uncles of the Respondent in respect of the adultery committed with the niece of the Respondent in December of 1994. This may have pacified the uncles of the Respondent, but it appears that it did not have the lasting and permanent healing effect on the Respondent. There is evidence to show that the parties attempted to resume normal marital relationships after the admission of adultery by the Petitioner in December of 1994. When the Petitioner went to Fiji on an exchange arrangement made by his employer, ANZ Banking Group Limited, he took his family with him. He also made arrangements for the Respondent to undertake studies pertaining to her work while they were in Fiji together. Despite this trip overseas, it appears that it did not assist the parties much in changing their attitudes and responses towards one another. There is evidence to show that throughout their stay at Fiji, the parties did not make much progress in reconciling their differences. There is unchallenged evidence to the effect that during their stay in Fiji, the parties were involved in some embarrassing and vicious fights where the Police on one occasion had to be called by the neighbours to attend to the parties’ row.

The deteriorating condition of the relationship of the parties appears to have been reflected in the fact that the parties did not return together to the Solomons as may have been expected of a family. Instead, the Respondent came first and the Petitioner and his son came later. It is clear on the evidence that things did not improve on their return. It is not necessary for me to repeat in detail the rows, fights, and quarrels of the parties as adduced in evidence before this court. Much that has been given in evidence by the Petitioner is not in dispute, other than the conflicting claims as to who the instigator and agitator of those incidents was.

On one hand, the Petitioner perceives the incessant nagging and agitating of the Respondent culminating in much physical threats and violence against his person as cruel and unnecessary. The Respondent on the other hand appears to perceive this behaviour on her part as justifiable in the circumstances. From the subjective perceptions of each party, this court understands and appreciates the personal struggles that each have gone through, especially the devastating effect the knowledge of the infidelity of the Petitioner on the Respondent. This court notes the dramatic change in the behaviour, conduct, and demeanour of the Respondent towards the Petitioner, from December of 1994. She was no longer the same person she used to be, and perhaps unfortunately, or fortunately, depending on how one perceives the issues, it was an irreversible change. Whilst this court must refrain from taking a judgmental approach, it is inevitable that it has to make a decision on whether the actions of the Respondent in the circumstances were cruel or not.

The Islanders Divorce Act (Cap 48) does not define cruelty. However, there are numerous English cases on this issue which are directly relevant. In Rayden on Divorce, 8th Edition, at page 120, the learned Author quoting Lord Davey in Russell v. Russell [1897] UKLawRpAC 31; [1897] AC 395, 467, stated that "legal cruelty" may be defined as "conduct of such a character as to have caused danger to life, limb, or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger".

The learned Author then went on to point out a general rule in all questions of cruelty, that the whole matrimonial relations must be considered (ibid page 122). In Edwards v. Edwards [1948] 1 All E.R. 157, 160, per judgment of Lord Merriman, it was held that in determining what constituted cruelty, regard must be had to the circumstances of each particular case. In Waters v. Waters [1956] 1 All, R. 432, 437, the character and susceptibilities of the parties should also be considered. In Thomas v Thomas [1947] A.C. 484, 488 per Lord Thankerton, it was held that" Physique, temperament, standard of culture, habits of verbal expression and of action, and the interaction of the spouses in their daily life" are relevant considerations.

The evidence.

The evidence before this court has shown that since December of 1994, the Petitioner had suffered from threats of and physical violence in the marriage from the Respondent. I do not discount on the other hand, that the Respondent may have also suffered some form of violence from the Petitioner. The evidence however, points overwhelmingly in favour of the Petitioner as more the victim of the violence than the aggressor; though I appreciate that the Respondent may have considered herself a victim of the infidelities of the Petitioner. These two matters however in my respectful view can be distinguishable. It depends so much on how one perceives the appropriate responses or way of dealing with these things. An element of anger resulting in some form of physical violence in my respectful view is inevitable in such situations. Continuous reproaches, complaints, accusations and nagging and physical violence however may not be acceptable and tolerable in most situations. In others it depends on the level of tolerance and acceptance of an individual. In this particular case, the Petitioner does give the impression of a highly tolerable nature; but that it then got a bit too much for him to bear.

There is clear undisputed evidence to the fact that the Petitioner had been verbally and physically abused on numerous occasions both in private and public; that his life had been threatened with harm by the Respondent during the times that they had fought; and that he had been physically injured and had to be hospitalised on one occasion. It is clear that the situation had become so bad and tense that it was no longer possible for the Petitioner to reason with the Respondent on such occasions. The rows and fights were no longer confined to the private precincts of their home but that it spilled over into the public arena where on a number of occasions the police had to be called by the neighbours of the parties to attend the scene. In such situations it is clear that the parties are no longer in control or in charge of their affairs; an important element in any marriage relationship. On one such occasion, a neighbour had to intervene to disarm the Respondent from a weapon (a piece of iron) that she had been threatening the Petitioner with. On other occasions, their rows were held in public places. To a large extent, the incidents had been instigated by the Respondent, and were not done in a spirit of respect and reconciliation, but more out of spite, anger and hatred. The Petitioner stated how he had sought to remonstrate with the Respondent on numerous occasions, with the view to settling the burning issues between them but that he had found it very difficult to reason with the Respondent. The use of alcohol by both parties also did not help things.

Whilst this court can appreciate the hurt and offence that the infidelities of the Petitioner may have caused the Respondent, (and this court would not seek to minimise that in anyway) on one hand, her behaviour and conduct in the circumstances cannot be justified. If reconciliation was intended and desired by the Respondent then the behaviour and conduct displayed would not have assisted their marriage. I bear in mind that the behaviour and conduct of the Petitioner may not have been conducive to such ends.

Balancing all the evidence before me, I am satisfied that the Respondent's conduct was of such a character as to have caused danger to the life, limb and health of the Petitioner or as to give rise to a reasonable apprehension of such danger.

Cross Petition on ground of adultery.

A number of acts of adultery have been pleaded in the cross-petition of the Respondent but with respect, only one of them has substance. The rest have not been supported with sufficient evidence and accordingly must be dismissed.

The one with substance relates to the allegations of adultery with the niece of the Respondent. The Petitioner however does not deny or dispute this. He had already made admissions to the Respondent in December of 1994 and as demanded by the uncles of the Respondent, had paid monetary compensation. Since December of 1994, there is no evidence to suggest or show that the Respondent had not in any way condoned that act or acts of adultery between the Petitioner and the niece of the Respondent. The clear evidence before this court is that the parties had resumed normal marital relations. There is no evidence to suggest that no sexual intercourse had taken place between the parties since December, 1994; resumption of sexual intercourse between the parties has been viewed as conclusive proof of condonation (See Cramp v. Cramp and Freeman [1920]P 158; Turnbull v. Turnbull and Coats (1925) 41 T.L.R 507; Maslin v. Maslin [1952] 1 All E. R. 477; Tilley v. Tilley [1948] 2 All E. R. 1113, 1124). The parties not only resided together in 1995, but also went together to Fiji in that same year. I am satisfied accordingly that whilst adultery had been established between the Petitioner and the niece of the Respondent, this had been condoned by the Respondent. The evidence before this court showed clearly that the legal remedy for the wrong had been waived by the Respondent. Note no legal action was initiated by the Respondent when the admission was made by the Petitioner. Instead, her actions were consistent with that of a person who was seeking to forgive and remit the wrong and to reinstate the Petitioner to normal marital relations. It is not open accordingly to the Respondent to now raise those allegations of adultery as grounds for seeking a divorce from the Petitioner.

The other allegations of adultery, I have already pointed out, lack sufficient proof.

ORDERS OF THE COURT

1. Issue a decree nisi for the dissolution of the marriage between Elijah Tavake and Hilda Tavake celebrated on the 12th June, 1982 at Wahere Village, Marau Sound effective from date of judgment on the grounds of cruelty.

2. Dismiss cross petition of the Respondent on the ground of adultery.

3. Except for sufficient cause, the dissolution of the said marriage is to be made absolute three months from date of judgment.

4. Other matters including custody of the child of marriage is to be adjourned to chambers.

5. Direct that social welfare reports be prepared on the parties including the child of the marriage.

6 .Interim custody of the child shall remain with the Petitioner with reasonable access to the Respondent until further orders of this court.

7. Each party is to bear their own costs.

ALBERT R.PALMER
The Court.