Nomisa v Nomisa [2002] SBHC 126; HCSI-CC 20 of 2002 (27 September 2002)

CC No 20, 2002, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 20 of 2002

RONSON NOMISA

V

ROSEMARY NOMISA

High Court of Solomon Islands
(Palmer J.)

Civil Case No. 20 of 2002

Hearing: 13th September 2002
Judgment: 27th September 2002

M. Ipoh for the Petitioner
R. Ziza for the Respondent

Palmer J.: The parties were married at the Central Magistrates Court in Honiara on 1st December 1994. They have three children out of that marriage, Jacob Pangada born on 21st October 1994, Anthony Maclean born on 15th June 1996 and Price Wagi born on 25th May 1998. The Petitioner Ronson Nomisa now comes to court by Petition filed on 1st February 2002 and Amended Petition filed 3rd April 2002 for dissolution of the marriage on the ground of cruelty and that the marriage had irretrievably broken down.

On 9th September 2002 I heard evidence from the Petitioner in support of his petition. The Respondent did not attend but her Counsel, Mr. Ziza informed the court that she would not be contesting the petition.

The Petitioner painted a very bad picture of the Respondent as a nagging, jealous, violent and resentful woman. He described his wife as being very jealous of a child which he had before their marriage and that this jealousy turned to bouts of rage, violence, swearing and fighting throughout their marriage. Despite the fact that the Respondent was aware of the existence of this illegitimate child, he claims that whenever there was an argument, the Respondent would use that as a weapon to launch verbal and physical attacks on him. He says at one point, instead of cooking a meal for him, the Respondent placed broken beer bottles in two pots for him to eat. Had they been mixed with food he would have eaten them and gotten injured. He says he feared for his life as the Respondent had threatened him on numerous occasions that he would murder him when he was asleep. He was of the view that the Respondent was capable of carrying out her threats especially when she was in one of those angry moods. There were frequent fights between them at home and in public. He says the Respondent kept her nails long purposely for scratching him. He says that since 1999 he had left the Respondent and did not return though the Respondent had requested that he return. He says he had had enough of her ways and refused any attempts for reconciliation. He also says he had gotten involved in another relationship and intends to make a success out of this new relationship. He now comes to court to ask the court to dissolve his marriage with the Respondent.

After hearing the Petitioner I decided to have the Respondent called to verify in evidence instructions to her lawyer that when she said she did not oppose the petition she meant that she did not oppose the ground of cruelty relied on in the petition. I felt it was important that she be given opportunity to say so in open court as the evidence adduced had been especially damaging to her character as a mother and wife in the home.

The case was then adjourned to 13th September 2002. The evidence of the Respondent was equally damaging against the Petitioner and in a way balanced and explained what would have been a distorted picture painted by the Petitioner to this court. The Respondent’s evidence was that the Petitioner was a drunkard, irresponsible and insensitive as a person in the home, failing to shoulder his responsibilities as a man in the home, as a husband to her and as a father to their children. The Respondent described him as coming home on too many an occasion drunk. He described the Petitioner as a heavy drinker, who spends his money more often than not on drink. She says they virtually lived on credit for many a time. When payday came around, the Petitioner’s money would be used to repay money they had borrowed on credit and then borrow again to cover the period before the next payday. She confirmed putting broken beer bottles in a pot for the Petitioner because it got too much for her to bear and she thought that by doing this, the Petitioner would get the message. Unfortunately it never got through to him. She also states that she had a tough and difficult time having to keep house and look after the children all at once. The Petitioner was hardly home to assist her in looking after the children.

She confirmed requesting that they come together and try to sort out their differences but that the Petitioner refused and left the home. She stated that the only reason why she did not oppose the petition was on the ground that she too now had a baby from a different man and therefore felt it was no longer possible to have the marriage saved.

Definition of cruelty

Cruelty is not defined. Much of the law on cruelty therefore is judge-made, derived from the definitions pronounced by courts in England (Simpson v. Simpson [1951] P. 320, 328). We have to fall back therefore on what the learned judges from our former colonial master have said. Much of those definitions and which are still applicable to our situation here are contained in the authoritative text in Rayden’s Practice and Law in the Divorce Division Eighth Edition J. Jackson and D. H. Colgate (“Rayden on Divorce”). At page 120, paragraph 79 the learned Authors provide the following definition:

“‘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.”

Conduct amounting to cruelty

At page 122 paragraph 80 of Rayden on Divorce, the learned Authors say that: “To find cruelty it is not necessary to find physical violence.” In a number of English cases it had been held that nagging can be cruelty (King v. King [1953] A. C. 124, 146 H.L; Atkins v. Atkins [1942] 2 All E. R. 637 (held that wife’s persistent nagging amounted to cruelty); Tullis v. Tullis [1953] S. C. 312; Davis v. Davis (1954) Times, June 1st. In Thompson v. Thompson [1957] 1 All E. R. 161, 169 (“Thompson’s Case”) however, it was held that if a husband brings about a rift in the marriage by his loss of affection or staying out at night or otherwise he cannot complain if the wife nags him about his behaviour.

In my respectful view, the conduct alleged to be cruelty in this case falls within the conduct described in Thompson’s Case above. Had I merely heard evidence from the Petitioner I would have been convinced that blame should have been placed primarily with the Respondent. There is however always two sides to a story. After hearing the Respondent give evidence on oath regarding the allegations of the Petitioner I am not satisfied with due respect, that I can grant the petition on the ground of cruelty. No marriage is easy as we are dealing with two separate and different personalities corning together to live together and function as one. That in itself requires hard work, self-sacrifice (dying to self), commitment and a determination to make the marriage work and succeed. No person should enter into a marriage so lightly and thinking that if it doesn’t work I can get out of it. No, to the contrary, once you’re in it, you have a duty to work hard on the relationship and to fight for its survival and success. And where human strength fails, one must turn to God for strength to go through the marriage relationship and make it work. God says in his word (Malachi 2: 16) that He hurts divorce. Christians therefore have no option but to work at their marriage relationships. Instead of finding excuses and reasons to break away and tear the marriage relationship apart they have duty to work in building the marriage up. Where it has fallen down to rebuild its foundations again. Where there is hope there is a way and parties must not be so quick to hang up their gloves so to speak. Having said so, I do accept that there are situations in which marriages have been dissolved. Unfortunately, after hearing the evidence, this is not one of those cases where I am prepared to grant the petition.

I note adultery has been admitted by the parties but I am not prepared to take the initiative to grant a dissolution on that ground. The parties can take up another petition if they so desire.

Petition denied and dismissed.

THE COURT.