Siebs v Siebs
| Jurisdiction | Guyana |
| Judge | Persaud, J.A.,Edward V. Luckhoo,Cummings, J.A. |
| Judgment Date | 31 March 1969 |
| Neutral Citation | GY 1969 CA 2 |
| Docket Number | Civil Appeal No. 57 of 1968 |
| Court | Court of Appeal (Guyana) |
| Date | 31 March 1969 |
Court of Appeal
Luckhoo, C.; Persaud, J.A.; Cummings, J.A.
Civil Appeal No. 57 of 1968
B.O. Adams, Q.C., with C.V. Wight, for appellant.
F.R. Wills for the respondent.
Family Law - Husband and wife — Desertion
Family Law - Husband and wife — Divorce
This is an appeal from an order made by a judge of the High Court whereby he granted a decree nisi to the respondent (wife) on the ground that the appellant (husband) had maliciously deserted her, and ordered the appellant to pay to the respondent the sum of $90 per month as permanent maintenance. The cross-petition by the husband was dismissed.
In her petition, the wife had sought a dissolution of the marriage on the grounds of adultery and malicious desertion, and she also prayed that she be granted maintenance for herself.
The husband, in his answer, alleged that the wife had left the matrimonial home, and as a result had maliciously deserted him whereby he prayed for an order of dissolution on that ground.
The judge dismissed the crass-prayer, and granted the wife a decree nisi on the ground of malicious desertion, having found that the allegation of adultery made by the wife was not proved.
In the arguments before us, two main points arose for discussion. Firstly, whether the Judge could properly have made the order for permanent maintenance where there was no separate petition for such relief, as is contemplated by r. 43 of the Rules of Court (Matrimonial Causes), Cap. 166 (Sub. Leg.); and, secondly, whether the judge, having dismissed the allegation of adultery, was right in making an order for a decree nisi based an malicious desertion, when, if anything, it could only be a case of constructive desertion. I will deal with these submissions in the reverse order.
Underlying the second submission must be the proposition that there is a distinction to be drawn between malicious desertion and constructive desertion with the result that where (as in the instant case) the petitioner it was who left the matrimonial home, the Court may not grant a decree nisi based on malicious desertion.
Unlike the English legislation where the term ‘malicious desertion’ is unknown, s. 9(1) of the Matrimonial Causes Ordinance, Cap. 166, provides that a petition for divorce may be presented on the ground that the respondent has been guilty either of adultery or malicious desertion with or without adultery.
The term ‘malicious desertion’ has been inherited from the Roman-Dutch system, and is desertion proceeding ex malitia, i.e., from design or premeditated determination. Under that system, a petitioner seeking a divorce on the ground of malicious desertion was required to ask for an order for the restitution of conjugal rights, failing which, for divorce.
As was said by Shippard, J., in Gibbon v. Gibbon (1881–82) 2 E.D.C. 280 at page 284:
“… by the rules of Roman-Dutch law judgment in a suit for restitution of conjugal rights must be obtained as a necessary preliminary to a decree a vinculo matrimonii on the ground of malicious desertion. This being so, it seems to me to follow that a decree of restitution of conjugal rights so obtained may fairly and openly be treated as a legal fiction, devised with a view to ulterior proceedings for divorce… The theory of the Roman-Dutch law appears to have been that divorce should never be granted while there remained hope of reconciliation. In cases of alleged malicious desertion the Courts require proof that no such hope remained, and therefore would not dissolve a marriage on such ground till after proof of contumacious disobedience of a decree of restitution of conjugal rights.”
But it is no longer necessary in this country to secure an order for the restitution of conjugal rights as a pre-requisite for a decree nisi for malicious desertion. As a matter of fact, even the doctrine of constructive desertion came to be recognised by courts administering law in accordance with the Roman-Dutch system. For instance, in South Africa, this doctrine was not unknown, and principles similar to those applied in the British Courts were beginning to be applied to cases there. In Sutherland v. Sutherland, (1910) N.L.R. 219, for instance, Broome, J., said: “Desertion is not to be tested by merely ascertaining which party left the matrimonial home first; the one who intends bringing the cohabitation to an end commits the desertion.” Again, in Crossley v. Crossley, (1912) W.L.D. 99, Bristowe, J., said:
“The question seems to me to be who is the person substantially responsible for the separation. It does not matter which of the parties actually leaves the other. The party who really deserted is the one who compels the desertion.”
No clearer language is, in my view, required to indicate that the concept of constructive desertion had taken root, and was growing in the Roman-Dutch system, the practical result being that there is no real distinction between constructive desertion and malicious desertion in the sense that malitia must exist in both. As it has been put by Verity, J., in Matthews v Matthews, (1931–1937) L.R.B.G. 459:
“There does not appear ever to have been reported a comprehensive definition by the courts of this Colony of the term malicious desertion', but consideration of cases decided in the courts of both South Africa and Ceylon gives assurance that under the Roman-Dutch system of law from which this ground for divorce has been adopted and to which one may rightly refer for guidance in this regard, malicious desertion must at least include a deliberate, definite, and final repudiation of the marriage state by one spouse against the will of the other and without just cause or legal, justification,”
And Luckhoo, C. J. (ag.) in Stull v. Stull, [ (1946) L.R.B.G, at p. 79], in referring to an allegation that the wife had deserted: “… but before I could find malicious desertion on her part I must be satisfied that she actually and wilfully brought to an end the existing state of cohabitation with the deliberate purpose of abandoning conjugal society.”
For my part, I can find no difference between the state of mind required to found malicious desertion, and that which must exist in the spouse whose conduct leads the other spouse to depart from the matrimonial home. The object is the same; the mode of achieving that object is different.
Finally, on this point, I wish to remark on Marnan, J.'s observation in Nisa v. Zaheeruddin, [ (1959) L.R.B.G, at p. 336] to the effect that Counsel appearing for the wife in that case was unable to indicate any real distinction between the concept of malicious desertion and desertion as known to English matrimonial law. Marnan, J., went on to quote with approval the dictum of Verity, J., in Matthews v. Matthews set out above.
My conclusion, therefore, on this aspect of the matter is that it was open to the trial Judge to make a finding of malicious desertion against the appellant even though the evidence led pointed to constructive desertion as is known to the English law, provided he could find from the evidence before him that it was the clear intention of the appellant by his conduct to put an end to the marriage. Were it to be otherwise, the state of the law being what it is, constructive desertion could not be a ground on which a petitioner can launch his petition in this country. Further, the courts of this Country have always recognised constructive desertion as a ground on which to dissolve a marriage.
With regard to the charge of adultery, the Judge found that he could not infer from the circumstantial evidence before him that that allegation had been proved and he accordingly dismissed the woman-named from the proceedings. He had before him evidence of association, and some familiarity, which he accepted, and of which he found that the wife had knowledge, and disapproved. And he utilized this evidence to find that the husband was guilty of maliciously deserting the wife. He deplored the husband's conduct in continuing his association with the woman-named, and found that it was this conduct of his which was ostensibly adulterous which drove the wife from the matrimonial home. The judge also described the woman-named as the husband's concubine, the relationship between them as an illicit affair, and the husband's behaviour as selfish, and his ways evil.
Counsel for the husband takes strong exception to the language used, for he says, it indicates that although the Judge refused to make a finding of adultery against the husband and the woman-named, yet he was in effect, by the use of the language already described, intimating that he was of opinion that the association was an adulterous one, which he could not properly do, having regard to his previous finding, and that he allowed that opinion to influence his finding of malicious desertion against the husband.
Counsel contends, further, that there was no specific allegation of desertion in the wife's petition, but rather there was a clear indication in her letter to her husband of her intention not to return to the matrimonial home; that the learned judge did not find that the husband refused to resume cohabitation, or that the wife made attempts at reconciliation; and in the circumstances, it was not open to the Judge to find desertion except upon an amended petition, particularly as the view of the Judge was that the husband had no desire to have the wife leave him.
In short compass, the learned Judge found that there existed a liaison between the husband and the woman-named for at least five years, that the wife remonstrated with the husband, but to no avail; that because of his refusal to put an end to the friendship, the wife left for the United States in 1962, with the clear intention of not returning to the matrimonial home; that the husband was...
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