Leslie v Leslie
| Judge | Inniss, J.A. |
| Judgment Date | 01 November 1979 |
| Neutral Citation | BZ 1979 CA 22 |
| Docket Number | Civil Appeal No. 1 of 1979 |
| Court | Court of Appeal (Belize) |
| Date | 01 November 1979 |
Court of Appeal
Blair-Kerr, P.; Duffus, J.A.; Inniss, J.A.
Civil Appeal No. 1 of 1979
Family Law - Husband and wife — Divorce — Ground
Facts: Husband alleged cruelty and constructive desertion based on conduct of wife — Trial judge dismissed application — Whether judgment against weight of evidence — Whether trial judge erred in holding conduct specifically aimed at him — No evidence of conduct of such a grave and weighty character on part of wife to give appellant cause to leave or to support ground of cruelty — No evidence conduct of wife caused injury to appellant's health or induced in him reasonable apprehension of such injury
Held: Appeal dismissed with costs. It is not necessary for the petitioner to prove cruelty by showing that the petitioner's conduct was specifically aimed at petitioner.
This is an appeal from an order of the Chief Justice dismissing with costs the appellant's petition for divorce from the respondent. The petition had been brought on the grounds of cruelty and desertion and was opposed by the respondent. The petitioner admitted his own adultery but asked the court to exercise its discretion in his favour.
Some of the facts were in dispute; others were not.
The parties were married on 2nd August, 1955. In the space of seven years five children had, been born of the marriage. After 1962 the respondent had no children until 21st June, 1968, when the sixth, Sherman, was born. According to the petitioner, shortly after the birth of the fifth child on 31st May, 1962, the respondent got pregnant and lost the baby. After that she stopped allowing him to ejaculate into her, saying that, he was going to get her pregnant.
Petitioner was a, musician, and on 12th September, 1963, he left Belize on visits to the neighbouring Republics of Nicaragua and Honduras with a popular band called “Los Belicenos”. According to him, he returned to Belize in August, 1964, after 11 months' absence. The respondent, however, said that he returned in October, 1965, after two years' absence. The length of his stay abroad is material as regards his contention that the length of the period between the conception of the fifth and sixth children was due to the practice of coitus interruptus on which the respondent insisted.
In the words of the petitioner, “A few months after Sherman's birth” he consulted Dr. Perez Schofield about the effects of the practice of coitus interruptus. The doctor advised him that if this was a persistent practice (by which he meant a practice continued over a period of six months to a year nightly) he should desist. In the Doctor's opinion it could result in “decrease in power of sexual relationship, personal unsatisfaction and breakdown of relationship and frustration”. The doctor noticed that petitioner was in a rundown condition but could not recall that he had complained that his rundown condition was due to the practice. He got the impression that the petitioner was suffering from sexual dissatisfaction and attributed his rundown condition to the practice. He did not examine the petitioner.
According to the petitioner, he told the respondent about the trouble which the practice of coitus interruptus was causing him and also about the doctor's advice. This the respondent denied, as well as the petitioner's allegation that she had compelled him to practice coitus interruptus. She said that he had at no time complained to her about not permitting him to have sex.
The petitioner conceded that after he had seen the doctor full intercourse took place between the parties, and on 21st June, 1968, the child Sherman was born. Indeed, according to the petitioner, before Sherman's birth the respondent had got pregnant with another baby which she “threw away”.
The respondent denied having had a miscarriage at any time.
In January, 1968, the petitioner left Belize for the United States of America. At that time he had no intention of bringing the marriage to an end. His object in going was to better his condition. Around Xmas, 1971, while the petitioner was still in the United States he was involved, in an accident, as a result of which he suffered a back injury. This at times caused him difficulty in having sexual intercourse. He could, however, have it off and on.
On 29th January, 1972, the petitioner returned from the United States. He found the respondent and the children living with her mother at Tigris Street. From there he and the respondent, with the children, moved to a house at the corner of Prince and George Streets.
The accounts of the petitioner and the respondent differed on the question of the sexual relationships between them after the return of the former from the United States. Indeed the accounts given by the petitioner himself, as I understood them, differed. At one time he seemed to be saying that she allowed him to have sex with her only once — the night of his return — and then told him he would not eject in her anymore. At another he said that he tried to have sex with his wife the night he returned but did not succeed. According to the respondent, she and the petitioner had sex the night he came home, twice in February, 1972, and on 11th March, 1972. She could not recall having sex with him after that because by then he was sleeping out at night and returning in the morning. She said she had never refused to have sex with him and had allowed him to discharge inside her.
According to the petitioner, in the last week of May he carne home one day to find that she had refused to cook a leg of pork which he had bought. He took this to mean that she did not want to cook for him. He thereupon left the house immediately, because, said he, she did not want him to have sex with her and neglected to cook food. The respondent denied that she had refused to cook a pork leg for the petitioner and added that he had left the home on April 5th, 1972, after having demanded his passport and threatened to move out on the previous day. On 5th April, 1972, her husband had not brought anything home from market for her to cook.
The respondent said in evidence that after the fifth child was born on 31st May, 1962, she thought that she had enough; but what to do. She knew her husband would still want more and she would go along. But when she had the sixth, she thought she had enough. She agreed, however, speaking of the period 1965–967, that she no longer enjoyed having sexual intercourse with the petitioner; and said that at the time he left for the United States they were having sexual intercourse two or three times a year. Between 1962 and 1967 neither she nor the petitioner had used contraceptives. Maybe it was not her time to have a child. She did not want to leave the home, neither did she want the petitioner to leave. She wanted him for her children. She was not the person who caused her husband to leave the home.
It was undisputed that while the petitioner was away in Nicaragua and Honduras the respondent received no money from him for herself or the children. She maintained the children first by getting assistance from her parents and later by getting a job at the Fort George Hotel. According to her, she continued to maintain the family from 1965 to 1967 because the petitioner was not working. When she stopped work in October, 1967, he got a job as a waiter at the Bellevue Hotel but left for the United States in January, 1968. During the four years that he was there, according to her, she received no money from him for herself or the children and he wrote no letters to her except an initial one to say he had arrived safely. According to the petitioner, after he had obtained work, which took about three months, he used to give his sister money to send to the respondent and continued to do that up to the time of the accident. In cross-examination, however he admitted that he did not provide maintenance for the family when he was not at home. When he was away, he could not support his wife because he did not earn enough money.
When the petitioner finally left the house, he instructed the shopkeeper concerned not to extend any credit to his wife, and be gave no money to his family after he left.
On 28th June, 1972, the respondent obtained a court order for maintenance against the petitioner.
The learned Chief Justice, for reasons which he gave, found it difficult to accept the petitioner's evidence as regards the practice of coitus interruptus. Applying Kaslefsky's case (1950) 2 All E.R. 398, however, he held that even if the petitioner's evidence were true, the petition must fail. So far as cruelty was concerned, he held that to establish cruelty it had to be proved that the conduct of the respondent was aimed at the petitioner, but there was no such evidence in the case. On the contrary, it appeared that her object was simply to protect herself from having anymore children and, according to the petitioner himself, she had told him so. He also held that in fact the petitioner was not suffering from any deleterious effect of sexual malpractices because, having left the matrimonial home in May, 1972, by June of that year it seems he had found compatible female companionship. With regard to the alleged refusal of the respondent to cook a leg of pork, a miniscule matter of that nature could not be regarded as an act of cruelty in itself.
Adverting to the question of desertion, the Chief Justice held that it could not be successfully argued that the wife's refusal to cook the leg of pork was the last straw which broke the camel's back because that act, even if it were true, would not be supported by the previous complaint of coitus interruptus “since the law is that it is conduct which must be aimed at the petitioner and in this case that evidence is sorely, lacking”.
One of the grounds of the instant appeal is that...
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