[1985-1986] SILR 204

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE No. 175 of 1986

VALENTI

v

VALENTI
Before: Ward C.J.

22 August 1986
Judgment: 26 August 1986

Divorce - cruelty - test of

Facts:

The wife petitioned the court for a decree nisi on the grounds of her husband's cruelty alleging that on three occasions he punched and kicked her. She further sought the court's discretion in relation to her adultery. The respondent opposed the petition and denied the cruelty.

Held:

1. In deciding whether the matters complained of amounted to cruelty, they must be more than trivial; they must be serious and must have caused injury to health or apprehension of such injury. (Collins v. Collins (1963) 2 AER 966 at p. 977 per Lord Morris of Borth-y-Gest followed).

2. While a single act may be so grievous as to amount to cruelty, that is not the way cases are generally decided. Instead, the court must look at the sum total of the reprehensible conduct to decide whether cumulatively looking at it from a reasonable person's point of view and considering any possible excuse for it, it was such that the petitioner ought not to be forced to endure it. (Collins v Collins (1963) AER 966 at p. 992 per Lord Pearce citing with approval Lord Merriman's test followed).

3. Although the first incident endangered health and therefore amounted to cruelty, the second did not. Thus, cruelty was not proved on the facts as a whole.
Accordingly, the petition was dismissed.

Cases considered:
Gollins v. Gollins (1963) 2 AER 966
Lauder v. Lauder (1949) 1 AER 76
Kenneth Brown for the Petitioner
Andrew Radclyffe for the Respondent

Ward CJ: This Is a wife's petition for a decree nisi presented on the grounds of the respondent's cruelty. The petitioner is a citizen of Fiji and the respondent is a citizen of Italy. This case is, therefore, heard under the English Matrimonial Causes Act, 1950.

The petitioner and respondent were married on 15th April 1981 at Wandsworth Registry Office, England and have lived in England and the Solomon Islands. There are three children of the marriage aged 5 years, 4 years and 3 years.

The petitioner prays three allegations of cruelty all committed in the Solomon Islands. The evidence adduced by the petitioner was that:

1. In October 1983 the respondent woke the petitioner from her sleep by slapping her across the face, and, after she got out of bed, slapped her again across the face, kicked her on the thigh and threw a can of insect spray at her. She was frightened but not injured.

2. In Feb. 1984, the respondent asked her where she had been, punched her on the chest and on the right eye, pushed her to the floor and kicked her in the middle of her back. The petitioner left and went to the house of a friend and was later collected by the respondent. Again the petitioner was upset and respondent angry. 

3. In Aug. 1984 the husband found a photograph of the petitioner sitting on the floor apparently nude. It had not been taken by him.

He threw the photo at her and tipped her out of bed. She fled to her cousin's room and was pursued by him. He gave her a "Chinese Burn" on her wrist and threatened to break her wrist. She fled and he again pursued her. He kicked her thigh once.

On one of these occasions, the blows caused bruising.

She called witnesses to the incidents in February and August 1984.

She has sought the exercise of the court's discretion in relation to her adultery between October 1983 and the present with one named man.

The respondent opposes the divorce. He denies cruelty but admits-

1. In relation to the Incident in October 1983 that, about that time, he had an argument in the night but denies any violence.

2. In relation to the incident in February 1984, he stated he was annoyed because he had seen her at the house of the man named in the discretion statement and she had denied it at first. That angered him and he slapped her on the face and shoulder and pushed her or. the floor. He denies punching or kicking her.

3. In relation to the incident on August, 1984, he stated that he was upset about the photograph. He argued with her and grabbed her by the hand. He denied kicking her or twisting her wrist.

I do not need to recite the evidence further. I am satisfied on the evidence before me that the respondent did punch, slap and kick the petitioner in February 1984 as alleged by the petitioner and he did twist her wrist and kick her in August 1984. I am not satisfied that he committed the violence alleged in October 1983.

Since the end of 1984, the respondent has had to stay out of the country for protracted periods because of problems with immigration permits but has visited here. He alleged that, recently in June and July, 1986, he had sexual intercourse with the petitioner and pleads that this had condoned the earlier acts. I am not satisfied that such sexual intercourse occurred and therefore reject the suggestion that the petitioner has condoned this conduct. Finally, it is suggested by the respondent and agreed by the petitioner that the respondent has, up to the present time, been trying to persuade the petitioner to continue with the marriage. She has told the court she does not feel it can ever be mended.

The court has to decide whether these acts amount to cruelty and whether it will exercise its discretion in relation to the petitioner's adultery.

In deciding whether this amounts to cruelty, the court must consider the whole matrimonial relationship. Numerous authorities point to the fact that all the incidents must be considered together and judged in relation to the surrounding circumstances. Put another way, the question of whether these acts amount to cruelty or not can only be answered after all the facts have been taken into account. Those facts may include consideration of the conduct of the petitioner and any possible provocation by her.

There in no precise definition or cruelty under the law. In Gollins v. Gollins (1963) 2 AER 966 at 977 Lord Morris of Borth-y-Gest stated "Cruelty is a matrimonial offence and an allegation of cruelty is a serious one. To be found guilty of cruelty involves not only a slur which would be deeply wounding to any self respecting person but also involves certain specific consequences. The matters complained of as amounting to cruelty must, therefore, extend much beyond the trivial or the casual. They must be serious matters ....... Not only must the matters complained of be serious, but they must also be such as to have caused injury to health or a reasonable apprehension of such injury."

He also approves of the statement of Pearce J in an earlier case of Lauder v. Lauder, that "in a cruelty case the question is whether this conduct by this man to this woman is cruelty".

In this case, it is clear to the court that the respondent was angry at the time of both the incidents in 1984. On the first occasion he had heard of her possible relationship with another man and, on the second, he had a photograph taken by someone else, of her wearing no clothes.

I accept in the first of those Incidents he acted violently and in a way no man is entitled to behave to his wife. At the same time I accept he was angry at the rumours he had heard and his wife's initial lie about her whereabouts.

In the second incident, it is clear on all the witnesses' evidence that, when the wife fled from the room, he was always trying to take her back to the bedrooms to discuss the photograph. He was clearly angry and determined to have an explanation but the twisting of the wrist was mainly. I accept, to take her back to their room and away from the hotel guests.

The petitioner has not alleged nor has evidence been led of any other cruelty by the respondent. Although she has prayed that he threatened her with violence on several occasions, she told the court he had not threatened her at any other time. The respondent has tried, more than once, to persuade her to make their marriage work and to withdraw the petition. No evidence was heard of her Intentions towards the named man in the discretion statement or, indeed, if he is married.

I must decide whether the two acts In 1984 amount to conduct that endangered life, limb or health or caused apprehension of such danger.

I find that the attack on February 1984 was such that it did endanger health but the incident of August 1984 did not. However the occurrence of the lesser assault after the first is a relevant matter in deciding if cruelty has been proved on the facts an a whole.

Whilst a single act may be so grievous that it must amount to cruelty, that is not the general way that cases have been decided.

Lord Pearce in the same case at 992 cited with approval Lord Merriman's test to decide whether there was injury or apprehended injury to health. In the light of that vital fact, the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that, from a reasonable person's point of view, after consideration of any excuse which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it. This was stated in relation to mental cruelty but I feel the test is the same in such cases as this.

In this case, looking at the matters as a whole, I cannot say I am satisfied that the respondent has treated the petitioner with cruelty and the petition is dismissed.