HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 154 of 1994

DESIMA SESEBO

-v-

FRED LALOGA

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 9 September 1994
Judgment: 30 September 1994

M.B. Samuel for Petitioner
J. Remobatu for Respondent

MURIA CJ: This is a petition for divorce brought by the petitioner against the respondent on the ground of cruelty.

The petitioner gave evidence on oath and stated that she and the respondent were married on 31 October 1982. They have three children their marriage, namely, Patricia who is now 14 years old, Margaret who is now 13 years old and Richard who is 10 years old.

In her evidence the petitioner also stated that before the 12 March 1993 the respondent would bash her up whenever there was a row between herself and the respondent. It was not clear what form those alleged bashings took but the evidence tends to suggest that they were by way of slaps on her face. She stated that those assaults were not severe.

However, the petitioner gave evidence that on 12 March 1993, the respondent against assaulted her. This time, she said, the assault was severe than the previous ones.

The circumstances surrounding the incident on 12 March 1993 were in general not in dispute. The respondent who had been working in Australia, came home for holiday. There was evidence which I accept that he was asked by his parents to come home following what was said to be a change in the petitioner's behaviour.

On his return from Australia in March 1993 the respondent went to stay with his parents at Tenaru Mala. On 12 March 1993 the respondent together with six other men went to the petitioner's house in a pick-up Reg. No. A-0472. They searched around the house while the respondent entered the house and searched the rooms. The other men also entered the house after that despite her protest that only the respondent should entered the house. It was then an argument erupted between the petitioner and the respondent resulting in the respondent hitting the petitioner's face. One of the daughters, Margaret saw the respondent assaulting the petitioner and she was crying.

Following the assault on the petitioner, the respondent left taking with him his belongings. He also took Margaret with him. Since 12 March 1993 the respondent has never returned to stay with the petitioner until the presentation of this petition.

The respondent agreed he assaulted the petitioner before 12 March 1993 as well as on that date. He said, however, that those assaults were not severe and that they would not be classified as cruel.

The assaults prior to the 12 March 1993, the respondent said, occurred during some disagreements and that when the petitioner would not listen, he would simply slap her. He agreed that as a result of those assaults, the petitioner would run away but later she would return to the house again.

As to the incident of 12 March 1993, the respondent agreed he came in a truck to the petitioner's house but only to collect his belongings. He denied coming to the house with anger. He further stated that, in fact, there were more than six of them who came with him to the petitioner's house. He further agreed he searched the rooms but said that he was searching for his belongings.

The respondent admitted assaulting the petitioner on 12 March 1993 but he said he was upset by the way the petitioner talked to him. He said that it was only a slap and that he never kicked or punched her. All the "bashing" complained of by the petitioner were all simply slappings.

There is some evidence that the respondent's father had been talking to the petitioner regarding her marriage with his son. It was after the respondent's father talked to the petitioner that the respondent decided to take his belongings out from the petitioner's house.

As this is a petition based on cruelty the standard of proof falling on the petitioner is one which is higher than that applied in the normal civil cases. This is so since the acts relied upon by the petitioner as constituting cruelty must be looked at, not in isolation to the circumstances of the whole matrimonial relationship between the parties, but must be considered together with the circumstances surrounding their relationship. This has been pointed out in Valenti -v- Valenti (198501986) SILR 204, at 206 where Ward CJ stated:

"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."

In so doing Ward CJ followed the decision in Gollins -v- Gollins [1963] 2 All ER 966 in particular what Lord Morris of Borth-y-Gest said at page 977 where he sated:

"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."

I bear in mind the principles stated in those cases and which I must also apply to the present case.

On the evidence, I find that the slappings which the petitioner alleged to have occurred before 12 March 1993 did in fact occurred. However the petitioner herself agreed that those slappings were nothing of a serious type. They occurred during exchanges of words between herself and the respondent. The acts complained of cannot therefore be said to amount to cruelty.

As to the incident of the 12 March 1993, the evidence shows that there was no argument between the petitioner and respondent until the respondent, having collected his belonging, was preparing to leave. As a result of exchange of words between him and the petitioner, he was so upset that he slapped the petitioner. The respondent admitted this and the petitioner's evidence did not show otherwise.

On the test as it now stands the evidence falls far bellow of establishing cruelty when one considers the event of the 12 March 1993. There was no evidence that the conduct of the respondent endangered life, limb or health or cause apprehension of such danger.

Even if the court took into account commutatively the acts complained of, both before and on 12 March 1993, the Court will still, undoubtedly, come to the conclusion that the evidence falls short of proving the matrimonial offence of cruelty.

In this case, I consider the evidence of the incidents alleged as well as looking at the matter was a whole. Having done so, I cannot say that the respondent has been guilty of cruelty upon the petitioner and the petition must be dismissed.

(G.J.B. Muria)
CHIEF JUSTICE