Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

HK v KK [2003] SBHC 143; HCSI-CC 257 of 2002 (18 July 2003)

CC No 257, 2002, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 257 of 2002

H. K

-v-

K. K.

High Court of Solomon Islands
(KABUI, J.).
Civil Case No. 257 of 2002

Date of Hearing: 15th July 2003
Date of Judgment: 18th July 2003

Mr. D. Tigulu for the Petitioner
Mr. R Ziza for the Respondent

JUDGMENT

Kabui, J. This is a Petition seeking a decree of nullity of marriage filed on 28th October 2002 by the Petitioner on the ground that her marriage to the Respondent had not been consummated due to the willful refusal of the Respondent to consummate the marriage. Counsel, Mr. Ziza, represented the Respondent at the hearing of the Petition. He had been instructed by the Respondent not to oppose the Petition and he did accordingly at the hearing. The Respondent was not present in Court at the hearing.

The Facts.

The parties were married on 29th November 1988 at St. Barnabas Cathedral in Honiara. They lived at the Fijian Quarter along the bank of the Matanikau River. The Petitioner is a registered nurse and the Respondent is also an employee of the Government in the same Ministry of Health and Medical Services. They have been married for a period of 11 years. During this period, the Respondent had always refused to consummate the marriage. In 1999, the Petitioner left the matrimonial home and has been living with her relatives elsewhere in Honiara.

The Law.

Section 13 of the Islanders’ Divorce Act (Cap. 170) states-

“..... (1) A marriage is voidable and upon the application of the petitioner the Court shall pronounce a decree of nullity in respect thereof, if it shall be proved-

(a) that the marriage has not been consummated owing to the incapacity or wilful refusal of the respondent to consummate the marriage; or

The Evidence.

The Petitioner gave evidence on oath. She said they had shared the same bed in the same room for 3 years. The Respondent had not shown any interest in her as his wife as would be the case between husband and wife. No act of sexual intercourse had taken place between them during that period of 3 years. After 3 years of this experience, the parties slept separately in separate places. The Petitioner slept in the matrimonial bed in the room and the Respondent slept outside of the room. Attempts by the Petitioner to entice the Respondent to have sexual intercourse had always been deflected by the Respondent. She made overtures from time to time, as a wife would do to her husband but without much success on her part. Discussion between them about the matter was always met by the Respondent saying he was busy with work. On one occasion, he said they needed a house before they could begin a family. The Petitioner went to seek help from the Church but nothing changed between them for the good. The Petitioner went on overseas study leave in 1997 and they both met up overseas but the Respondent only spent one night with her without consummating the marriage. On her return in 1999 she left the matrimonial home for good. There is no medical evidence to suggest that anything was wrong with the Respondent but the Petitioner did say in evidence that the Respondent used to admire persons of the same sex. Apart from that, she had no explanation for the Respondent’s willful refusal to consummate the marriage. She said she was not sure about his physical make-up because she was not able to get intimate with him. She said she was expecting the Respondent to tell her what was wrong with him but he told her nothing.

The decision of the Court.

There is clearly a case for me to pronounce a decree of nullity in respect of this marriage. I do so accordingly. I pronounce this marriage a nullity. I do admire the Petitioner for being patient and upright without any blemish for 11 years during which her marriage had not been consummated.

I notice that section15 of the Islanders Divorce Act (Caap.170) requires the hearing of a Petition for nullity of marriage to be done in camera and not in open Court. This requirement escaped my attention at the hearing but fortunately no one else was in Court other than the Petitioner, her Counsel, and Counsel for the Respondent and myself. It is also for this reason that I cited this case by the parties’ initials than their full names.

F.O. Kabui
Judge