Marajh v Marajh
| Jurisdiction | Trinidad & Tobago |
| Judge | Warner, J. |
| Judgment Date | 15 June 1976 |
| Neutral Citation | TT 1976 HC 23 |
| Docket Number | No. 50 of 1973 |
| Court | High Court (Trinidad and Tobago) |
| Date | 15 June 1976 |
High Court
Warner, J.
No. 50 of 1973
Mr. B. Toolsie for the petitioner.
Mr. S. Richardson for the respondent.
Family law - Divorce — Petition for dissolution on ground of adultery — Court was satisfied that a case was made out and granted the dissolution.
This is a case in which a petition for dissolution of marriage was brought under the law existing before the coming into operation of the Matrimonial Proceedings and Property Act 1971. The ground of the petition is adultery the only ground on which the relief sought could be granted under the law existing at that date. In paragraph 9 of the Petition, the petitioner alleges that sometime in and around the month of September 1971 the respondent committed adultery with a person whose name and identity are unknown to the petitioner.
The evidence of the petitioner is that on 5th July 1964 he was married to the respondent and that the marriage was registered under the Hindu Marriage Ordinance of Trinidad and Tobago on 11th July, 1964 as shown on the marriage certificate which was admitted in evidence. He is a Trinidadian domiciled in this country. Following the marriage, he and the respondent resided at 25 Ocean Avenue, Don Miguel Road, San Juan but after some four months they moved to Ojoe Road, Sangre Grande where they resided at the petitioner's mother's home. According to the petitioner, the respondent left the house on 29th October, 1970 telling him that she wanted to have nothing to do with him.
In November 1970, shortly after the wife left the home, she instituted proceedings against him in the magistrate's court under the Maintenance and Separation Ordinance and on 20th January 1971, an order was made against him by a magistrate requiring him to pay maintenance for the respondent and the child Saisnarine. Subsequently he received a summons requiring him to appear before the magistrate on 27th January 1972, in relation to an application by the respondent, for an upward revision of the sum which he was to pay under the maintenance order. On one of the days to which the matter was adjourned he saw what he considered to be signs that the respondent was pregnant. He then brought proceedings for cancellation of the maintenance order. These proceedings are still pending. In June 1972 the respondent gave birth to a child. He did not have sexual relations with the respondent at any time after 29th October 1970.
The petitioner also said in his evidence that on the day following his wife's departure he had gone to the home of the respondent's parents. The respondent objected to his presence there, but her mother nevertheless entertained him by giving him a meal. Questions put to the petitioner in cross-examination showed that the respondent's case was that after she had left the house at Sangre Grande, he the petitioner frequently visited her and slept with her at her mother's home at Ocean Avenue. This the petitioner denied.
The evidence of the Respondent was that she had left the petitioner's house, because of his failure to provide any money for herself and the child Saisnarine. While she was at her mother's home, the petitioner would visit her, spending weekends with her. This happened, she said, even as the maintenance and connected magisterial proceedings were pending or in progress. From answers in cross-examination, however, it turned out that she was alleging that her quarrel with her husband was not merely a question of finance but related to his general treatment of her. She described him as “a cruel and bad man.” She also stated that she had left also because of the petitioner's mother who had advised him to beat her. She went on to refer to the petitioner as “a criminal,” adding that she had told him so at her mother's house.
She alleged that he had not been making the payments, under the maintenance order, and that she had found it necessary to apply far warrants for his arrest. In the course of her evidence under cross-examination, she specifically said that since she had left the petitioner in 1970, there was always a bad relationship between them. According to her, nevertheless, even when he brought proceedings for cancellation of the order, she was still having sexual relations with him.
For the respondent one Ramjit Lookram also gave evidence. Lookram testified inter alia “my niece-in-law is the respondent. I know her husband (Points to petitioner). He was married to my niece-in-law in 1964. I first went to Mrs. Shukla's in 1970. When I went there, she was living at her mother's residence. Her husband was there when I came, I am sure it was 1970. About two years he was permanently there. He is not still living there. When he comes there he stays in a room with Khameti.” According to the evidence, Mrs. Shukla is the mother of the respondent Khameti.
Later in cross-examination he said “from 1970 to 1973 the husband Krishendath Marajh and his wife were living permanently at Ocean Avenue. She had her own place about two years now.” Lookram's final answer in re-examination was “I do not remember dates at all.” I turn now to such rules of evidence as I must apply in finding facts in this case. Counsel for the respondent referred to several authorities, submitting that that there is a high standard of proof which must be attained. In his submission, the standard of proof required where adultery is alleged is not so high as that required in a criminal case, but rather above the proof on the balance of probabilities which will suffice in a civil case. He went further and pointed out that this was a case in which the presumption of legitimacy had to be dislodged by the petitioner, if he was to succeed and this required proof beyond reasonable doubt. Counsel for the petitioner sought to distinguish the cases referred to by counsel for the respondent and submitted that on the evidence, even if the same standard of proof as for a criminal case was required, the petitioner should succeed.
Understandably there vans no argument on the question of the manner in which a husband may prove non-access. The law today allows a husband to give direct evidence of non-access. The rule in Russell v. Russell [1924] AC 687 which forbade a husband to give direct evidence of non-access where the consequence could be bastardisation of a child born to his wife during the marriage has gone by the board. It was abolished in the United Kingdom by the Law Reform (Miscellaneous Provisions) Act 1949 and the Full Court of Trinidad and Tobago in Ramjattan v. Ramberan (Appeal No: 578/1959) unreported) held that the relevant provision of that Act applied here by reason of section 2 of the Evidence Ordinance. The clear provisions of section 9A (2) of the Evidence Ordinance as inserted by the Evidence (Amendment) Act 1973 have now, in any event, put to rest any controversy that there may have been as to whether the rule in Russell v. Russell is still applicable in Trinidad and Tobago.
On the general question of the standard of proof required in proving adultery for the purposes of a petition for dissolution of marriage, reference was made to the cases of Preston Jones v. Preston Jones [1965] 1 All E.R. 124 and Blyth v. Blyth [1966] 2 W.L.R. 634. On the same point, I now refer to a judgment in the High Court of Trinidad and Tobago: The case to which I refer is the case of Thomas v. Thomas and Blackman reported at Vol. 19 Part III. Judgments of the High Court...
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