Narinesingh v Narinesingh
| Jurisdiction | Trinidad & Tobago |
| Judge | Deyalsingh, J. |
| Judgment Date | 01 March 1979 |
| Neutral Citation | TT 1979 HC 30 |
| Docket Number | No. M360 of 1976 |
| Court | High Court (Trinidad and Tobago) |
| Date | 01 March 1979 |
High Court
Deyalsingh, J.
No. M360 of 1976
Mr. Basdeo Toolsie for petitioner.
Mr. Carlyle Bharath for respondent.
Family Law - Maintenance.
The petitioner/husband and the respondent/wife were married on the 9 th June, 1972. There is one child of the family now living, Leena born on the 5th May, 1973. By a Petition dated the 27th April, 1976, the petitioner prayed for a dissolution of the marriage and relied on the fact of desertion by the wife on the 11 th September, 1973 continuing down to the presentation of the Petition, under “sec. 4 (1) (c)” of the Matrimonial Proceedings and Property Acts 1971 (hereinafter called “the Act of 1971”). The wife did not file any Answer to the Petition. The matter came up for hearing on the uncontested Divorce List on the 5 th November, 1976, and a Decree Nisi was granted not to be made absolute before six weeks, the court holding “… that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition and that that is the only fact mentioned in “sec. 4 (1)” of the Matrimonial Proceedings and Property Act, 1971, on which the petitioner is entitled to rely in support of this Petition.”
By a Notice dated the 13 th June, 1978, the wife applied for “maintenance for herself and the child of the marriage, viz. Leena Narinesingh born on the 5 th May, 1973.” This is the application now before the court. The evidence comprise:
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(1) Affidavits of the husband sworn to on the 4 th October, 1977 and 13 th June, 1978;
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(2) Affidavit of the wife sworn to on the 13 th June, 1978;
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(3) Viva voce evidence of the husband on cross-examination on his affidavits.
I find the following facts: The husband and wife, after their marriage, first lived at the wife's parents' home. They then, for reasons which are not in evidences moved to the husband's parents home and later, again for reasons which are not in evidence, moved back to the wife's parents' home. The husband (it seems) at about this time left the wife's parents' home and the wife commenced proceedings in the Magistrate's Court for maintenance for herself and the child of the family. The husband said in his evidence:
“The Magistrate made me get a room. I got one at $20.00 per week. The room at her father was better than this.”
As a result of this “direction” by the magistrate the husband and wife set up for the first time a “matrimonial home” out of and away from their parents' homes. There is no evidence of how long they lived in this room by themselves…. but the wife left the husband on the 11 th September, 1973 (as found by the trial judge and which finding the wife cannot now dispute) and never returned to the husband. The marriage lasted about fifteen months. There were movements from the wife's parents' home to the husband's parents' home and back to the wife's parents' home and finally to a one-room dwelling at which point the marriage broke up. Magistrate Court's proceedings for maintenance for the wife and child of the family were instituted by the wife sometime during this fifteen-month period. The conclusion would be that the marriage was short, unsettled and probably unhappy. The husband was, in the said Magistrate Court's proceedings, ordered to pay the sum of $8.00 per week for the maintenance of the wife and 8.00 per week for the maintenance of the child. There is no doubt in my mind that such an order exists. A copy of this order has however, not been filed by the wife as required by Rule 55 of the Matrimonial Causes Rules, 1973.
It is in the context of the foregoing that the wife brings this application for maintenance for herself and the child. At the close of the viva-voce evidence of the husband on cross-examination, counsel for the husband submitted:–
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(1) That by virtue of Rule 52 of the Matrimonial Causes Rules, 1973, the wife was not entitled to Bring an application for ancillary relief (and maintenance is “ancillary relief”) without the leave of the court and that no such leave was obtained. Solicitor for the wife countered that no Answer had been filed by the wife and that no leave was therefore, necessary; further he submitted, if leave was necessary, the failure to obtain same was a mere irregularity and that the husband, by proceeding with the hearing without preliminary objection, had waived the irregularity.
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(2) That the wife was guilty of desertion and desertion disentitled a wife to maintenance. Further, if not a complete bar to maintenance, desertion constituted conduct of such gravity that the court, when applying the provisions of “sec. 27 (1)” of the Act of 1971 relating to conduct, should not award her any maintenance. Solicitor for the wife countered that the concept of matrimonial offences disentitling a wife to maintenance was a thing of the past as the Act of 1971 had abolished the concept of matrimonial offence; further, conduct was not an issue before the court as the husband had not raised it on his affidavits and the onus was on him to do so if he required the court to consider the wife's conduct under “sec. 27 (1)” of the Act of 1971.
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(3) That the court was entitled to and should make an order for the maintenance of the said child of the family in a reasonable sum, suggested at $15.00 per month.
A further issue not raised by either Solicitor for the wife or counsel for the husband is whether this court can, with a Magistrate's Court Order for maintenance extant, proceed to make another order for maintenance. I shall deal with this point in due course.
The issue of leave to bring this application:
The Matrimonial Causes Rules, 1973, provide:
“52. (1) Any application by a petitioner or by a respondent spouse who files an answer claiming relief, for –
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(b) a periodical payments order (which is what is involved in this case).
…………………………….
shall be made in the petition or answer, as the case may be.
(2) Notwithstanding anything in paragraph (1), an application for ancillary relief, which should have been made in the petition or answer, may be made subsequently —
(a) by leave of the court, either by Notice in Form 16 or at the trial;
(b) where the parties are agreed upon the terms of the proposed order, without leave
by Notice in Form 16.
(3) An application by a petitioner or respondent spouse for ancillary relief, not being an application which is required to be made in the petition or answer, shall be made by Notice in Form 16.”
The rule deals with applications for ancillary relief which are required to be made in the petition or answer (Sub-Rules (1) and (2)) and which are not so required to be made (Sub-Rule 3). If the application is required to be made in the petition or answer and it is not so made, then leave of the court must be obtained. No leave of course, is necessary for applications, which are not required to be made in the petition or answer. The question here is whether the instant application for ancillary relief is one, which is required to be made in the petition or answer. Sub-Rule 1 provides the answer: Only a respondent spouse who (i) files an answer (ii) claiming relief is required to make the application for ancillary relief in the answer. Filing an answer is not enough; it must be an answer claiming matrimonial relief (not ancillary relief). Rayden on Divorce (12 th Edition) Vol. 1 in dealing with Rule 68 of the English Matrimonial Causes Rules, 19'3 (which is the same as our rules) puts it this way at page 690:–
“…The claim for any financial relief by a respondent spouse who files an answer claiming matrimonial relief (i.e. a prayer for a decree) must be made in the answer. If it is not so made, either because at the time of the application no such answer has been filed, or because it is not intended to file such an answer, her application by notice in Form 11 may be filed. If an answer claiming matrimonial relief is filed and the claim is omitted therefrom, the leave of the Court is required to make the claim in Form 11 ….”
Form 11 corresponds to our Form 16 and it is not a Form limited to applications for leave only. By the rules it can be used when no leave is required: See Rule 52 (2) (b) and 3. The wife has not filed an answer in this case. The rules require only a respondent who has filed an answer …………to make any claim for ancillary relief in the answer. Rule 52(2)(a) therefore, does not apply in this case and I hold that no leave was required to bring the instant application.
The Conduct of the Parties:
Counsel for the husband submitted that the trial judge had found that the wife had deserted the husband and that she was therefore, not entitled to maintenance. He cited in support Bromleys Family Law (4th Edition) 403, Jones v. Newtown and Llanidloes Guardians [1920] L.J.K.B., 1161 and Price v. Price [1951] 2 All E.R. 580. In Jones' case (supra) a wife without just cause or excuse, left her husband and lived apart from him. She subsequently became a lunatic and chargeable to a union, and the guardians obtained an order…. for the maintenance of the wife in the asylum. Held: that the common law obligation of the husband to maintain his wife was only suspended so long as she wilfully and without just cause refused to return to him and that, as she had become a lunatic and was no longer capable of exercising any judgment, the husband's obligation to maintain her revived and the order for maintenance was properly made. The Earl of Reading C.J. said at the very beginning of his judgment —
“This case raises an important question as to the obligation of a husband to maintain his wife: after she has left him for a period of years, and when before returningto him she becomes a lunatic and chargeable to the union.”
In Price v. Price (supra) the wife deserted the husband in...
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