Case No.:

(HC-CS-482-1958)

Court:

The High Court

Issue No.:

1960

Principles

·  Family law—Divorce—Cruelty as ground for divcrce in monogamous marriages—

·  Alimony, method of calculation of—Custody of children following divorce—

·  Welfare of children as paramount consideration

(i) A marriage between Sudanese-domiciled parties in excepted community or other monogamous form may be dissolved on the ground of cruelty by either party

(ii) Alimony is to be calculated in the light of the social status of the parties and of the respondent’s income. The fact that the wife-petitioner has means of her own should also be taken into consideration. As a rough guide an English practice of allowing one-third of the husband’s income, or the balance of this figure where the wife has means of her own, may sometimes be found to be convenient.

(iii) In deciding on the custody of children following a divorce the court should not follow hard-and-fast rules, e.g., to give it invariably to the innocent party or to the father, but should treat the welfare of the children as the first and paramount consideration.

Judgment

(HIGH COURT)

DANAY HADJIV ASSILIOU v. ELIAS B. HADJIVASSILIOU

(HC-CS-482-1958) 

Action

In this case the court followed the rule in Bamboulis v. Bamboulis (1954) Cases in the Court of Appeal, p. 76, AC-REV-58-1953 that divorce in excepted community marriages is governed by the general jaw of the Sudan nd not by the customs of the community in question. Also by that case, this general law follows English law rules. In contemporary English law not Only adultery—the only ground mentioned in Barn boulis—but also cruelty and desertion may be used. (Matrimonial Causes Act, 1950,S, I).

Advocates-: Abdel Rahman Yusef……… for petitioner

                     Ghariba (for Gumaa) ………..for respondent

June 29, I960. Michel Cotran Acting I.: —Petitioner and respondent, both of the Greek Orthodox Community and domiciled in Sudan, were married on May 1, 1949, m the Greek Orthodox Church at Khartoum. From the said marriage they had two children; a girl, Helene, born on January 31, 1950, and a boy, Basil, born on December 15, 1952. The petitioner has applied for dissolution of the marriage on the grounds of cruelty, for alimony and for the custody of the children. The two children have been in respondent’s custody since petitioner left the matrimonial home on August 10, 1958.

Cruelty has been abundantly proved to the satisfaction of the court. Indifference and quarrels betw the parties started from the early days after marriage, even during the honeymoon. Respondent is an inveterate gambler. At times he used to take petitioner home from the Club in the early hours of the morning, leave her alone and go back to the Club to continue ga Petitioner had to be given a dowry of £S.1,000 b her father, not in one payment but by instalments. Whenever payment was delayed respondent was complaining and nagging. Respondent was extremely jealous and prevented petitioner from visiting hei own people and friends and from going to the swimming pool. He was even unhappy when petitioner conversed with a man while they were in a group. His jealousy and suspicion reached such an extent that he made his daughter watch her mother whenever she spoke on the telephone and try to find out with whom she was speaking. Respondent’s insults to petitioner were con tinuous. He told his two children that their mother went out with boy friends, that she was a dirty woman and that” he would one day become a cabaret girl. On one occasion, while both petitioner and respondent were in a group at St. James Hotel, respondent openly said that if a new child was born to his wife, it would not be his child. On two occasions respon dent committed acts of violence against petitioner; once by slapping her on the face, âncj another time by pushing her strongly from the shoulder. On another occasion, during hot arguments, he pushed the glass door fiercely and wounded his hand. Quarrels were going on daily and petitioner appeared miserable and was always weeping (see evidence of PW. 4 Mba at page 90 of the record). Petitioner suffered so greatly from respondent’s conduct and attitude that her health became in danger. Dr. G. Meistris (PW. 1) told the court that in June 1958 petitioner was suffering from a nervous breakdown, which could be caused by matrimonial reasons. Another doctor (PW. 2) Abdel Monéim Wasfi testified that in July 1958 petitioner was suffering from an anxiety state caused by mental worry.

Cruelty having been established, petitioner was justified in leaving the matrimonial home, and it follows that she is entitled to a decree for the dissolution of the marriage. In fact, Advocate Gumaa for the respondent does not seriously contest the dissolution of marriage. In his final sub missions he states, “It would be inequitable to force two spouses to continue living together when they reach such state of hatred as that shown by the applicant towards her husband in this case . . .. Had it been the only relief she claims the matter would have been easy to decide.”

As to alimony, petitioner flas claimed £S.50 per month as from date of filing the petition, i.e., July 7,1958 Petitioner admits that since leaving the matrimonial home on August 10, 1958, she has been working in an advocate’s office and getting a salary of £S.35 per month. In my view this and the fact that she is living with her uncle do not deprive her from receiving alimony from respondent. As to the amount to be allotted, I have carefully considered the circumstances, the requirements of peti tioner, her social standing and status in life, and also took into account the income of respondent. He admits that he receives a salary of £S.100 per month. Having taken into consideration all these matters, I have decided to award £S.10 per month to petitioner with effect from August 10, 1958, i.e., the date she left the matrimonial home. It is noteworthy that the courts in England sometimes follow the practice of the Ecclesiastical Courts by allowing one-third of the husband’s income, or, where the wife has an income of her own, of making up the wife’s income to one-third of the joint incomes.

Now I come to the question of the custody of the children. It is an established principle of law that in deciding such a matter, the welfare of the child is the first and paramount consideration. ‘I have taken great pains to study this issue from every aspect, including a visit to the house of petitioner’s uncle where the children will live if petitioner is given their custody, also a visit to respondent’s house where the children are now living. I have also spoken to the children (now aged 11 and 9). As a result I have come to the conclusion that the welfare and interest of the children will definitely be more secured if they remain in the custody of respondent, and I decree accordingly. This, however, will be subject to certain conditions, which will be embodied in the decree.

Petitioner is awarded half costs, i.e., a total of £S.45, which includes advocate’s fees.

(Petition for divorce and alimony granted.

Custody of children refused)*

* Application for revision (AC/REV/386/ 1960) summarily dismissed.