(COURT OF APPEAL) *

ANIS IBRAHIM vs. MARY GINDI

AC-Rivision-156-59

Revision

Principles

  Husband and wife—Cruelty, nature and proof of—Husband’s chastisement powers obsolete—Alimony, amount and duration—Household property, division of, under Coptic personal law

   A Coptic wife left her husband, taking her infant daughter, after ill-treatment by him amounting to legal cruelty. She claimed (1) that the cruelty complained of justified her leaving her husband, with the child; (2) alimony; (3) the division of certain household property in accordance with the personal law of the parties. He denied cruelty, claiming a husband’s traditional power of reasonable chastisement.
   The District Judge, High Court, Khartoum, held that (1) cruelty was sufficiently proved. A husband no longer has any legal power of chastisement; (2) permanent alimony to be awarded; (3) the property in question to be divided as claimed.
  The husband claimed revision on all three points and, as to (2), contended that even if alimony was rightly awarded it should be of lesser amount and also not permanent. His application for revision was dismissed by the High Court. He now applied to the Court of Appeal.
   Held: The decision of the trial judge affirmed on points (1) and (2). The amount of alimony awarded under (2) to be reduced and to be the subject of judicial reconsideration after one year.
Llewellyn v. Llewellyn (1955) 2 All E.R.110; Russell v. Russell (1897) A.C. 395; Horton v. Horton (1940) P. 187;Fromhold v. Fromhold (1952) 1 T.L.R. 1522; Miller v. Minister of Pensions (1947) 2 All E.R. 372, applied. Simpson v. Simpson (1951) P. 320; R. v. Jackson (1891) 1 Q.B. 671, distinguished.

Judgment

      The facts appear from the judgment of the Court of Appeal.

      Advocates: Mubarak Zarroug……………….. for applicant

                        Younis Nigm…………………….. for respondent

* Court: M. A. Abu Rannat C.J., Abdel Mageed Imam J.

                                                      
    23rd December Abdel Mageed Imam J. : —This is an application for revision against both an order of the Judge of the High Court, Khartoum, dated 8th July 1959, dismissing an application for revision made by applicant (and plaintiff) and a decree of the District Judge (High Court), Khartoum, dated 5 May 1959 by which he, applicant (and plaintiff), was to pay a sum of £S.27.500m/ms, being monthly alimony as from 15th January 1959 for respondent (and defendant) and her infant child, until further order, and by which certain furniture and other household property were divided among the contesting parties.

   The facts of this case are in brief:—Anis Ibrahim, applicant (and plaintiff), and Mary Gindi, respondent (and defendant), celebrated their marriage in the Coptic Orthodox Church, Khartoum, on 2nd October 1955. A daughter was born to them on 8th October 1956. Disputes arose a few months after the marriage, characterizing and tainting their short-lived cohabitation. They moved into two houses, in Khartoum No.3 and in the Coptic quarter in Khartoum, and paid a visit to Cairo shortly before their marriage finally broke down on that fateful day of 15 January 1958, when Mary, respondent (and defendant), in the absence of her husband, moved away for good, and moved with her some of the household property, and remained, till this day, in her brother’s house.

   It is the contention on the part of respondent (and defendant) that she quitted the matrimonial house because of the cruelty of the applicant (and plaintiff), of which she gave particulars of beating and kicking on so many occasions resulting in minor bodily injuries, and that she had no alternative but to quit when she did, in view of her failure in her ceaseless complaints and genuine efforts to save the marriage, make peace, live harmoniously, and let bygones be bygones. She, therefore, further contends that she had a lawful excuse for leaving the home and deserting applicant (and plaintiff), who, because of his cruel conduct, is to be held to have committed constructive desertion, thus entitling her and her infant child (then eighteen months of age) to alimony, which she assessed at £S.40 monthly and for which she counterclaimed. As for the property, allegedly removed by her, she admitted removing the same and contended that she, according to their Coptic Orthodox Personal Law, was entitled to do so, being part of her trousseau. On the same grounds she counterclaimed in respect of some other property still in possession of applicant (and plaintiff).

    It should have been noted that applicant (and plaintiff) based his claim to recovery of the property on the fact that he was owner thereof, that the Coptic law does not apply, nor does C.J.O., s.5 (a). As for the allegation of cruelty, he denied that the wife was compelled to leave by reason of harsh treatment on his part, and that she did so wrongfully and without just cause or excuse.

      As we see it, respondent (and defendant) should succeed on the issue of cruelty. The learned advocate for applicant (and plaintiff) has supplied us with a definition in the recent case of Llewellyn v. Llewellyn (1955) 2 All E.R. 110 (C.A.) which reads:

   “An act which caused injury to health or apprehension of injury to health”.

He contended that this should not apply to a slap, a normal smacking or hot words from which, he submitted categorically, even royal spouses (forgetting, it seems, Philip of Spain or Ivan the Terrible and not mentioning the notorious Red Sultan of Turkey) are not immune. He asserts that such acts by the husband are lawful because of the right of chastisement inherent in all husbands under all laws. He further contended that even such acts as would amount to cruelty as alleged were not proved, that none of the witnesses had attended any beating to be able to describe it, apart from the fact that it was justified in many cases where reference was made to such incidents as when the wife wore an unbecoming, immodest dress. He admitted, however, a single isolated beating, submitting that it occurred a year before the case was brought and contended that the wife must not be allowed to use that as a weapon of terror overhanging and ever threatening the head of the husband with the imminent menace of judicial action, calling in aid the authority of Llewellyn v. Llewellyn above mentioned.

    The definition contained in Llewellyn v. Llewellyn is a concise and good one. It is, however, a repetition of the substance of former definitions contained in older precedents. In Russell v. Russell (1897) A.C. 395 cruelty was defined as:

    “Legal cruelty is conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give reasonable apprehension of such danger”.

     This was further modified and explained in Horton v. Horton (1940) P. 187, by the following statement of law:

    “Mere conduct which causes injury to health is not enough, but unjustifiable acts causing pain and misery and causing injury to health may amount to legal cruelty.”

See also Phillips’ Divorce, 4th edition, p. 30, and Rayden on Divorce, 6th edition p.      98.

   What, then, are the acts which constitute legal cruelty? Phillips says: — “certain acts cause injury to anyone by their very nature . . .” (p. 30).

He continues on the same page: — “The clearest acts of cruelty arise where the respondent hits the

petitioner with his clenched fist, or kicks her with his booted foot, breaking her nose, knocking out her teeth, blackening her eye or knocking her unconscious. Again a serious attempt to strangle the

 petitioner, or serious threats to injure the petitioner with a weapon such as a knife, poker or broken bottle will amount to cruelty.”

But does a single act amount to cruelty? Phillips has this to say at the same page: — “It is possible to found a petition on a single act of cruelty, but if only one act is relied on it must be of a serious nature. A clear case of this kind would arise if the respondent injured the petitioner to such an extent with a knife or other weapon, that his conduct amounted to attempted murder or wounding, causing grievous bodily harm. It is not necessary for the petitioner to establish that the act is likely to be repeated. There is no authority for the statement that the Court will only intervene to protect a party from what it is anticipated may happen.”

   What then is the position in the case of a single act which does not amount to cruelty? Phillips adds in the same page : — “An act which standing by itself would not amount to cruelty when followed by similar acts over a period of time may have the effect of undermining health to such an extent as to amount to legal cruelty.”

   He gives examples of a jealous wife, perpetually nagging her husband, preventing his sleep at night and committing slight physical violence against him. It should be noted that when such minor acts are pleaded, it is necessary that they should cover a fairly considerable period of time, for otherwise they might only be the result of a temporary disagreement due to the strained relations of the parties at the time. Rayden states (at p. 100):—

     “The existence of cruelty depends not on the magnitude, but rather on the consequence of the offence, actual or apprehended”.

    Having arrayed, in some detail, the law as to cruelty, we now pass to consider questions of evidence: whether the evidence of the petitioner, i.e., the wife, and her complaints are admissible, and if so, the weight of such evidence, whether it needs corroboration and the standard of proof required.

   “The fact that a wife has made complaints about her husband is admissible in evidence, but not the particulars of the complaint Complaints and fact must therefore be distinguished. See Fromhold

v. Fromhold (1952) 1 T.L.R. 1522, C.A.:

   “Corroboration of the petitioner’s evidence is probably not required as an absolute rule of law; but the Court in practice requires it, unless the absence of corroborating witness can be satisfactorily accounted for. Evidence of a witness to the effect that he or she saw the injuries, marks or bruises within a day or two of such injuries having been inflicted is admissible, though any statement made to the witness in the absence of the party implicated is not.” (Rayden, p. 109.)

                                                                                                              S.L.J.R.—7

      As to the standard of proof required, it is Rayden’s opinion that cruelty must be proved beyond reasonable doubt (p. 111), i.e., that it must be proved with the same degree of strictness as a crime is proved in Criminal Courts. Though this seems to be the law, it also seems that it is not a final utterance. For in Miller v. Minister of Pensions (1947) 2 All E.R. 372, Bucknill L.J., with whom Somervell L.J. concurred, expressly refrained from deciding the standard of proof required and contended himself that the word “strict” is sufficiently apt to describe the measure and the standard of proof required, while Denning L.J. held that the offence must be proved with no more strictness than is required in a civil case (i.e., preponderance of probabilities). It should be noted, however, that the stricter measure of proof was required in cases where cruelty was made a ground for divorce, not judicial separation or constructive desertion where cruelty is only relevant because a claim for alimony is in issue as in this case before us. For such cases, see Bater v. Bater (1951) P. 35; Allen v. Allen (1951) unreported, C.A.; Simpson v. Simpson (1951) P. 320, and Lyons v. Lyons(1950) N.1. 181.

   Considering the facts of the case now, it appears from respondent’s own story that the marriage, shortly after it was celebrated, was for her, except perhaps for some relatively short, blissful intervals, an unbroken chain of quarrels, nagging, cursing and beatings. The beatings, as can be seen from her very lengthy statement, took the forms of striking with the hand, with the foot, with a stick, throwing her to the ground, beating her all over, causing her pain and suffering, scratches, bruises, swelling and bleeding to such an extent that on one such occasion she shot out of the house screaming and wailing. The following statement (at p. 43) sums up respondent’s story: —

   “Commencing seven days after our marriage until I left the house, plaintiff used to beat me three or four times a week. On the night before I left the house, i.e., 14th January 1958, plaintiff beat me. He also did so two days before. The reasons were trifling, mostly because I contacted my family. Sometimes he came at night and straightaway struck me, saying ‘get up and see to the girl.”

    This story is corroborated, comprehensively, by DW. 2 Fifi, respondent’s sister, who, however, may have caused the total failure of the marriage, and who may be harbouring a grudge against applicant because of his disfavour, yet is supported in several respects by the independent evidence of DW. 3 Shukralla Mikhail, DW. 4 Fouad, respondent’s brother, and especially that of DW.5 FatherDimadios, before whom applicant swore on the Bible to treat his wife nicely, which makes it inconceivable, were the conduct complained of not of a serious nature.

     The Court of first instance accepted the above evidence, a thing which it was entitled to do, to rise to the higher standard of proof beyond reason able doubt, though we think that in this particular case, as has been mentioned above in our exposition of the law, a less strict standard might have been enough.

  Now do these acts as proved constitute legal cruelty? We are satisfied that each and every single act of serious beating with the hand and a stick, kicking with the foot, causing injury and pain, or even the mere threat of violence as comes in Fifi’s evidence of applicant threatening his wife with a knife, amount to acts of cruelty. Even if all these acts were to be treated as minor acts, their aggregate, in our view, would amount to cruelty, because of their well-founded anticipated results. We have quoted above to this effect:

    “An act which standing by itself would not amount to cruelty when followed by similar acts for a period of time, may have the effect of undermining health to such an extent as to amount to legal cruelty.” See Horton v. Horton (1940) 3 All E.R. 380.

    It is submitted on the part of the applicant (and plaintiff) that respondent (and defendant) should not be allowed perpetually to menace her husband with the threat of judicial proceedings merely because of a single act of cruelty which occurred a long time before such proceedings are taken, or in other words the express or implied condoning of such act is a bar to any subsequent action. We agree that this is a correct understanding of the law, but only in cases where such act is not followed by similar acts and thereby revived.

   “The reinstatement and forgiveness of a guilty spouse is subject to a condition implied by law that he or she shall commit no further matrimonial offence. If, therefore, a matrimonial offence is committed, the condonation is cancelled and the old cause of complaint is revived. Such an offence need not be ejusdem generis as the original offence; nor need the subsequent offence be one entitling the wronged spouse to relief. Although condonation is conditional forgiveness, liable to revival, the further the past offences recede, the more difficult it is to revive them; the time may arrive when the proper inference is that forgiveness is no longed conditional, but has become absolute.” (Rayden, p. 181.)

He adds (at p. 182):—

 “Acts which would not necessarily be sufficient to obtain relief may

yet be sufficient to revive a condoned offence; thus gross familiarities will revive condoned adultery, and acts of great unkindness will revive condoned cruelty, provided that they would, if persisted in, make married life together impossible, but not a mere isolated act of matrimonial misdemeanour which falls short of this.”

      Applicant’s (and plaintiff’s) acts of cruelty and unkindness persisted with respondent (and defendant) till the very eve of her departure.

   One more point we must not leave undealt with before declaring our opinion. It is contended on behalf of applicant (and plaintiff) that the acts complained of were nothing more than the lawful exercise by the husband of his right of chastisement over his spouse. Admitting that such law still exists, the right to exercise it in this particular case has been exceeded because of the severity and seriousness of the acts inflicted. We, however, affirm—sorrowfully! —that this is no longer the law; for alas! This archaic law, which pertains to the middle and darker ages and which is a rudiment of the masculine mastery over the fairer sex, has vanished.

    In Hamawi, one finds the following statement of the law (p. 124): —

      “Legal cruelty is sufficient to break up the matrimonial home.

The spouses are under no legal obligation to endure from each other any form of physical restraint to which they do not freely consent

….the rights of the spouses over each other’s body have altered with the change of the conception of woman’s status in society. In earlier days it was clearly recognized at law that, for instance, a man had the right of reasonable chastisement over his wife.

    The position of the law today is rendered somewhat difficult by the fact that there have been very few recent cases involving physical rights over the spouses, except in the context of divorce and judicial separation.

    It is clear that the old cases which ‘are tainted with the notion of absolute dominion of the husband over the wife’ are not law. It has been suggested above that a husband and wife are today equal before the law and that any case suggesting the contrary, even if not specifically overruled, would not be followed.”

And (at p. 126) he adds: —

   “Neither party has a right of chastisement over the other, and physical chastisement would amount to assault. Nor as a general rule has either the husband or the wife the right to restrain the acts of each other, other than the general right which every subject has to restrain a felon or prevent the commission of a felony, etc. . . .”

    The only qualification, it seems, to this general rule is the statement of Lord Haisbury in R. v. Jackson (1891) 1 Q.B. 671, to the effect that a husband might have a right of restraint over his wife in order to prevent “acts of proximate approach to misconduct “. No such act was averred on behalf of applicant (and plaintiff) other than the trivial incident of her immodest dress which it was not contended would have amounted even to indecency.

 For the above reasons, we think that respondent (and defendant) was justified in leaving the home, and that she, therefore, is entitled to alimony for herself and her infant daughter. We, however, think that the amount awarded in the Court of first instance is excessive. In fixing alimony regard must be made both to needs of the petitioner and means of the respondent and their social standing in life. The Court has a discretion to fix the amount according to circumstances—(see Rayden, p. 551). The Court has alsoa discretion as to what arrears may be enforced, and according to law alimony commences from the date of the final decree.(Rayden, p. 550.)

    This applies to permanent alimony awarded in cases of divorce and judicial separation and which extends only for the joint lives of the spouses. This not being the case here, and giving all the circumstances our due consideration, including the forceful argument submitted on behalf of applicant (and plaintiff) against the quantum awarded and its retrospectivity and permanency, it is our considered opinion that the amount decreed should be substantially reduced, taking effect from the date of the decree in the Court of first instance, and temporary, running only for a fixed period and subject to reconsideration by the aforesaid Court.

    As to the property in dispute, although the distribution made by the District Judge (High Court) on the first glance appears to be arbitrary, on closer examination, it is, in the main, an application of justice, equity and good conscience, in adopting the customs peculiar to the parties concerned as embodied in Article 85 of the Coptic Personal Law, for the property contained in p. 1 is either: —

(a) Property proved to have been bought by respondent (and defendant).

(b) The sewing machine, even if bought by applicant (and plaintiff), should by custom      go to the wife.

(c) Utensils and other property which is usually used by women and in respect of which no conclusive evidence was adduced to prove that it was applicant’s (and plaintiff’s) property.

(d) Gifts to the infant child.

   For the reasons above explained the decree of the District Judge (High Court), Khartoum, dated 5th May 1959, is hereby altered to read as follows:

1. Applicant (and plaintiff) do pay a monthly alimony of £S.17 for her and her infant daughter as from 5 May 1959.

2. The above order would be valid for a period of one year, when it would become subject to reconsideration.

3. The order in respect of the division of the household property is confirmed.

                                                                                                               S.L.J.R.-7*

 
4. Respondent (and defendant) to be awarded costs minus costs on arrears cancelled.

                M. A. Abu Rannat C.J. —I concur.

                                                                                               (Order accordingly)

                   SU