CIV/T/46/06
IN THE HIGH COURT OF LESOTHO
In The matter between:-
MANYATHELE KHELELI PLAINTIFF
AND
MALINTLE KHELELI DEFENDANT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 10th March 2009
In this defended action for divorce, plaintiff seeks this Court to terminate the marriage between him and the defendant. It is the plaintiff’s case that defendant is disrespectful towards him and his mother, challenges his marital power, is uncooperative and does not consult him, has a tendency of using foul and abusive language towards him, despises property bought by him, engages him in endless quarrels and brawls and no longer affords him conjugal rights.
Further that he ended up leaving the matrimonial home to a rented flat and defendant has frustrated efforts of reconciliation instituted by both parties’ parents. It is also plaintiff’s assertion that there are no prospects of reconciliation between the two parties as the marriage has broken down beyond redemption.
Defendant denies all these allegations and contends that she has always been cooperative and obedient towards plaintiff. She adds that instead, it is plaintiff who would sleep out of the matrimonial home but would always get her forgiveness whenever he apologized. Further that plaintiff is fabricating non-existent reasons to found a case for divorce.
It is her further contention that the last time the parties’ elders intervened, plaintiff started mending his ways. That in addition, it is plaintiff who left the matrimonial home and she is prepared to live with him as husband and wife. She also avers that there are high prospects of reconciliation between the two parties and that plaintiff is simply caught up in the ‘whirlwind of worldly pleasures’.
The evidence that was adduced before the Court in support of each party’s case was basically that of the parties alone with none of them calling other witnesses. In other words, in so far as the question of proof goes, it is plaintiff’s word against that of defendant.
It is against this background that the question for the determination of this Court is whether plaintiff has made out a case for divorce. In terms of the law of the kingdom, Courts can grant divorce on the basis of two grounds, i.e. adultery or desertion either malicious or constructive.
In the present case, plaintiff is not accusing defendant of adultery or malicious desertion. Rather it is his case that by her actions defendant drove him out of the matrimonial home. In other words, he is alleging that she is guilty of constructive desertion.
The actions that plaintiff accused defendant of through the evidence he placed before this Court do not in my view amount to constructive desertion. Instead, it is my opinion that the things he complained about are the usual problems that every normal family experiences time and again. Not to mention that defendant disputed all his allegations and went on to make a commitment before this Court that she is prepared to do whatever it takes to make plaintiff happy so that he can go back to their matrimonial home and they can resume to live as husband and wife and raise their minor children together.
To fortify plaintiff’s case, Mr. Tsenoli referred this Court to the case of Macaefa Billy v ‘Majoane Billy CIV/T/218/2005, wherein it granted divorce to the plaintiff despite the fact that irretrievable breakdown of a marriage is not one of the grounds for divorce in our jurisprudence. Indeed after careful consideration of the merits of the Billy Case (Supra), I granted plaintiff therein divorce in spite of this factor.
My reasons therein were inter alia, that not only had plaintiff left the matrimonial home and been living with his mistress for a period of almost six years in a house which he had built for himself and his new family, but two children were born of that union. In addition, it was common cause that even prior to the six years of the actual separation, the couple had been sleeping in separate bedrooms for a period of eight years so that the total number of years of their estrangement was in the range of fourteen (14) years. Whilst defendant was also contesting divorce mainly on religious grounds, I found that the marriage in question had long died.
Coming back to the present case, the plaintiff has also left the matrimonial home and has been living apart from defendant for about four (4) years. This is not disputed. But other than this one reason, it is my opinion that the facts in this case can be distinguished from those in the Billy Case (Supra). My reasons are that therein, prior to their estrangement violence including the threat of use of a firearm had occurred resulting in police intervention, the parties had not afforded each other conjugal rights for nearly fourteen years, plaintiff had been living with another woman for six years and two children were born of this union. None of this is the case in casu.
Further, I do not hold the view that the differences that were cited before this Court in the present case are as serious and/or irreconcilable as was the case in the Billy Case (Supra). As I have already stated, it is my opinion that they are normal problems that exist in any normal marriage. I therefore do not
accept that the marriage herein has irretrievably broken down. The concept of irretrievable breakdown of a marriage was considered in the case of Swartz v Swartz 1984 (4) SA 467 (A) on which I mainly relied for my decision in the Billy Case (Supra). Therein Corbett JA stated that:-
“The question is whether the marriage between appellant and respondent has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. Looking at the facts objectively I am of the opinion that the question must be answered in the affirmative. At the time of the trial the parties had been living apart for three years and the relationship between the appellant and Miss Lintvelt had been in existence for five-and-a-half year….”
While I am cognizant that plaintiff in this case is adamant that he does not love defendant any longer, looking at the facts, I do not believe their marriage has reached such a state of disintegration that it can be said with certainty that there are no reasonable prospects of restoration of a normal marriage relationship between them. This is so despite the fact that plaintiff has been living out of the matrimonial home for about four (4) years.
For the foregoing reasons, it is my finding that plaintiff has not successfully made out a case for divorce and I accordingly dismiss his claim with costs.
N. MAJARA
JUDGE
For plaintiff : Mr. P. Tsenoli
For defendant : Mr. Molati
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