Augustin Malaykhan Petitioner/Respondent v Prescilia Malaykhan Respondent/Petitioner [ECSC]

• Jurisdiction: St Lucia
• Judge: GEORGES, J [AG.]
• Judgment Date: 03 August 2010
• Judgment citation (vLex): [2010] ECSC J0803-1
• Court: High Court (Saint Lucia)
• Date: 03 August 2010
• Docket Number: SLUHMT 2009/0106

[2010] ECSC J0803-1

IN THE HIGH COURT OF JUSTICE

SLUHMT 2009/0106

Between:

Augustin Malaykhan

Petitioner/Respondent

and

Prescilia Malaykhan

Respondent/Petitioner

Appearances:

Mr. Evans Calderon for the Petitioner/Respondent

Mrs. Kim C. St. Rose for the Respondent/Petitioner

GEORGES, J [AG.]

1 These were hotly contested divorce proceedings in which the Petitioner/husband filed a petition on 23 ^rd June 2009, alleging that his marriage to the Respondent on 25 ^th January 1973, at the Roman Catholic Church at Marchand in Castries had broken down irretrievably on the ground that the Respondent had behaved in such a way that he found it intolerable to live with her.

2 The particulars of behaviour complained of by the Petitioner as set out at paragraph 10 of his petition are that:

• (a) The Respondent refused to do any house chores cooking washing (sic) for the Petitioner.

• (b) The Respondent refused to have marital intercourse with the Petitioner.

• (c) The Respondent had the Petitioner to be arrested and spent a night in jail because of a physical confrontation between them.

• (d) The Respondent requested twice that the Petitioner leaves (sic) their matrimonial home in the U.S. because her son who once broke his wrist in Saint Lucia was coming to the U.S.

• (e) The Respondent broke the Petitioner's ribs from a physical confrontation.

• (f) The Petitioner has lived apart from the Respondent since 2003 though living in the same house and finally lived apart in 2006.

3 Although the sole ground under the Divorce Act 1973 "the Act" on which a marriage may be dissolved is that the said marriage has broken down irretrievably the Court will not pronounce a decree of dissolution unless it is satisfied that the marriage has broken down irretrievably by reason of the facts set out in one or other of Sections 4(1)(a) —(d) of the Act.

4 The Petitioner's reason for seeking dissolution of his marriage is ostensibly the Respondent's behaviour which he finds intolerable to live with yet in framing the petition the wording does not conform with the standard wording of Section 4(1)(b) of the Act i.e. that the Respondent has behaved in such a way "that the Petitioner cannot reasonably be expected to live with her." What he in fact pleads instead is that "the Respondent has behaved in such a way that the Petitioner finds it intolerable to live with the Respondent".

5 There is in fact no such subsection in Section 4(1) of the Act so that the Petitioner's petition is technically flawed. And while the two things may in effect be tantamount to the same thing no such subsection exists under Section 4(1). Section 4(1)(a) of the Act provides that irretrievable breakdown of a marriage may be established where "the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent." No where in the Petitioner's particulars of behaviour at paragraph 10 of his petition is there any reference to adulterous behaviour on the part of the Respondent. The Court cannot therefore be expected to validate what is in effect an invalid petition. As I see it the requirements of the Act ought to be strictly complied with.

6 In the event that I am wrong I shall now turn to the particulars of the Respondent's behaviour as set out at paragraph 2. Regarding paragraph (a) in which the Petitioner alleges that the Respondent refused to do any house chores etc under cross examination he in effect "back-tracked" when pressed on the point and said that the Respondent in truth only did household chores when she felt like giving the impression that the allegation was exaggerated or perhaps contrived.

7 With regard to paragraph 10(b) the Petitioner explained that by his complaint that the Respondent refused to have marital intercourse with him he meant sexual intercourse. In his testimony the Petitioner disclosed that the Respondent and himself had not had sex since 2000. He also said that it was over five years and then he finally revealed that in 1999 they had gone to the USA where they were living as husband and wife but without sex! What is one really to believe?

8 In cross examination he denied attempting to persuade the Respondent to have sexual intercourse. However the Respondent testified that they continued to have sexual relations and that he was in fact trying to force her to do so in 2005 when she was ill (having suffered a back injury at work) which resulted in a fracas between them and the Police having to be called. All marital relations the Respondent deposed ceased in 2006, when she asked the Petitioner to leave on account of his behaviour. I believe the Respondent's version in preference to the Respondent's on that issue.

9 The evidence shows and the Court accepts that what in fact triggered off the fracas between the parties was the Petitioner's insistence in forcing the Respondent to have sex with him when she was in actual fact incapable of engaging in the act on account of a back injury. In the ensuing encounter the Petitioner sustained...