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Trinidad and Tobago High Court |
] [Hide Context] IN THE HIGH COURT OF JUSTICE
H.C.A. No.898 of 1992
also called
HARDAYE DURGHA Respondent
Appearances:
Ms. G. Scott for the Respondent
By Summons filed on 2 nd June, 1995 the Respondent seeks the following reliefs:
(a) A transfer into her sole name the property formerly occupied as the matrimonial home situate at Bertie Street, Eight Street, Five Rivers,
houses erected thereon assessed in the Warden’s Office as No.ZZN 122;
(b) A lumpsum payment for herself and in lieu of periodical payments for the minor child of the family, namely Alisha, born on 25 th October, 1980;
(c) An order that the Petitioner pay to her the costs hereof;
In support of the said application the Respondent filed the following Affidavits:
(a) affidavit filed on 15 th March, 1996;
(b) affidavit filed on 29 th May, 1998;
(c) affidavit filed on 6 th July, 1999.
Leave was sought and obtained by the Respondent to use the affidavits of Sherry-Ann Maharaj filed on 1 st June, 1999 and that of Alisha Durgha filed on 6 th July, 1999. In opposition to the said application the Petitioner filed the following two affidavits:
(a) affidavit filed on 26 th September, 1996;
(b) affidavit filed on 10 th May, 1999.
Before I proceed any further I would like to comment on a practice which seems to be gaining some measure of popularity within recent times and that practice has to do with the filing of further and better particulars of affidavit evidence. In the instant case both the Petitioner and the Respondent made a request of each other for further and better particulars of affidavits filed with respect to the application before the Court. The requisite Notices of the particulars were filed as would normally be the case when such a request is made of pleadings and apparently no regard is given to the fact that the requests for particulars are made with respect to the sworn testimony of the respective deponents. What is even more surprising is that both Counsel in their written arguments and submissions have referred to the particulars as filed (that is on 13 th March, 1997 and 4 th November, 1997) as part of the evidence which the Court has to consider in determining the case. The practice appears to be procedurally incorrect. Such a Notice as filed cannot be considered to be part of the evidence before the Court. In fact, I question the authority in Counsel to request further and better particulars of affidavit evidence. But even if such a request is made and entertained, the response ought to be by way of a supplemental affidavit so that the Court can properly consider such particulars as part of the evidence in the case.
This Court began hearing arguments with respect to the Respondent’s application on 23 rd July, 1999 at which time Counsel for the Petitioner challenged the jurisdiction of this Court to hear the said application. The basis of Counsel’s submission then was that the Respondent was in contempt of an order of the Court and therefore should not be heard until she has purged her contempt. Arguments and submissions were made by Counsel on behalf of both parties and on the 1 st day of November, 1999 the Court by a written Ruling dismissed the preliminary objection raised by Counsel for the Petitioner. Thereafter the Court proceeded to hear the application of the Respondent for property settlement and lumpsum payment for herself in lieu of periodical payment for the minor child of the family, namely, Alisha Durgha, born on 25 th October, 1988. The undisputed evidence before the Court is that the parties were married on 5 th day of March, 1967 and they cohabited at No. 12 Bertie Road, Eight Street, Five Rivers, Arouca. The Respondent was seventeen years old at the date of marriage while the Petitioner was twenty-seven years old. There are four children of the family viz., Dexter born on the 21 st April, 1966; Sherry-Ann born on 21 st December, 1967; Davanna born on 3 rd August, 1975 and Alisha born on 25 th October, 1980. Dexter was born prior to the marriage between the Petitioner and the Respondent and rather surprisingly little or nothing is said about Dexter in the evidence put before the Court by the parties.
With the consent of the Petitioner the Respondent left Trinidad and Tobago in 1988 for Canada and then finally settled in the USA where she has continued to reside ever since. In 1992 the Respondent made arrangements for the two younger children Davanna and Alisha to join her in the USA. Davanna has since entered medical school while Alisha has attended college. There is no up to date information on their current academic or professional status but the Respondent has testified that she has since 1992 single handedly financed their education. The Petitioner has testified that he has offered to pay the Respondent the sum of $175.00 per month for the maintenance of each child of the family but that she has refused to accept the offer. See paragraph seven of the Petitioner’s affidavit of the 12 th June, 1993. The Decree Nisi dissolving the marriage was made on 7 th May, 1993.
The Respondent has also testified that at the time of the marriage the parties owned no property. She says that the Petitioner was first employed as a conductor and then at various other places until he finally secured a job as a Wardsman at the Port of Spain General Hospital. She testified that his salary at the time of the marriage was inadequate but with her frugal handling of the family income and with help from her relatives they were able to make ends meet.
The Respondent further testified that during the marriage she stayed at home and cared for the family. While at home she planted short-term crops, some of which she sold and the rest she used to provide food for the family. She said that it was through their joint efforts that they were able to acquire two lots of land from Five Rivers Estate at Bertie Street, Eight Street, Arouca. Two dwelling houses were constructed thereon. The family occupied the main dwelling house and the other was rented to tenants.
The Petitioner on the other hand categorically denied that the two lots of land were acquired during the marriage. He testified that he held the tenancy in the two parcels of land and had built the house in which the family resided prior to his marriage to the Respondent. In fact he exhibited a copy of the official receipt dated 14 th March, 1960 for land rent and for house tax with respect to the said property. He admitted however, that the second house was constructed during the marriage but with funds which he had secured from the sale of a parcel of land which he had acquired from his father by a Deed of gift. He said that he received no assistance from the Respondent in the construction of the family house and he also denied that the Respondent ever planted and sold crops to supplement the family income as alleged. The Petitioner contends that when the Respondent went to the USA in 1988 and refused to return she in fact abandoned the family as a result of which the Petitioner and children suffered tremendously.
The Respondent denied that she abandoned the family. In fact her evidence is that she was constrained to leave the matrimonial home in an attempt to escape the violent treatment meted out to her and the children of the family by the Respondent and also that it was her intention to seek a better life for herself and the children away from the Petitioner. She contends that the Petitioner ill-treated the family throughout the marriage and that contention was supported by the testimony of the two daughters Sherry-Ann and Alisha. The Petitioner has vehemently denied that he has ever been violent to the Respondent nor has he ill-treated any of his children. His evidence is that he has worked hard and supported his family throughout the marriage.
I have carefully assessed the evidence of the Petitioner and the Respondent deposed in their several affidavits filed in these proceedings. Although leave was granted by Madam Justice Warner on 26 th September, 1996 for both parties to be cross-examined on their affidavits, the Respondent having taken up permanent residence in the USA never submitted herself for cross-examination and in the events that followed Counsel for the Respondent did not exercise her right to cross-examine the Petitioner. Consequently, the Court is left to do the best it can in resolving the conflicts that have arisen on the evidence. Of course the failure of the Respondent to offer herself for cross-examination does not mean that her testimony will be rejected by this Court. That will not be fair as the Court has taken into consideration the circumstances which has led to her predicament. Nevertheless, at the end of the day it is for the Court to decide what weight, if any, ought to be attached to the Respondent's testimony.
The Respondent has been employed as a house keeper in the USA since 1988 earning a weekly income of approximately US $250.00, that is, approximately US $1,000.00 monthly which is equivalent to approximately TT $6,000.00 a month. While working in the USA she sent regular sums of money first to the Petitioner to assist in the care and maintenance of the youngest child Alisha. At the age of sixteen (16) Davanna had left the family’s home and had rented an apartment at No.31 Evans Street, Curepe (see the Probation Officer’s Report dated 25 th November, 1991 exhibited to the Petitioner’s affidavit filed on 24 th June, 1998). Davanna’s monthly rental of $300.00 was paid for by the Respondent. Incidentally, Davanna was preparing for his CXC examination at the time he left the family’s home in 1991. Although the Petitioner denied that he ever received money from the Respondent while she was employed in the USA the Respondent was able to produce documentary evidence in the nature of money orders confirming her testimony that she had sent money to the Petitioner to assist with the household expenses. She also testified that she sent clothes and other household items for the Petitioner and the children of the family. She further testified that following several complaints from the two younger children Davanna and Alisha she eventually arranged for them to join her in the USA in 1992. The Respondent’s evidenced confirm that the two children have adjusted quite well to their new environment and have been doing quite well academically.
On the totality of the evidence Counsel for the Respondent has submitted that the Respondent has made a significant contribution to the welfare of the family. She argues that even after the Respondent had left the jurisdiction in search of a better life abroad she continued to support the family by sending money periodically to the Petitioner and thereafter to Sherry-Ann to assist in looking after the two (2) younger children of the family. In fact Counsel submitted that from the year 1992 the Respondent single handedly maintained and educated the two younger children in the USA without any assistance whatsoever from the Petitioner.
Having regard to the evidence before the Court, Counsel for the Respondent submits that the former matrimonial home ought to be transferred into the joint names of the Respondent and the Petitioner and that the Petitioner should be made to pay to the Respondent a lumpsum amounting to one-third of the gratuity and other benefits payable to the Petitioner from his employment. The Respondent will also like the Court to order that the Petitioner pays the costs of the application. In support of her submissions Counsel has cited a number of authorities including the following cases:-
(1) Wachtel –vs- Wachtel [
1973] EWCA Civ 10; (1973) 1 AER 829 at page 838;
(2) Smith –vs- Smith (1970) 1 AER 244;
(3) Mortimer –vs- De Mortier Griffin (1986) 2 FLR 315;
(4) Walsh –vs- Cororan (1983) 4 FLR 59 at page 64.
Relying upon the case of Wachtel –vs- Wachtel Counsel is of the view that the violent conduct of the Petitioner towards the Respondent was of such a nature that it ought to influence, by way of increase, any lumpsum award the Court is inclined to make in favour of the Respondent.
On the other hand Counsel for the Petitioner has sought to make a comparison between the earnings of the Petitioner and that of the Respondent and has argued that in view of the Petitioner’s health problems, his age and his small monthly earnings the Court should be very reluctant to award a lumpsum payment to the Respondent in lieu of periodical payments for Alisha as a child of the family. Counsel has submitted that the Petitioner is over sixty years of age, nearing retirement age and is living alone and having regard to his relatively small income his gratuity payment will, no doubt be comparatively small. She forcefully argues that any deduction from the Petitioner’s retirement benefit would create an unnecessary and undue hardship on the Petitioner while at the same time improving the economic circumstance of the Respondent to a level far beyond that of the Petitioner.
Counsel has submitted that the child Alisha is now over the age of eighteen and that while it is true that the Respondent in her affidavit (filed on 24 th June, 1988) has testified that Alisha attends college in the USA no details have been provided as to Alisha’s educational status upon which the Court could make a proper assessment as to her needs.
In addition Counsel has also contended that there is no basis upon which the Court should transfer the entire matrimonial property to the Respondent as she has requested in her summons filed on 2 nd June, 1995. Counsel submits that the Respondent summons filed on 2 nd June, 1995 ought to be dismissed with cost and in support of her submissions relies upon the following authorities:
(1) Wachtel –vs- Wachtel [1973] EWCA Civ 10; (1973) FAM. 72;
(2) Millward –vs- Millward (1971) 1 WLR 1432;
(3) JPC –vs- JAF (1955) P 215;
(4) W –vs- W (No. 3)(1962) P 124;
(5) Donaldson –vs- Donaldson (1958) 2 AER 660;
(6) P –vs- P (1978) 3 AER 70;
(7) Martin –vs- Martin (1976) FAM. 335
As I have indicated earlier neither the Petitioner nor the Respondent has been subjected to cross-examined on their respective affidavits filed in these proceedings. I have, nevertheless, carefully assessed the evidence which both parties have placed before this Court. In reviewing the evidenced I feel very strongly that the testimony of the Petitioner and the Respondent have at times been exaggerated and at other times I have had cause to question the veracity of the evidence. For example, the Respondent’s evidence that it was through their joint efforts that they were able to acquire two lots of land from Five Rivers Estate situate at Bertie Street, Eight Street, Five Rivers, Arouca has been refuted by the Petitioner. In order to contradict the Respondent’s evidence on the acquisition of the said property the Petitioner adduced documentary evidence in the nature of a receipt dated the 14 th March, 1960 from the Five Rivers Estate. (See Exhibit “ BD1” exhibited to the affidavit of the Petitioner filed on 26 th September, 1996) which shows quite clearly the payment of land rent and house tax made by the Petitioner to the Five Rivers Estate and is consistent with the Petitioner’s testimony that he had occupied the land and had built a house (now referred to as the matrimonial home) prior to his marriage to the Respondent in 1967. What is clear from the evidence of the Petitioner is that he, was a tenant of the two lots of land paying an annual rent to the Five Rivers Estate prior to the marriage. See paragraph 3 of his affidavit filed on 26 th September, 1996. What is certainly not clear from the evidence is whether the beneficial interest in the land was acquired by the Petitioner before or after the marriage. The Petitioner also testified that although he constructed the second house after his marriage to the Respondent, he did so without any assistance from her. The Respondent however has testified that she not only stayed at home to care for the family but that she planted short term crops some of which she sold and used the money for domestic purposes while the rest were used to feed the family.
It would appear to this Court on the evidence that after twenty-one years of caring for the Petitioner and the children of the family the Respondent left the country, in the circumstances which I have already described, to settle in the USA. While residing in the USA she sent money, clothes and other household items from the United States of America during the period from 1988 to 1992 and after Davanna had left the family home to reside in an apartment in Curepe she dutifully paid the rent of $300.00 each month on his behalf. Davanna was then sixteen years of age and as the evidenced revealed he had left home because he could no longer endure his father’s (the Petitioner) physical and psychological abuse.
In 1992 when the Respondent succeeded in having both Davanna and Alisha with her in the United States of America she continued to maintain and educate them without any assistance whatsoever from the Petitioner. Up to date information from the Respondent on the progress of the two younger children is that Davanna was attending medical school while Alisha was still at college. Both children appeared to be doing very well indeed.
I have taken into consideration the several matters referred to in Section 27 of the Matrimonial Proceedings and Property Act, Chap. 45:51 (the Act) and more particularly I have noted the statutory duty placed on this Court by the provisions of the Act to exercise its powers in such a way so as to place the parties so far as it is practicable and having regard to the conduct just so to do in the financial position they would have been if the marriage had not broken down and each had properly discharged his/her financial obligation and responsibilities towards the other.
Counsel for the Respondent has submitted that the Court is obliged to take into consideration the violent conduct of the Petitioner towards the Respondent throughout the marriage and to increase any award for a lumpsum payment as contemplated by the Court. Counsel has referred the Court to the case of Wachtel –vs- Wachtel (supra) where the Court of Appeal referring to a residue of cases where the conduct of one of the parties is considered to be “both obvious and gross” so much so that to order one party to support another whose conduct falls into that category is repugnant to anyone’s sense of justice. Lord Denning in delivering the judgment of the Court suggested that short of falling into the category of “both obvious and gross” the Court “should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life”.
I have carefully analysed the evidence as it relates to the alleged violent conduct meted out to the Respondent by the Petitioner. Unfortunately no details of any violence suffered by the Respondent at the hands of the Petitioner have been given. The Respondent said that “ the Petitioner has always been violent and abusive towards me and during the marriage his violence progressively intensified towards me and towards our children.” Sherry-Ann Maharaj the daughter of the Respondent testified that the Petitioner was always violent and would beat the Respondent regularly.
In my respectful view the application of physical violence by one spouse against the other whether or not it is both obvious and gross ought to be repugnant to anyone’s sense of justice and should be condemned at all times. However I do subscribe to the view expressed by Lord Denning M.R. in the Wachtel case that the conduct of the parties during the marriage should play little or no part in the distribution of the matrimonial assets or the making of financial provisions. That in my view should depend on their contribution to the family whether financially or other wise and their material needs following the break down of the marriage.
While I am prepared to condemn the violence to which the Respondent has been subjected during the marriage I am not inclined to allow such allegation of violence as has been made without any evidence of particulars to affect any financial provision or property settlement which this Court is prepared to make in the circumstances.
In my deliberation I have paid particular attention to the income, earning capacity and other financial resources which each of the parties has or is likely to have in the forseeable future. The evidence shows that the Respondent is now employed as a housekeeper earning a monthly income of approximately $1,000.00 (US) ($6,000.00 TT). This Court has no information has to whether the two younger children are still receiving higher education in the United States of America. Davanna is now twenty-five years old and Alisha is twenty years old. The Petitioner on the other hand is now sixty years old while the Respondent is fifty years old. There is evidence that the Petitioner will be receiving a lumpsum on retirement but unfortunately there is no evidence as to the amount of that payment. His monthly income during his employment was $1,836.00 which is considerably less than that of the Respondent. Given the size of his monthly income I can safely assume that his monthly pension upon retirement would be relatively small. It would be unfair to award a lumpsum payment to the Respondent having regard to the age, health and earning capacity of the Petitioner as well as his capital assets. He must not be reduced to a standard of living below that which he enjoyed during the marriage unless it is absolutely necessary having regard to the evidence before the Court.
The Respondent appears to be doing fine and she should be commended for her devotion to the family over the years. Even though the Court has found that she deserted the Petitioner (the factual basis for the granting of the order nisi dissolving the marriage) the evidence clearly shows that she continued to support her family as diligently and faithfully as she did while she lived with the Petitioner for a period of twenty-one years, that is, from the time of marriage in 1967 until 1988 when she came to the realization that the children’s future will be better secured if she left the Petitioner in search of a brighter tomorrow. The evidence shows that she was a good and faithful wife and a devoted mother. While the Petitioner went out to work the Respondent stayed at home caring for the family in a significant way. She must be awarded for her contribution to the family. In the case of Wachtel –vs- Wachtel (supra) Lord Denning said at page 838:
“…. we may take it that Parliament recognise that the wife who looks after the home
and family contributes much to the family assets as the wife who goes out to work.
The one who contributes in kind the other in money or monies worth. If the Court
comes to the conclusion that the house has been acquired and maintained by the joint efforts of both, then, when the marriage breaks down, it should be regarded as
the joint property of both of them, no matter in whose name it stands.”
In my respectful view not only does the wife who looks after the home and family contributes as much to the family assets as the wife who goes out to work but she contributes as much to the family assets as the husband who goes out to work. When therefore the marriage has broken down and the parties have gone their separate ways it is indeed unfair for one party to be the sole beneficiary of the capital assets (to the exclusion of the other) which they both enjoyed and maintained during the marriage. Sherry-Ann testified that she saw her mother “mixed cement like a man when the house was being built”. Despite the Petitioner’s denial I do not believe that the Respondent stood idly by while the house on the land was being constructed. Although on the evidence it is not clear whether Sherry-Ann was referring to the house in which the family lived or that which was rented out by the Petitioner. I am satisfied however on the evidence before me that the Respondent did make a contribution in the construction of same.
On the totality of the evidenced it will be grossly unfair for this Court not to recognize the significant contribution of the Respondent to the family asset in particular and to the family in general. No valuation of the property at Bertie Street, Eight Street, Five Rivers, Arouca has been put before the Court. Neither is there any evidence of the amount of the retirement benefits to which the Petitioner is entitled. I have already indicated that given the Petitioner’s circumstance it would not be fair to award any part of those benefits to the Respondent. However, I think it will be just that she secures an interest in the matrimonial property described in the summons filed in these proceedings and I shall therefore make the following declaration that is that the property situate at Bertie Street, Eight Street, Five Rivers, Arouca comprising two lots of land with two dwelling houses standing theron be held jointly by the Petitioner and the Respondent.
Finally, having regard to all the circumstances I consider it to be fair and reasonable and consequently I will order that each party will bear his or her own cost of the Respondent’s application.
Sebastian Ventour
Judge
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