- July 8, 2022
- |Concise Law Reports (CLR), Law Of Persons
LAW OF PERSONS – DIVORCE – COURT MAY USE JUDICIAL DISCRETION TO REFUSE RESTITUTION OF CONJUGAL RIGHTS IF THE GRANT WILL RESULT IN PLAINTIFF BEING THREATENED OR ASSAULTED
The plaintiff was joined in holy matrimony with her husband in 2013 in the northern parts of Namibia. Their marriage started experiencing some matrimonial problems which resulted in her filing for a divorce. The plaintiff issued summons against the defendant for divorce, and, amongst the reasons for divorce as stated by the plaintiff were that the defendant was emotionally and physically abusive and in addition, thereto, has been negligent in his duties of looking after the family. Of serious concern was the threat to kill the plaintiff which resulted in a report to the police and the defendant was subsequently arrested and detained. The defendant was still in prison on the day of the hearing.
During the RCR proceedings, the plaintiff gave evidence as required by the Rules of Court in order to obtain an RCR order. In her testimony, she stated that her husband was in custody as a result of threatening to stab her with a knife, which he was holding. The said threat was accompanied by words to the effect that he was going to kill her, and, thereafter, take possession of their car. Despite the fact that he is in custody he sent a message through his friend that he would kill her when he comes out of prison. The plaintiff’s legal practitioner then applied for a final order of divorce in light of the threats of violence and the previous violent conduct of the defendant.
After hearing this evidence, the Court used its judicial discretion and granted a final order without the issuance of an RCR order on the following basis.
‘Plaintiff sought an order of divorce on the basis of amongst other grounds, violent conduct on the part of the respondent. In terms of our law, a marriage can indeed be dissolved on good grounds shown. However, the procedure, is that plaintiff should call upon the defendant to restore conjugal rights within a certain period, failing which a final order of divorce can be granted. The rationale for this requirement is the widely held view of the sanctity of marriage. On that basis, our courts, do not encourage the dissolution of marriages, hence the stringent requirements for a Restitution of Conjugal Rights order before the final order is granted. This is the correct legal position and is indeed understandable.
Of late these courts have been inundated with cases of domestic violence, some of which have resulted in heinous murders mostly perpetrated on women in matrimonial relationships which has put society in a state of shock. The whole nation is constantly in mourning as a result of the heinous murders it is experiencing. Our courts have also added their voices in expressing their disgust in this regard as per Damaseb JP in Voigts v Voigts case I 170/2009 [delivered on 24/06/2013] that:
‘It is a notorious fact that women bear the brunt of violence in our society. The majority of this violence is perpetrated on women by men with whom they are in some sort of relationship: marriage is no exception. This is the phenomenon which is our public discourse is loosely referred to as ‘passion killing’… It is a sad paradox that even against that backdrop Namibia retains a system of divorce laws which, rather than make it possible for women to extricate themselves from loveless marriages, require them to stay in there in the name of ‘sanctity of marriage’.
‘.… the prevalence of the scourge of violence in the family has decidedly tilted the legal convictions of the community in favour of condoning adultery and ending the marriage where the prospect of violence looms large in a dysfunctional union.”
The unavoidable question is, should the court close its judicial eyes and grant RCR where the circumstances are that defendant is likely to use that opportunity to return to his wife, not for harmony but to perpetrate his abuse? The question then is, is this court prepared to take that conscious risk? The answer is certainly no, as by doing so it will be abrogating its duty of protecting the weak from the mighty. Murders of women where the courts have granted them protection orders in terms of the Combating of Domestic Violence Act are not uncommon.
It is my considered view that this is one of those exceptional cases where the plaintiff’s desire for a Restitution of Conjugal Rights is sought as a matter of course and lacks bona fides. In her own words under oath, she testified that she is afraid of the defendant. I, therefore, do not see the logic of her accepting the defendant back where there is a great possibility of violence or even death being carried out on her… to allow the defendant to go back to the plaintiff is to tacitly grant him a license to continue with his violent threats as he pleases.
As a result, the Court granted a final order of divorce, thus terminating the marriage.
Shitaleni v Shitaleni (I 61.2015) [2015] NAHCLD 30 (08 July 2015)