Yeung Leung Yau Lin v. Yeung Kam Wah

HCMC000024/1976

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

ACTION NO. 24 OF 1976

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Coram: Li, J.

Date of Judgment: 26th January, 1977 at 10.50 a.m.

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JUDGMENT

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1. The parties in this case were married at the Marriage Registry on the 16th of March, 1972. A child was born to the union on the 13th of March, 1973. On the 27th of April, 1973, the wife left the matrimonial home and never returned to the respondent, the husband, since. Now the wife petitions for a decree on the ground that she cannot be expected to live with the respondent who has behaved unreasonably and that the marriage has broken down irretrievably.

2. The incidents in support of this are that in or about August 1972 when the petitioner was pregnant for two months, the respondent falsely alleged that the child was not his and kicked the petitioner's abdomen with his legs and slapped her twice. The petitioner went to Shamshuipo Police Station to complain of the assault, and she was then sent to Kwong Wah Hospital for medical examination. In or about February 1973, the respondent assaulted the petitioner as a result of the petitioner's refusal to have sexual intercourse with him. The reason for the petitioner's refusal was that she was afraid that sexual intercourse would affect the safety of the child. Lastly, on the 27th of April the respondent unreasonably drove the petitioner out of the matrimonial home. Thus, the issue is twofold: first, that the respondent behaved in an unreasonable manner, assaulted and insulted the petitioner, and secondly, the petitioner was driven away physically from the matrimonial home, or that the conduct of the respondent was such that it would constitute constructive desertion on the part of the respondent.

3. The petitioner's evidence is that although the marriage at the registry took place some time in 1972 yet, in fact, a marriage in accordance with the Chinese ceremony was celebrated some time in December 1971 and was consummated well before the 16th of March, 1972. On the wedding night she was tired. The respondent forced her to have sexual relations with him. She was distressed and afterwards she attempted to commit suicide by cutting her own wrist. She was taken to hospital the next day or the next evening and received medical treatment. From that time onwards she said the respondent exercised excessive demand on her and attempted to have sexual relations with her practically every night. When she refused the respondent would assault her. On the 12th of August she returned home at about 11 o'clock. The respondent refused to open the door for her and assaulted her saying that at that time she was two months pregnant - he (the respondent) was not the father of the child. The respondent slapped her and kicked her on the abdomen. As a result she reported to the Police Station. Throughout the marriage the respondent did not pay her sufficient housekeeping money. She had to borrow money from others and from her father to maintain herself. Alternatively she had to go out to work to augment the income. Before the child was born the respondent indicated that he did not want the child and was prepared - and made arrangement to have the child adopted out. When the child was born the respondent changed his mind and said that he could maintain the child but would not be willing to maintain the petitioner and drove the petitioner out. As a result the petitioner left the respondent on the 27th of April, 1973.

4. The respondent's answer denied all allegations of such unreasonable conduct. The respondent's evidence was that on the evening after they celebrated the marriage according to the Chinese customs in December 1971 they returned home. He found that instead of behaving like a bride the petitioner was simply interested in finding out, by going through his belongings and going through the gifts that friends had given to the marriage, to find out and check the respondent's wealth. When he insisted on consummating the marriage with the petitioner, the petitioner refused him there was a quarrel. He felt sleepy. Early in the same morning he was awakened and found the petitioner was attempting to commit suicide. The next day he telephoned the petitioner's father. The two of them brought the petitioner to Queen Elizabeth Hospital for medical examination and treatment. The doctor found that the petitioner was mentally disturbed and referred her to the Yaumatic Clinic where the doctor gave her some pills. Having taken the pills the petitioner found herself dizzy and accused the respondent of conspiring with the doctor in the clinic to drug her so that he could force her to submit to sexual intercourse. Throughout the marriage the petitioner refused his advances to consumate the marriage. Every time the respondent approached the petitioner he was given the cold shoulder and sometimes even a slap on the face. The petitioner would not have anything to do with the respondent except on pay days. If on that day the respondent paid household expenses she would allow him to have sexual intercourse with her grudgingly. The petitioner would leave him and went to her father immediately after any quarrel. All in all the petitioner only stayed home for about two or three days in a week. Most of the time she would go away to her father or would go out to play mahjong with neighbours. Very often the mahjong game would last overnight and she would not return. On or about the 12th of August, the incident did occur. The petitioner did not return home the previous night, the 11th of August, and did not return home until after eleven on the 12th of August. The late return on previous occasions had been the subject matter of complaint by the principal tenant who told the respondent that the respondent should be responsible to go and open the door for his wife on such late returns. On that occasion the respondent opened the door after certain delay. There was a quarrel at the door. As a result the petitioner went straight to the police station and reported on the respondent. Needless to say that both of them were sent away after some warning by the police saying that this was a family dispute and they should resolve the matter among themselves and in court. He denied having assaulted her at all. The respondent said that soon after the marriage in December 1971 the petitioner left him without having the marriage consummated. She went back to her father and did not return until Chinese New Year's eve some few days later. Then the marriage was consummated soon after the Chinese New Year.

5. In April 1972 the petitioner left home again for two months and did not return until June 1972, In August the petitioner told the respondent that she was pregnant for three months. He was suspicious and did say that the child was not his by comparing and considering the time that she had been away from the matrimonial home. The respondent admitted having made such accusation. However, he frankly admitted that he was wrong and it was all a misunderstanding. Early in the year, 1973, even before the child was born the petitioner indicated that she was going to leave the respondent and the child after the child was born. He tried his best to persuade the petitioner not to do so and indeed went to see the petitioner's father in order to prevent such separation without any success. He denied having kicked the petitioner but he admitted that when there were frequent quarrels and the petitioner slapped him and beat him, he retaliated by pushing her away. In answer to the petition he said the marriage was not irretrievably broken down because of his conduct. He also alleged that even after the petitioner had left him in April 1973 he had on many occasions tried to persuade the petitioner to return home and the petitioner refused him.

6. On these facts it is for me to decide whether, in the circumstances, the marriage has broken down irretrievably and the parties should not be compelled to live together. There is no doubt that the marriage was not entirely a happy one. I cannot conscientiously find, however, that the unhappiness was caused by the conduct of the respondent. It is admitted by the petitioner that as a result of her attempt to commit suicide she went to see a doctor the next day. Upon taking some pills she at once accused her husband of drugging her so as to force himself upon her. As to the incident on the 12th of August the petitioner at first said that the respondent kicked her because she refused him sexual intercourse. On cross-examination she admitted that that was the occasion when she was coming home and the respondent refused her entry then slapped her and there was a quarrel. There was a quarrel, and there could be a fight between the two of them. The medical examination was carried out by a doctor at the Kwong Wah Hospital and the medical certificate was admitted in evidence as exhibit 2. It reads:

"The above-named (that is the petitioner) was seen by me on the 12th of August 1972 at the Casualty Department where I was on duty. She complained of being assaulted by her husband. On examination there was no external injury seen. She was discharged after examination."

Had there been a kick on the abdomen some mark would have been left and some pain would have been caused. There must be something found by the doctor. Apparently nothing was found that was wrong on the abdomen. I come to the conclusion that the incident was no more than a normal fight between husband and wife during a quarrel, and I am not satisfied that the respondent kicked the petitioner.

7. As to the allegation of the respondent denying paternity of the child it was frankly admitted by the respondent. That was a different incident even according to the petitioner herself. The respondent said that the petitioner left him or the matrimonial home as from the middle of April 1972 and did not return to the matrimonial home until the middle of June, 1972. Thus, there was no sexual relationship between the two of them until after the middle of June 1972. Before the petitioner left the respondent in April there was no sign or indication that she was pregnant then. In August 1972, the petitioner told the respondent that she was three months pregnant. A simple calculation of the time would indicate that it was impossible unless the child was not the respondent's. Therefore the respondent made a mistake and was angry and said that the child was not his during a quarrel.

8. As to the incident in February 1973 it was said that the respondent assaulted the petitioner for her refusal to have sexual intercourse. The reason for her refusal was that she feared that at the stage of advanced pregnancy intercourse would hurt the conceived child. However, the reason the petitioner gave in answer to cross-examination was different. She said that she refused intercourse early in 1973 because she found that the respondent did not love her. As to the allegation that the respondent did not give her sufficient household money, she gave evidence of various meagre payments by the respondent from time to time since their marriage. However, the witness for the petitioner, her father, said - when asked how much the respondent paid the petitioner - that the petitioner told him (the father) that about $300 a month was paid or sometimes less. That rather corroborates the respondent's evidence that he paid the petitioner expenses money out of his earnings of about $300 per month. The respondent accused the petitioner of being a mahjong addict. She played mahjong many times a week and neglected her household duties completely. The petitioner's father confirmed that she used to play mahjong when she had no work to do before the marriage. Her father said he did not know whether she played mahjong after marriage. This was strongly denied by the petitioner. She said that she never played mahjong after marriage. Taking human behaviour into consideration it is rather surprising that the petitioner could take a 180⁰ turn as she was so fond of mahjong as a girl. It is unlikely that she suddenly and completely give up mahjong immediately upon marriage.

9. As to the conduct of the parties the petitioner's father's evidence in cross-examination is relevant. He said that there were constant quarrels. He admitted that his daughter frequently returned home and he had to bring her back, and that the respondent many times went to ask him or telephoned him to get the petitioner back. He said that the complaints the petitioner made were that the respondent did not give sufficient money. When asked whether there was any other complaint the father said that the petitioner alleged that the respondent complained about the poor quality as well as the quantity of food and there was no other complaint. There was evidence. The father also said as to the final departure of the petitioner from the matrimonial home that the petitioner alleged well before April 1973 the respondent wanted to get rid of her. However, there is evidence and it was freely admitted that sometime after the child was born the respondent employed a baby-sitter to take care of the child at the expenses of $400 a month. That comparatively speaking was quite a substantial sum to be paid by the respondent. The petitioner's father alleged that even before the child was born the respondent indicated that he did not want the child and he could not get along with the petitioner. But the father did not got to the extent of saying that the respondent would like to get rid of the petitioner. All he alleged was that at the Sai Ho Restaurant the respondent told him that he could not get along with his daughter and the son was not the respondent's child. So he (the respondent) made arrangement for the adoption of the child by someone else. Then the respondent changed his mind. When he was cross-examined on this, he was asked when his daughter finally left the respondent. He said he could not remember, but just one month after the child's birth.

"She at first wanted to leave as soon as the child was born, I persuaded her not to do so until the child was one month old. She must have left him about 3 ½ years by now."

That is the answer of the petitioner's father. In other words, well before the 27th of April the petitioner had decided to leave home. I am satisfied that the respondent would not like to send the petitioner away even if it was for economic reasons because when the petitioner left the matrimonial home he had to pay someone to look after the baby. Indeed I accept his evidence that he tried to get the petitioner home even after she left in April 1973.

10. On the petitioner's own evidence she admitted that she left because she left unhappy with the respondent. When the petitioner was asked whether the respondent tried to maintain the marriage she said, "He did try but I did not want to." In answer to the next question, "you could not stand him." She answered, "That is so" or "correct." "And so you left him," and the answer was yes.

11. Having regard to the totality of the evidence and having judged the behaviour and conduct of the petitioner in court and in the course of the evidence I find that the peititioner is rather a neurotic woman. She may be not so much interested in sex. She is more demanding in her rights as a wife but she is not so keen on the duties of a wife. On her own evidence she only alleged that on the average she had sexual intercourse with her husband about twelve times per month. This may or may not be excessive according to individual standard. But for a newly married couple it may well be that twelve times a month is not particularly excessive or over-demanding. That is neither here nor there. The respondent's answer was that she was generally not interested in him because right from the beginning she did not like the respondent anyway. This is a sad marriage. Perhaps it was a mistake right from the beginning. The courtship lasted less than three months and the parties met for about three times at tea. It was entirely an arranged marriage.

12. The trouble started right on the first night after the celebration of the marriage in Chinese customs in December 1971 and from that time the mind of the petitioner was set on that she would perform the minimum of the wifely duties but demand that the husband should do everything to cater to her whims. She complained that the husband was not accompanying her to see doctor in the months of pre-natal examination. One must consider that the husband would have to work during daytime and it is not an absolute necessity that the husband should be present at the wife's bedside during child-birth. She accused him of overdemanding. All she said was that on the average it was about twelve times a month. She accused him of not giving sufficient money for house-keeping. Even her father said that she told him that the respondent gave her about $300 a month, sometimes less. Considering the average income of the husband which was a something between $700 or $800 per month and he had to pay rent for the matrimonial home, $300 is not a sum is completely out of proportion. There is also the allegation that the respondent has another wife. The respondent frankly admitted that he had lived with a woman in China some 20 years ago but that cohabitation had ceased a long time before he met the petitioner. This might or might not have affected the petitioner. But this is not made a ground of this petition.

13. As to the complaint of physical violence I accept the evidence of the respondent that the petitioner is a woman of equally violent temper. She would assault the respondent when he made his advances and, as a result, there was the inevitable quarrel and they fought. I have dealt with the incident of the 12th of August and I have considered the allegation as to the incident of assault in February 1973. I do not find that there is grave misconduct on the part of the respondent. It is true that according to the principle as laid down in Ash v. Ash in 1973 All England Law Reports at page 582, in considering the conduct of the parties I have not only to apply the objective test but also to consider the conduct of the petitioner as well as the respondent and find whether the marriage has irretrievably broken down between the two of them. But the conduct of the parties is such that on the one hand you have a petitioner who is neurotic and violent in temper with a rather distorted sense of rights and duties as a wife and on the other hand you have a husband, the respondent, who is the rough type of person who was certainly not very able to handle a neurotic woman. As far as the grounds of this petition is concerned, I have come to the conclusion that I am not satisfied that the breakdown of marriage irretrievably was due to the conduct of the respondent and that the petitioner cannot reasonably be expected to live with the respondent. If so it was entirely due to the neurotic nature of the petitioner. For these reasons the petition must be dismissed and with costs.

Representation: