Chan Li Kwan Nui and Another v. Chan Mok Sun

HCMC000017/1977

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Coram: Li. J.

Date of Judgment: 8th December, 1978

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JUDGMENT

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1. This is a petition by the wife LI Kwan-nui against her husband for a decree of divorce on the ground that the marriage has irretrievably broken down. The ground for contending this is that the respondent husband has behaved in such a manner that the wife cannot reasonably be expected to live with him. Perhaps I should say at once that, having reviewed the evidence and considered it as a whole, the fundamental cause for all trouble is that the parties were totally incompatible in temperament. That, of course, is not a ground for divorce.

2. The petitioner, in order to succeed, must show that the husband behaved in a certain manner and, secondly, that the husband's manner is unreasonable. In the second limb of this ingredient or proof, the test as to reasonableness, is to be an objective test. Having applied this test, despite the finding that the manner might well be reasonable in normal circumstances, I have to apply that to the subjective test. In other words, to put the position of the petitioner in the picture and see whatever might be reasonable in normal circumstances is or is not unreasonable as far as the petitioner is concerned. If I come to the conclusion in applying the subjective test, that in the eyes of the petitioner it is unreasonable, then I am bound to come to the conclusion that the marriage has broken down irretrievable. That being the law, I will then come to the facts as I find them.

3. The ground for this petition and the behaviour of the respondent has been listed in the petition to which there has been an answer. I will deal first of all with the allegations and the answers made in the petition one by one. It is common ground that the parties were married on 7th January, 1971. They lived together in the matrimonial home. Both parties are domiciled in Hong Kong. The petitioner and the respondent were both, at the time of the marriage, factory workers. The respondent, later on, worked as a hawker as well. A daughter was born to this union on 17th September, 1971. Owing to the difference in temperament of the couple, the marriage was marred by a series of trouble right from the beginning.

4. The first complaint in the petition is that on the very day of the marriage of the wedding, the respondent refused to serve tea in accordance with the custom of the petitioner's village, to serve tea to the relatives of the petitioner. This is of a very minor matter. In the end because it appears that the respondent was quite willing to serve tea to the petitioner's parents, but he refused, in the first instance, to serve tea, despite arguments, to the god-mother of the petitioner. To the credit of the respondent, in the end, he was persuaded to do so. But he made a rather rude gesture. The god-mother gave him a lucky packet. He immediately turned round and threw it away. That might have embarrassed the petitioner. This might cause distress to her. But it is an incident of a minor nature.

5. The second incident occurred is that within a month after the marriage, the respondent took back all the wedding ornaments that he gave to the petitioner. The answer is and the evidence adduced is that, what the respondent took back were ornaments he borrowed from relatives and friends to be worn by the petitioner during her wedding day. What he himself gave her were not taken back. The evidence so adduced is contradicted and I accept the respondent's evidence that all he took back was the ornaments that he borrowed from others. It is quite natural that he should retrieve them from his wife in order to return them to his various friends or relatives. It may well be a vain and foolish way of doing things. But people of that class and education might be inclined to do such a thing. There is nothing really seriously wrong with that.

6. The third incident is what I shall call the Chinese New Year's Eve incident. According to the petitioner, she had pre-arranged to go with the respondent to the flower market on the first Chinese New Year's Eve after their marriage. There was a quarrel before dinner. As a result, the respondent was sulking. She had arranged to meet her friends somewhere outside. She left home to join her friends after the respondent refused to respond to her request to go with her to the flower market. She, the petitioner, and her friends waited for the respondent for a long while without the respondent appearing. She telephoned the respondent at home. There was no answer. It is common ground that she did not return home that evening until one or two o'clock in the morning of the New Year Day. When she opened the door, the respondent rushed at her, scolded her for coming home so late at the Chinese New Year's Eve and demanded to know where she had gone. There was an argument and a quarrel. In the course of it, the respondent punched her, according to her evidence. The respondent also accused her friend, particularly a man friend, for having taken her out for such a long time.

7. The respondent's evidence is that he was home late after a long day's work that evening. When he was asked by the petitioner to go out with her to the flower market, he said he would like to have a bath and a meal first. The petitioner complained that he was eating so slow. She left without him. He sat at home waiting and waiting for the whole evening. By about two o'clock in the morning, the petitioner returned in the company of a man whom the respondent also knew. The respondent said that there was an argument and a quarrel. But he never laid hands on the petitioner. He admits having told his friend off, that he should never have kept his wife so late. After all, the petitioner is a married woman.

8. In this respect, I have to compare the pleadings with the evidence. While I hold that there is nothing improper and in the fact that the petitioner was quite entitled to go out in the company of a friend who was known to both husband and wife, yet one cannot help feeling that returning home at 1 or 2 a.m. in the morning, knowing full well that even though -- that her husband was sulking, however unjustifiably, may lead to a quarrel in the Chinese New Year. On the other hand, in the answer to the petition, the respondent admits that he did slap his wife twice on the face. That it is quite untrue, as he denied in his evidence, that he laid hands on her. I find that the slapping must be true after all.

9. Evidence is led by the petitioner that the respondent scolded her for neglecting the respondent's mother. Her evidence is that after child birth, she was tired and she had to spend more time with the child. She did not have much time for the mother-in-law. In any event, she said that her relationship with her mother-in-law was rather cool. She didn't take too much care of her. The petitioner also alleges numerous quarrels and threats of hitting her but never carried out. These are of minor matters. Although it is of a distressing nature, I hold that it is nothing more than a usual mother-in-law and daughter-in-law relationship and a husband who is particularly attached to his mother to scold the wife for neglecting the mother.

10. Other incidents in the petition are that the petitioner was assaulted for neglecting to feed the child, the throwing out of the petitioner's mother. The child was young. She often cried in the evening and the respondent used to push the petitioner or kick her up to awake her and accused her of neglecting the child. The only answer by the respondent is that he also fed the child at night and that is in conflict of evidence. However, having seen the parties and having heard their evidence, I believe that it is most likely that the respondent woke his wife and forced her to feed the child even though he might have helped in the day time.

11. The next question is what I call the November incident. That happened in November, 1971. The petitioner returned home late. The respondent accused her of neglecting her home and coming home late. There was a quarrel because the respondent also accused her of making too much noise whistling. There was a struggle, whereupon the respondent bundled the petitioner in a quilt and deposited her on the corridor of their matrimonial home flat. She fought back. When she got back, she reported the matter to the police station. She was then medically examined and she was found to have a bruise on the left thumb and contusion on the head. That has not been properly answered although except for a general denial. Frankly, the respondent has not given satisfactory evidence in explanation of this matter except that there was a quarrel and he never hit her.

12. The next incident is that some time in January, 1972, the respondent unjustifiably accused the petitioner of having burned the child even although the infection or inflammation was caused by inoculation. There was another struggle. In the pleading the petitioner alleged that she was slapped by her husband. When she gave evidence she did not allege to this fact.

13. The next complaint is that she was only given $80 per month to cater for everything. However, I find on the evidence, in the answer as well as on the evidence, that $80 was only for her pocket money. The husband, being a fairly domineering type, would like to keep the purse himself. He provided everything, including milk powder for the baby.

14. The next complaint is in paragraphs 20 and 21 of the petition. There is an allegation that she was accused of having to go to her mother for work. That is freely admitted by the respondent. He felt that the place of a woman was at home. There were constant quarrels about this. What happened was that the wife was not content with having haphazard pocket money of about $80 per month. She wanted to augment her income by working. The way she did was to take the child to her own mother so that she could work there in order to earn some money. This met with the gravest objection by the respondent who felt that the wife should work at home. He took away the sewing machine from her mother-in-law's home to his own home because he said that he assisted in a very small way in the purchase of that sewing machine. That was the behaviour of the respondent towards the petitioner. It does not refer to any assault or battery on the wife. Finally, the wife was so upset by all these constant quarrels about her work that she left her husband for about five to six months starting from April/May, 1972.

15. Pausing at this stage, I must observe that it is rather inconsiderate on the part of the petitioner, whatever grievance she might have suffered, to leave a baby of about 8 months old all in the hand of her husband. Without any ado, she was away for 6 months. However, she relented because she, too, was missing her baby. Since her return, the husband had been hawking and the conduct had changed. The husband gave her $10 a day. There was a great improvement in the pocket money aspect.

16. I do not accept that the husband was gambling to any great extent. Occasionally he might have a game of mahjong. There is no corroborative evidence that the wife would play mahjong for about four or five times a week as alleged in the answer. I don't think either party is an addicted gambler.

17. The next thing happened is that, the child injured her finger and as a result the respondent assaulted his wife. No evidence has been led and I totally disregard it.

18. There was a discussion about putting the child in a nursery so that the wife could go to work. There was an argument because of disagreement. But the wife never said, as alleged, in the petition, that the husband slapped her or assaulted her. He might have threatened her. But he did not hit her.

19. There is the incident of the wife buying a new dress. As a result of this the husband criticized her for being extravagant and forfeited her allowance for one month. Having heard both parties, I do not feel that the incident is proved. As far as this incident is concerned, that the husband is definitely a person of very old-fashioned and dictatorial ideas because he, according to his evidence, objected to the wife's bell-bottomed trousers rather than the dress. He said that he offered to take the wife at once to alter it so that the bottom of the trousers should be narrower. Well, for a man to get into the idea of controlling the wife's fashion, I think he was overstepping the bounds of a husband, however protective he might be.

20. The really major incident occurred in April, 1975, when the wife turned on the light to read newspaper at the time of about 11 o'clock, the husband was tired. He wanted to sleep. He denies that such an event ever happened. The husband admits that such a case did occur although he denied that he assaulted the wife. There was a report to the station on record. That is corroborated. The assault might have been of a minor nature. But it happened. The attitude of the wife might have been somewhat selfish. The conduct of the respondent husband can only be described as crude and uncalled for.

21. There is an accusation that the respondent never cared for the petitioner. As both were not well-to-do people, both had to work long hours, both had to work hard, sometimes it is difficult to oblige the whim and fancy of the wife all the time. There again, I don't find the fact as such. It is agreed that in that event, the behaviour of the repondent has been proved but in an ordinary standard, it cannot be said to be unreasonable.

22. The next thing is that the respondent accused the wife of an adulterous association with another man named Mr. Chu, who was a neighbour. According to the answer, he had seen the petitioner playing mahjong and going to picnics with this Mr. Chu. On one occasion they were on very intimate terms. The repondent's evidence is that on one occasion he followed his wife out to the park when the wife brought the daughter with her. He saw that she and Mr. Chu were sitting in a dark corner together. As soon as he appeared, this friend Mr. Chu ran away. It is no doubt that the respondent is a very jealous husband. He unjustifiably suspected that his wife was over friendly with this Mr. Chu.

23. There is then the swimming suit evidence. I shall not repeat the evidence on it. But on the evidence of fact, it is common ground that there had been a quarrel. The wife in her reply to the answer admitted taking up a bamboo pole fork to jab at the husband's shoulder, thereby causing abrasions. There was another fight and the husband then slapped her on the face.

24. By about June, 1975, the wife left her husband for good, apart from one incident that she returned to the matrimonial home for a matter of a couple of days not voluntarily but because the husband had been following her and forced her to go home with him. When she had the next opportunity to leave, she left. Within two weeks there was a negotiation for divorce. She arranged for the husband to go to her parent's home to arrange for divorce proceedings. There was an argument. The parties disagreed. That was in June, 1975. That was soon after her return in 1976 at her parent's home. A quarrel started to be followed by the usual altercation. The petitioner fell down on the ground and the husband kicked and punched her for a full five minutes. I do not accept the extent of this attack. Had it been true, she would have appeared more like a pulp than anything else. However, I accept the evidence that there had been an assault and the matter was again reported to the police station. When she was medically examined some minor injuries were found. There was no action taken by the police against the respondent.

25. Such are the history of the marriage between 1971 down to 1976.

26. Looking at the case as a whole and taking the evidence and the various incidents in the totality, I come to the conclusion that, firstly, the parties were completely different in temperament and should have never been married. It was unfortunate. However, that is not the criterion for me to grant or refuse a decree. The only thing that is similar is that both husband and wife appear to be persons with quick and violent temper. Taking this into consideration, my first reaction is that a violent spouse deserves another violent spouse. They could be a good match against one another. That, again, it is not the sole criterion I have to consider whether subjectively, whatever conduct that is reasonable ordinarily might or might not be unreasonable to the petitioner.

27. Taking the various quarrels and the various assaults which are of not a serious nature, I find that, for the people of that level of education and that class, it is not too unreasonable. However, it appears that ever since their marriage, there had been constant quarrels and assaults due to the fault of the respondent. Perhaps his greatest fault is this: that while the wife is an active person eager to work and eager to play, he still rams down on her throat the idea that a woman's place is at home. That I feel is the greatest trouble. He asserts his authority by objecting seriously to his wife taking up work even though she was doing it to augment her income, albeit that it might not be for the family income. He backed his idea by force by assaulting the wife. That might or might not be acceptable to other wives, but to this wife, this is certainly unacceptable.

28. For these reasons, I find that the behaviour of the respondent as alleged by the amended petition has been satisfactorily proved by the balance of probability. I also find that subjectively speaking, having regard to the wife's temperament and personality, such behaviour is unreasonable to her. For these reasons, I feel compelled to grant a decree.

29. There has been an amended prayer that she be given reasonable access to the child. Since the custody and control of the child has not been asked for, the child must remain with the respondent. The right of access to the child will be granted to the petitioner once a month - one Sunday afternoon to be arranged between the parties at least one week prior to the day of access. The venue of access should be in the respondent's mother's home. The respondent should not be present. Costs of the petition to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Stone (Ip, Ku & Stoppa) for petitioner

Miss Leong (Helen A. Lo & Co.,) for respondent