Court grants £50/month maintenance to wife alleging husband's sodomy and cruelty, rejecting his debt defense.

[*314] 1977 October 10

(KOURRIS, S.D.J. )

IN THE DISTRICT COURT OF NICOSIA

In the matter of an application by

E. C.

Applicant,

and

A. C.

Respondent.

(Maintenance Application No.43/76)

Husband and wife - Maintenance - Husband guilty of sodomy and cruelty - Wife rightly left the matrimonial home - Husband guilty of failing to provide reasonable maintenance to the wife - Section 40 of the Courts of Justice Law, 1960 (Law 14/60) - Amount of maintenance - Principles applicable.

Husband and wife - Sodomy - Proof - Degree of evidence required - Need of corroboration - And need that Judge should warn himself of the danger of acting on uncorroborated evidence.

St. Charalambous, for the Applicant.

G. Constantinides, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

KOURRIS, S.D.J.:- By this application the [*315] applicant claims £75.- per month maintenance on the ground that her husband wilfully neglected to maintain her. Her application is based on Section 40 of the Courts of Justice Law No. 14/60. By her application she based her claim on an allegation that the respondent, i.e. her husband, force and against her will committed sodomy with her and that he was guilty of various acts of cruelty which she detailed in particulars.

The husband opposed the application and he denied the allegations of the wife asserting that the reason why his wife left the house was because she wanted his mother to transfer her house into the name of their daughter Thecla.

The issues, therefore, which the Court has to decide are:-

(1) Whether the husband, the respondent, has committed sodomy on the person of the wife, the applicant; and.

(2) Whether the respondent has been guilty of cruelty towards the applicant.

The applicant gave evidence and the facts as they appear from her evidence shortly are as follows.

She married her husband on 20th May, 1951, at Larnaca in accordance with the rites of the Greek Orthodox Church and out of this marriage they have two daughters who are both adults now. They moved to Nicosia in 1955 and they lived at Nicosia until the time the applicant left the house. The applicant is now 47 years old end her husband 48 and one of their daughters is engaged to be[*316] married in London and the other daughter, called Maria, is at Larnaca residing with her mother and working there and gave evidence in support of the application.

The applicant said that she got married as soon as she finished a Secondary School and from that period onwards she was having sexual relations with her husband both in a naturel and in an unnatural way. As she was very young she thought that the unnatural love-making was normal in married couples, but later on when she discovered that it was not normal, she complained about it to Father Stavros Spanos, who was the President of the Ecclesiastical Court of Larnaca and she was refusing to have unnatural intercourse with her husband but her husband made her submit to sodomy by force and by threats and that for the last six years of their marriage the husband did not have normal sexual intercourse with her but only sodomy. She complained that her husband’s conduct rendered her life intolerable and seriously affected her nerves as a result of which she called on physicians and a psychiatrist and she is still under treatment by a psychiatrist. Eventually the wife left the house on 17.7.1976 having the previous day a quarrel with her husband over the fees of the television and radio, whereupon her husband told her to get her daughter and leave the house.

She further alleged that her husband invited her to masturbate him, that he was keeping porno-magazines in the house and, that she discovered a bundle of correspondence that her husband was having with women living abroad inviting them to come to Cyprus either to marry them or to maintain them. Some of these letters were produced before [*317] the Court and are exhibits 1 and 2. She also alleged that her husband was inserting his fingers in her genital parts and was also asking her to put his penis in her mouth.

The applicant also complained that her husband threatened that he would cripple her, and on one occasion when the husband returned home late at night, they had a quarrel about it whereupon the applicant locked herself in the bathromm and the respondent broke the pane of the door to enter into it and the applicant in order to save herself jumped out of the window of the bathroom.

The daughter of the litigants Maria Christodoulidou, who is now 24 years old, gave evidence and said that her parents had friction and they often quarrelled, because her father used to go out in the night to various clubs and he did not leave sufficient money for the maintenance of the family, and that she knew that there were a number of letters in the house written by her father to various women and she also knew that on the bed-side table of her father were obscene magazines. She corroborated the evidence of her mother that her father threatened her mother that he would cripple her and about the incident of the bathroom which had taken place in the summer of 1976.

The last witness called on behalf of the applicant was Dr. Omiros Hadjidemetriou, a gynaecologist, practising at Nicosia, who stated that the applicant has been his patient for many years past for cold and for gynaecological troubles and that she has been to him for

gynaecological troubles in 1973 and when he examined her [*318] he found that she was suffering from cystitis. She also complained

of burning and pains on the anus and having examined her, found that there were scratches on the anus possibly caused by human finger nails. This witness said that if a person has regularly sexual intercourse against the order of nature, then a doctor might observe a relaxation of the sphincter, but if a very long time elapses, then the doctor might or might not find relaxation of the sphincter.

The respondent gave evidence on oath and he denied the allegations of his wife that he is a sexually perverted person and that he committed sodomy on his wife or that he ill-treated her. He said that his wife left the houseon 17.7.1976 telling him that she was ill and that she would go to her mother at Larnaca, and she did not return. With regard to the letters, he said that he was corresponding with women before his marriage and that he did not write any letters to women after his marriage and that the letters bearing dates during his married life have been forged. He said that the magazines were not pornomagazines but "Playboy" magazines and other magazines similar to "Playboy". He explained that the reason why he used to go home late at night was because he was working at CYTA on the technical staff and that some times his shift of work finished at 2 o' clock in the morning. With regard to the bath room incident, the respondent said that when his wife locked herself in the bathroom, he was afraid that she might do something wrong and he wanted to enter into the bathroom and that is the reason why he broke the pane of the door. [*319]

Mr. Agathangelos Protopapas, an advocate of Kyrenia and now residing at Nicosia, gave evidence as to the efforts of himself and Mr. Constantinides to reconcile the parties in about January, 1977, and that their efforts became fruitless because the applicant, although she suggested that the house of her mother-in-law be left to her daughter Thecla by the will of her mother-in-law, later on she changed her mind, when she learnt that a will can be revoked, and wanted the house to be transferred in the name of Thecla. This witness denied that the applicant compained to him of the sodomy and he further denied that Mr. Charalambous during a meeting they had in the office of Mr. Constantinides mentioned to him the sexual pervertions of the respondent.

This is shortly the evidence before me regarding the charge of sodomy against the respondent and the complaint of the applicant for ill-treatment.

Before proceeding any further, I would like to state the legal principles applying in cases of this nature. In the case of Statham v. Statham

(1928) All E.R., Rep., p. 219, it was held:

"Where a wife petitions for divorce on the ground that her husband has been guilty of sodomy with her cogent evidence is required to overcome the presumption that the husband is innocent. The same principles apply in such divorce proceedings as those which apply on the trial of a charge of sodomy in a criminal court. The fact must be proved beyond reasonable doubt with due and [*320] cautions consideration of the witnesses and their evidence, and the judge must warn the jury of the gravity of returning a verdict in favour of the wife on such a ground in the absence of evidence to corroborate her story in some material particular tending to show that her husband had committed the offence. Notwithstanding the warning the jury may find for the wife, but if no warning is given and they do so their verdict may be set aside".

Lord Hanworth, M.R., had this to say at page 221 :

"First, then, as to the evidence necessary to prove the offence charged. It is quite clear from the authorities cited that cogent evidence is required to overcome the presumption of innocence where, such a charge is made. As Sir Cresswell said in N. v. N. ((1862) 3 Sw. & Tr. at p. 238): "

"'The crime here imputed is so heinous and so contrary to experience, that it would be most unreasonable to find a verdict of guilty where there is simply oath against oath, without any further evidence, direct or circumstantial, to support the charge’".

"The same principles apply, in my judgment, in divorce proceedings as in a criminal court, for it it is the very nature of the charge, easy to make and difficult to repel, which demands such proof as is adequate to establish the guilt of the [*321] person charged in the minds of reasonable men. Whatever may be the consequences to the party charged, whether it be, in a criminal court, punishment, or in a civil court, loss of status, the nature of the fact remains the same; and that fact must be proved beyond reasonable doubt with due and cautions consideration of the witnesses and their evidence. As Lord Dunedin said in Thompson v. R. ((1918) A.C. at p. 226):"

"’The law of evidence in criminal cases is really nothing more than a set of practical rules which experience has shown to be best fitted to elicit the truth as to guilt without causing undue prejudice to the prisoner’".

"It is on this ground that the evidence of an accomplice is not accepted simpliciter and without corroboration: see per Patterson, J., in R. v. Jellyman ((1838),

8 C. & P. 604); and a conviction may be quashed in a court of appeal where the judge at the trial has omitted to caution the jury against conviction upon the uncorroborated evidence of an accomplice (see R. v. Tate (1908) 2 K.B. 680). Further, that corroboration must be found in some material particulars tending to show that the accused committed the acts charged. It must be evidence which affects the accused by connecting or tending to connect him with the crime (see R.v. Baskerville (1916) 2 K.B. 658)".

In the case of Lawson v. Lawson (1955) 1 All E.R., 341, again a case in which the wife brought[*322] proceedings, against her husband on the ground of sodomy and persistent cruelty, Lord Goddard, C.J., said the following on the question of corroboration (pp. 342 and 343):

"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution, and a jury would always be directed, in a case of this sort, if it were a trial on an Indictment, that, whether the person was or was not to be regarded as an accomplice, it would be undesirable or dangerous to convict on the evidence of that person alone, but that it was open to the jury to convict, if satisfied with the evidence. "

"The question of corroboration very often arises. It comes up in three different ways. First, it arises where there is the unsworn evidence of a child. Although the unsworn evidence of a child may be taken in certain cases, if a man is being tried for an offence against the child, there can be no case to go to the jury unless the evidence is corroborated. Then, of course, it is for the judge to say whether there is any evidence that can amount to corroboration, and it is for the jury to say whether they are satisfied with the evidence that is tendered as corroboration. That is the first case. "

"The second case where the question of corroboration arises is where the witness is an accomplice. An accomplice is a person who, in a matter of crime [*323] or in a matter of this description, is a consenting party or a participant. A jury is always directed that it is unsafe to convict on the uncorroborated evidence of an accomplice; but there again, if the jury are satisfied that the evidence of the accomplice has established the case and if they feel that they can, without doubt, trust that evidence, it is within their province to convict, and they do convict quite often. "

"The third case is the ordinary sexual case, where a woman complains of an indecent assault or a rape. It has been the practice of judges for many years to warn juries that they should be reluctant to convict on the uncorroborated evidence of the woman, because it is so easy to make and so extremely difficult to rebut a charge of that description. "

"Therefore, in substance, the warring given to a jury is the same whether it is about the evidence of an accomplice or whether it is about the evidence of a woman in a sexual case, and it makes no difference, of course, whether the act which the woman alleges has been committed is what I may call a natural act or, as it is in this case, an unnatural act. "

"Here, after a full and careful analysis of the evidence, the Divisional Court held that the justices were entitled to come to the conclusion that the woman's evidence was true and that she had made out her case. Indeed, I think both judges in the Divisional Court came to the conclusion that her [*324] evidence was true. They had not seen the witnesses any more than we have, but I think it would be a very strong thing for this court now to say that, in their opinion, the evidence was not such as the justices were entitled to rely on. "

"Counsel for the husband, who put every conceivable point that could be put for his client, and put them very clearly, commented that it was unfortunate that the two justices in this case were both women. I do not think, myself, that that was a disadvantage in this case, because, in the first place, one of the great advantages of lay magistrates is that they live, work and act amongst the people in their district. They know their characteristics, their trials, their difficulties, and so forth, and are often in a very good position to determine whether the person with whom they are dealing is telling the truth. Women justices can often be very valuable judges of fact where they have to consider whether women are telling the truth. Very often, I think, a woman may be able to come to a better conclusion whether women are more likely to be telling the truth than a man, though there is the risk of mistakes, which cannot be helped in human justice. "

"In the present case the justices found that the wife was not a consenting party. That means that the wife, being forced by her husband, submitted to these acts, but that she was not a willing party. That seems to me to put her out of the category of an accomplice." [*325]

"If the justices came to the conclusion that these acts had been committed on her, and if she was not a consenting party in the sense of having voluntarily allowed her husband to satisfy himself in this unnatural way, I do not see how it could be said that she was not assaulted and that she is not entitled to say that these were acts of cruelty on her, or, at any rate, attempted acts of cruelty which she resisted so that her husband could not consummate them. That, surely, would be a case of persistent assaults on her".

In the case of Bampton v. Bampton (1959)

2 All E.R.,766, the case of Statham v. Statham was considered and followed on the question of condonation and Watson, L.J., said that "it is not readily to be taken against a wife, especially a yound wife, that there has been a real consent. If the same acts were under consideration between two persons not . . . husband and wife . . . the presence or absence of consent would have to be considered in a different way".

On the evidence adduced before me I am satisfied that when the applicant married the respondent she had no idea that having unnatural intercourse was not part of normal love-making and therefore it cannot be said that she consented to sodomy. When she found out that it was not normal love-making, she refused to let her husband having intercourse on her against the order of nature and she eventually submitted to this. But she never consented and therefore I find that she was not a consenting party and therefore she was not an accomplice having regard to[*326] to the principles enunciated in the hereinabove named cases. But although she was not a consenting party and therefore not an accomplice, it would be undesirable or dangerous to convict on the eivdence of that person alone but it is open to the Court to convict if satisfied with the evidence.

In the present case I have looked for corroboration regarding the accusation of sodomy of the applicant against her husband, but I did not find any. It is true that Dr. Omiros Hadjidemetriou, called on behalf of the applicant, said that in the case of a person who has regularly sexual intercourse against the order of nature, one might observe a relaxation of the sphincter but if a very long time elapses then the doctor might or might not find relaxation of the sphincter. But this doctor was not called to give evidence to the effect that the applicant complained to him of sodomy, nor that he examined her in that regard, but she only complained to him that she had a burning and a pain on the anus and of inflammation of the urinary bladder, When he examined her, he found scratches on the anus which were caused by finger nails. This evidence does not corroborate the allegation of the applicant about sodomy but it is some corroboration regarding her evidence that her husband was interfering with her genital parts with his fingers.

It is true that no medical evidence could have been adduced with regard to her allegations that her husband wanted to masturbate him or to put his panis in her mouth but there is no other evidence to corroborate [*327] her allegations. I have warned myself of the gravity of finding in favour of the wife on the ground of sodomy in the absence of evidence to corroborate her story in some material part tending to show that her husband had sodomy with her, but I have decided to accept her evidence as true because she impressed me as a truthful and reliable witness. She gave evidence in a straightforward way and I find her explanation very natural that she did not complan to her relatives about it because she was ashamed to do so.

The husband did not impress me as a truthful witness and I reject his version that he did not make his wife to submit to sodomy. When he was giving evidence he was evasive and was trying all the time to impress me that he really wanted his wife back.

I also accept the evidence of the daughter of the parties Maro who gave evidence on behalf of her mother that her mother in order to save herself during an incident she jumped out of the window of the bathroom. This witness also corroborated the evidence of her mother with regard to the threats of her father that he would cripple her mother. I am satisfied that this is what happened and I reject the explanation of the respondent that he said that he would cripple the man she would marry, if she intended to marry another man.

When the applicant was cross-examined it was suggested to her that she refused to have normal, intercourse and that she wanted the unnatural love-making because she did not want to bear children. I dismiss forthwith this allegation of the respondent who did not dare to [*328] support it with his evidence or with any evidence whatsoever. He was a person who was having correspondence with women living abroad proposing marriage to some of them and proposing to others to come to Cyprus and maintain them. This is apparent from Exhibits 1 and 2.

This application was considerably contested as to what had taken place when Mr. Protopapas and Mr. Constantinides with the leave of Mr. Charalambous went to Larnaca early in January, 1977, to reconcile the parties. I do not propose to enter into detailed examination of this evidence. Most of the evidence of this witness was with regard to what had taken place during their attempts to reconcile the parties. But this witness when cross-examined denied that the applicant ever complained to him of the sexual perversion of her husband. I do not challenge the truthfulness of this witness who impressed me as an honest witness, but I do not think his memory served him right. I had the opportunity to observe him when he was giving evidence and he gave me the impression that he was a man of weak memory and I do not propose to place much reliance on his evidence.

To sum up the accusation of the applicant against her husband for sodomy, in my opinion, requires corroboration and I found that there was no corroborative evidence about sodomy, but I have warned myself of the danger of accepting her evidence without corroboration and I have reached the conclusion to accept her evidence and I am satisfied that the applicant proved to my satisfaction her accusation against her husband about sodomy and [*329] cruelty. Also the sodomy amounts to cruelty and the other acts which her husband made upon her and the other acts which he invited her to do, to my mind, may amount to cruelty.

For these reasons the wife rightly left the matrimonial home inasmuch as the husband threatened to cripple her and consequently the husband is guilty of failing to provide his wife reasonable maintenance in accordance with Section, 40 of the Courts of Justice Law No. 14/60.

As I am satisfied that the husband wilfully neglected to provide his wife with reasonable maintenance, I shall deal with the means of the husband and the wife for the purpose of making a maintenance order. Before proceeding to do, so, I propose to set out the principles on which the Courts rely in making maintenance orders.

In the case of Kershaw v. Kershaw

(1964) 3 All E.R., 635 Sir Jocelyn Simon, P., said th following at pp. 636 - 7:-

"If any general principles are to govern the approach to a wife’s maintenance, I think that they are as follows. In cohabitation a wife shares with her husband a standard of living appropriate to his income, or, if she also Is earning, their joint incomes. If cohabitation is destroyed by the wrongful conduct of the husband the wife’s maintenance should be so assessed that her standard of living does not suffer more than is inherent in the circumstances themselves of separation. Her [*330] standard of living may well have to be lower after the breach of cohabitation than it was before, since there may now be two households to be maintained in place of the former one, in which household expenses were shared. Although the standard of living of both parties may therefore have to be lower than it was before there was the breach of cohabitation, in general the wife should not be relegated to a lower standard of living than that which her husband enjoys".

Also in the case of Atwood v. Atwood (1968)

3 All E.R., 385 Sir Jocelyn Simon, P., said the following at p. 388:-

"In my view the general considerations which should be borne in mind in this type of case arc as follows - (i) In cohabitation a wife and the children share with the husband a standard of living appropriate to his income, or, if the wife is also working, their joint incomes. (ii) Where cohabitation has been disrupted by a matrimonial offence on the part of the husband, the wife's and children’s maintenance should be so assessed that their standard of living does not suffer more than is inherent in the circumstances of separation, though the standard may be lower than theretofore (since the income or incomes may now have to support two house -holds in place of the former one where household expenses were shared). (iii) Therefore, although the standard of living of all [*331] parties may have to be lower than before there was a breach of cohabitation, in general the wife and children should not be relegated to a significantly lower standard of living than that which the husband enjoys. As to the foregoing, see Kershaw v. Kershaw and Ashley v. Ashley.

(iv) Subject to what follows, neither should the standard of living of the wife be put significantly higher than that of the husband, since so to do would in effect amount to imposing a fine on him for his matrimonial offence, and that is not justified by the modern law. (v) In determining the relevant standard of living of each party, the court should take into account the inescapable expenses of each party, especially, though not exclusively, expenses of earning an income and of maintaining any relevant child. (vi) If the wife is earning an income, or if she has what should in all the circumstances be considered as a potential earning capacity, that must be taken into account in determining the relevant standards of living: see Rose v. Rose, per Denning, L.J., and Levett - Yeats v. Levett - Yeats. (vii) Where a wife is earning an income, that ought generally to be brought into account, unless it would be reasonable to expect her to give up the source of the income: Levett - Yeats v. Levet - Yeats. (viii) Where the wife is earning an income, the whole of this need not, and should not ordinarily, be brought into account so as to enure to the husband’s benefit; Ward v. Ward, and J. v. J., per Sachs, J., and per Hodson, L.J." [*332]

"(ix) This consideration is particularly potent where the wife only takes up employment in consequence of the disruption of the marriage by the husband, or where she would not reasonably be expected to be working if the marriage had not been so disrupted. (x) At the end of the case, the court must ensure that the result of its order is not to depress the husband below subsistence level: Ashley v. Ashley".

In a recent case, Gengler v. Gengler,

(1976) 2 All E.R., p. 84, Latey J. had this to say:-

"I entirely and respectfully agree with what Sir George Baker P. has said about the one-third calculation being a fair and useful starting point in proceedings in the magistrates’ court, as it is in proceedings in this division. It is to be remembered that it is only a starting point. It may, and often does, end up also as the finishing point. But in many cases it does not. Taking into account the various factors which are enumerated in Attwood v. Attwood and applying them to the particular facts of a particular case, both the facts and the results are likely to vary one from the other".

This case was overruled by the case of Rodewald v. Rodewald (1977) 2 W.L.R., 191, on the point that in calculating the joint incomes, i.e. that of the husband and the wife, the Court should take into consideration the gross incomes and not the gross income of the husband and the net income of the wife, but it did not overrule[*333] the other principles on the question of maintenance.

The question now arises on the basis of these principles what is the amount payable to the applicant on the evidence before the Court?

The wife is 47 years old, she is not working, she did not work before her marriage and she was not required to work during her marriage and she has no income at all except the sum of £14.- which her brother remits to her from England every month. I do not propose to take into consideration this amount because her brother is not legally bound to send this amount and he can cease sending this money at any moment.

The husband is an employee of CYTA and according to the monthly employees' pay-slip which he produced and it was marked Exhibit 3, he earns a gross amount of £263.440 mils out of which the sum of £33.024 mils represents earnings from overtime. After various deductions are made from his salary, he received a net amount of £126.922 mils. I would like only to comment on the sum of £73.250 mils which is deducted from his salary. This amount the respondent said goes to the repayment of a debt which he incurred since the Turkish invasion of Cyprus till the present day in order to supplement his income. I do not think that the respondent ought to have made this loan to supplement his income because his salary was sufficient for him to maintain himself when his wife and daughter were living with him. He said that this debt now amounts to over £2,000.- and he reached this figure gradually over the period which I[*334] mentioned before. In calculating the maintenance which I am going to award to the applicant, I do not propose to take into consideration this amount in favour of the respondent because the respondent may go on inurring debts unjustifiably so as to reduce the maintenance payable to his wife. According to his evidence he pays £22.- per month rent and as he is living with his mother, he requires another £50.- per month for food, and there is, therefore, a balance of another £50.- for his other expenses, Further, his mother is receiving £16.- per month old people’s pension from the Social Insurance and another £25.- per month rent from a house she hires.

On the basis of the principles I have just stated hereinabove and bearing in mind the evidence before me and all the circumstances of this case, I make a maintenance order for the wife for £50.- per month. The maintenance order will commence as from 1st June, 1977, the date on which the applicant was ready to proceed with her application and could finish in July 1977 but for the application for an adjournment on the part of the respondent. The application was filed on 1 .11.1976 but the applicant filed a supplementary affidavit on the 12th May, 1977, without which her application could not proceed.

In the circumstances, there will be a maintenance order for £50.- (fifty pounds) per month from 1.6.1977, until further order. Any money which the respondent paid to the applicant by way of a provisional order will be deducted.

Respondent to pay costs of this application. Costs to be assessed by the Registrar.

Maintenance order for £50.- per

month as from 1.6.1977. Costs to

be paid by Respondent.