Koh Teng Lam v Koh Chen Chee Elsie and Another

• Jurisdiction: Singapore
• Judgment Date: 26 November 1975
• Date: 26 November 1975
• Docket Number: Divorce Petition No 307 of 1974
• Court: High Court (Singapore)

Koh Teng Lam

Plaintiff

and

Koh Chen Chee Elsie and another

Defendant

[1975] SGHC 18

Choor Singh J

Divorce Petition No 307 of 1974

High Court

Family Law–Custody–Possibility of reconciliation between parties–Section 3 Guardianship of Infants Act (Cap 22, 1970 Rev Ed)–Family Law–Grounds for divorce–Behaviour–Cruelty and adultery–Section 84 Women's Charter (Cap 47, 1970 Rev Ed)–Evidence–Proof of evidence–Standard of proof–Grounds for divorce–Cruelty

The husband (“the petitioner”) sought the dissolution of his marriage on the grounds of cruelty and adultery by his wife (“the respondent”). The petitioner alleged that he had suffered great mental anguish and agony in his relationship with the respondent, such that in an incident some three years after their marriage, he had taken some sleeping pills and had to be sent to the hospital thereafter. As to the charge of adultery, the petitioner pleaded that the respondent had frequently committed adultery with unknown persons, as well as with the co-respondent. In the further and better particulars provided by him, the petitioner alleged as evidence of the adultery that the respondent had personally admitted that she had been locked in with the co-respondent in the co-respondent's storeroom, and that the respondent had been on contraceptive pills without the petitioner's knowledge and consent and had an intrauterine device inserted into her. Both parties sought custody of their son.

Held, dismissing the petition for divorce and granting custody to the respondent:

(1) One basic or fundamental factor on which rests the whole concept of legal cruelty is injury to the petitioner's health or apprehension of it. If there is no injury and no danger of it, there is no legal cruelty. The court interferes not to punish the respondent for the past but to protect the petitioner for the future: at [16] and [17].

(2) The burden was on the petitioner alleging cruelty and adultery to prove his case beyond reasonable doubt: at [18] and [35].

(3) The petitioner had consumed sleeping pills in an attempt to register his protest against the respondent's behaviour. It had nothing to do with the facts alleged to constitute cruelty. There was no evidence at all that the petitioner's health, physical or mental, had been injured by the conduct of the respondent or that there was a reasonable apprehension that it would be adversely affected. Moreover, any cruelty on the part of the respondent had in law been condoned by the petitioner, as he had cohabited with the respondent after the alleged incidents of cruelty. As such, the charge of cruelty failed: at [54], [56] and [57].

(4) The taking of contraceptive pills by the respondent as well as her insertion of an intrauterine device did not prove that she was committing adultery. Likewise, the fact that the respondent and co-respondent had been found together in a locked classroom provided solid ground for profound suspicion, but fell short of proof of adultery. The explanations provided by the respondent and co-respondent for their presence in the locked classroom were very convincing, and there was no evidence at all of any adulterous tendency or disposition on the part of either of them, nor of any undue familiarity. It followed that the charge of adultery failed: at [68], [78], [91]to [93] and [100].

(5) Several factors were considered in the award of custody of the child to the respondent. As a general rule, it was better for small children to be brought up by their mother. The respondent bore far less responsibility for the break-up of the marriage than the petitioner. Moreover, the granting of custody to the respondent would keep alive some hope of reconciliation between the parties: at [120] to [122].

(6) The petitioner was to pay the respondent $1,250 per month as maintenance for his child: at [129].

B (an infant), Re [1962] 1 WLR 550; [1962] 1 All ER 872 (folld)

Bastable v Bastable [1968] 1 WLR 1684; [1968] 3 All ER 701 (refd)

Bater v Bater [1951] P 35; [1950] 2 All ER 458 (refd)

Blyth v Blyth [1966] AC 643; [1966] 1 All ER 524 (refd)

Davies v Davies [1950] P 125; [1950] 1 All ER 40 (refd)

Evans v Evans (1790) 1 Hag Con 35; 161 ER 466 (refd)

F (an infant), Re [1969] 2 Ch 238; [1969] 2 All ER 766 (refd)

Ginesi v Ginesi [1948] P 179; [1948] 1 All ER 373 (folld)

Gollins v Gollins [1964] AC 644 (refd)

H and H and C [1969] 1 WLR 208; [1969] 1 All ER 262 (folld)

Jamieson v Jamieson [1952] AC 525 (refd)

King v King [1953] AC 124 (refd)

L (infant), Re [1962] 1 WLR 886; [1962] 3 All ER 1 (folld)

Milford v Milford (1866) LR 1 P&D 295 (refd)

Ng v Lim [1968-1970] SLR (R) 338; [1965-1968] SLR 339 (folld)

Preston-Jones v Preston-Jones [1951] AC 391 (refd)

Ross v Ross [1930] AC 1 (refd)

Russell v Russell [1897] AC 395 (folld)

Williams v Williams [1964] AC 698; [1963] 2 All ER 994 (refd)

Guardianship of Infants Act (Cap 22, 1970 Rev Ed)s 3 (consd)

Women's Charter (Cap 47,1970 Rev Ed)s 84 (consd);s 79

Guardianship of Infants Act1925 (c 45) (UK) s 1

Francis T Seow (Francis T Seow) for the petitioner

Tan Kok Quan (Lee & Lee) for the respondent.

Choor Singh J

1 This is a petition by a husband seeking the dissolution of his marriage on the grounds of his wife's cruelty and adultery.

2 Having regard to the arguments on points of law addressed to me in this case, it is I think desirable that I should first deal with the law and some of the considerations which may properly be borne in mind with reference thereto.

3 First, the law relating to cruelty. Section 84 (1) (c) of the Women's Charter (Cap 47, 1970 Rev Ed) provides that any husband may present a petition for divorce to the court praying that his marriage may be dissolved on the ground that his wife “has since the celebration of the said marriage treated the petitioner with cruelty …”. Although “desertion” is defined in the Women's Charter, there is no definition of “cruelty” and the court has therefore by virtue of the provisions of s 79 of the Women's Charter “to act and give relief on principles which in the opinion of the court are as nearly as may be, conformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial proceedings”.

4 In England the common law concept of cruelty is generally described as conduct of such a character as to have caused danger to life, limb, or health (bodily or mentally) or as to give rise to a reasonable apprehension of such danger. This was laid down in Russell v Russell [1897] AC 395. In that case, a wife made a false charge against her husband of having committed an unnatural criminal offence. She published it to the world and persisted in it after she did not believe in its truth. On the jury's findings, the trial judge granted the husband a decree of judicial separation on the ground of his wife's cruelty. The wife moved the Court of Appeal to set aside the decree. The learned judges of the Court of Appeal differed in opinion, on the concept of legal cruelty. Lopes and Lindley LJJ defined cruelty thus (at 399):

There must be danger to life, limb or health, bodily or mentally, or a reasonable apprehension of it.

5 They set aside the decree of judicial separation. The wife appealed to the House of Lords. The majority of the House approved the doctrine of danger enunciated by Lopes and Lindley LJJ and affirmed the decision of the Court of Appeal. Lord Herschell who delivered the leading judgment of the majority view, after a thorough examination of the older authorities, said, at 456:

Upon a review of the authorities prior to the time when the Divorce Act came into operation, I think it may confidently be asserted that in not a single case was a divorce on the ground of cruelty granted unless there had been bodily hurt or injury to health, or a reasonable apprehension of one or other of these. And it may with equal confidence be asserted that no other test was ever applied when it had to be determined whether a sentence of divorce on the ground of cruelty should be pronounced. I can find no case in which the impossibility that the duties of married life could be discharged was treated as the criterion.

6 Lord Herschell then proceeded to examine the authorities after 1858 and quoted with approval the following passage from the judgment of Lord Penzance in Milford v Milford (1866) LR 1 P&D 295 at 299:

The essential features of cruelty are familiar. There must be actual violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it. The court, as Lord Stowell once said, has never been driven off this ground; nor do the cases cited, whatever general expression may have fallen from the court, affect to decide that anything short of this will be sufficient to found a decree upon cruelty. The ground of the court's interference is the wife's safety, and the impossibility of her fulfilling the duties of matrimony in a state of dread.

7 Lord Herschell ended his speech with the following observations, at 460:

The opinion may be held by many … that relief should be always given where the prospect of happiness so long as the parties cohabited appeared hopeless. But these are considerations for the legislature and not for the courts. If divorce a mensa et thoro is to be extended beyond the limits within which it has hitherto been confined, the change must, in my opinion, be made by legislation. Our duty on the present occasion is to administer and not to make the law.

8 Lord Stowell's proposition inEvans v Evans (1790) 1 Hag Con 35 was approved by the House of Lords, and may be put thus: before the court can find a husband guilty of legal cruelty towards his wife, it is necessary to show that he has either inflicted bodily injury upon her, or has so conducted himself towards her as to render future cohabitation more or less dangerous to life, or limb, or mental or...