Under section 15(2)(c) of the Matrimonial Causes Act, 1990 which gamuts other illustrations of behaviour which are listed in section 16(1) puts as a ground. “Inordinate sexual relationship with woman of questionable character”.
The issue here makes us to believe that the law lays much and particular emphasis on the ‘man’ and attempts to exonerate the ‘woman’ when the provision reads “sexual relationship with woman of questionable character.” It is suggested that since what will constitute a ground of divorce could be an act of any of the spouses or parties, the provision should read “inordinate sexual relationship with women or men of questionable character”. Again, having suggested that, the next issue seems also to be whether the law permits “inordinate sexual relationship with woman of ‘unquestionable’ character”. We have seen adultery as a ground for divorce, for the same statute to later in yet another provision modify adultery by the use of “woman of questionable character” seems pretentious. Is it the intention of the law maker to define adultery to mean sexual relationship with women of questionable character simpliciter? And who is a woman of questionable character in law? What is the mischief that the law here intends to suppress?
These are the questions that seem paramount and which need urgent attention in the Act.
Next in the illustration is “use of insulting and annoying words on the petitioner and his family.” It is further suggested that marriage being a union of a man and woman in the context of the statute, of different background should also be seen as a union founded on tolerance. For one to commence a proceedings of divorce on the fact of such insult and annoying words seems to be waiving away the expected tolerance, endurance and of course perseverance attendant to marriage in real sense. Again, rather than ordinary “use of insulting and annoying words…” it is submitted that to lead to divorce, it should be “persistent or concomitant” use of insulting and annoying words…” This is because as Obaseki J.S.C. had rightly put it “man is not infallible.” There could be times in the life of the spouses that misunderstanding or succinctly put, rift might occur and if in the heat of passion, a spouse uses insulting or annoying words on the other or his family, it should not strictu sensu result in a divorce proceeding.
Thirdly, “practice of black charms, juju and talisman in the matrimonial home” seems to me absurd as a ground or illustration of the language of section 15(2)(c).
Owing to our African premise one cannot but agree that the above practice is common even in the face of this present day civilization. It is an accepted practice of the people. It follows therefore that a spouse who knew that the other spouse practices such and contracted marriage infact with such a spouse should not be seen complaining. The situation should apply differently however, to a spouse who had no prior knowledge of such practice.
Fourthly, it is equally submitted that mere “refusal of sexual intercourse with the petitioner” should not warrant divorce. It is suggested or recommended that the sentences should read: “unreasonable refusal of normal sexual intercourse with the petitioner.” It should be noted that refusal of sexual intercourse is possible where the spouse refusing has reasonable grounds for refusing. Also it is submitted that if the demand for sex by one spouse becomes inordinate the other spouse has the right to refuse.
Lastly, it is my further submission that “Gambling” as held in COLE VS. COLE should not alone constitute a reason for divorce as Gambling has gradually become a game and infact an occupation in our country. The decision in COLE VS. COLE was held in far back 1976 during which time the abhorrence against gambling was at its peak. Today over three decades after the decision, gambling has become a tradition among many Nigerians. It should not be seen as was seen many decades ago.
In conclusion, however, we have seen in this discourse from the word ‘go’ that divorce is an ugly phenomenon and infact does not tell well of the spouses involved. It should be avoided. It therefore follows that marriage should never be rushed into for whatever reason. This is because from available statistics, majority of those who found themselves on these different divide are couples who rushed into this institution of marriage without proper considerations.
Again, if for any reason spouses are embroiled in divorce, reconciliation should be enhanced. The law itself allows such reconciliation. Couples are also advised to persevere in their marriages. Not every fallibility of a spouse should inform divorce.
Most importantly couples are advised to be more faithful to each other because infidelity is the hallmark of so many divorce cases in Nigeria today. Apart from our statute books that seem to lay more emphasis on mere legality, it is submitted that marriage is also a divine institution. Though marriage was defined by Lord Penzance in HYDE VS. HYDE as… the Voluntary Union FOR LIFE of one man and one woman to the exclusion of all others’, the law itself seems to throw away with the waive of the hand the word “FOR LIFE” in the definition with the provisions that allow divorce, on the divine side of the divide that “FOR LIFE is not detachable from the definition. It is an essential part of it that cannot easily be whittled away. No wonder priests solemnizing marriage would say “… for better, for worse, for richer, for poorer, till death do us part…”
Even though it is not easy to avoid divorce in all marriages, it should be the last excuse and last resort.
However, it is pertinent to note that these cumbersome and stringent provisions in the statute books have helped in no small measure to ease the tension of pervading divorce rates in the country. This accounts for why there is dearth of recent judicial authorities on divorce perse. Prior to this time men would divorce their wives at their own whims and caprices, and this was actually injurious to womanhood. Spouses who feel divorce is the first aid or antidote for the slightest drift in marriage should remember the hullabaloo, disparage, ridicule, contempt, hatred and infact odiom that both themselves and children will be exposed to in the society, and the hazards their children will still face by being grown by a single parent. Divorce for whatever reason is absolutely a curse rather than a blessing.
Barr. Gideon Kpoobari Girigiri
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