1984 March 24 [PIKIS. J.] MARINA CRIS ANTHIMOS TOOLEY. Petitt'onei v. CRIS ANTHIMOS TOOLEY. Respondent (Matrimonial Petition No. 24/82! Matrimonial Causes—Jurisdiction—Wife resident in Cyprus through out her life—Court rested withjurisdiction ίο entertain her pet, tion for divorce—Section 18( !)(/>) of the English Matrimonii Causes Act.
- 5 10 15 20 25 Constitutional Law—Marriage—Article 111 oj the ConstitutionConfined tc cases where both parties are not only members t, the Greek-Orthodox Church but domiciled in Cyprus as wel. Matrimonial Causes—Divorce—Cruelty—Legal cruelty—Mcant'ngWhereconductis of its character cruel,as seriousacts of violentare. the Court may infer at least reasonable apprehension <: dangerto thelife, limb or healthof the victim—Husbandhabitual! assaulting wife with his jists, occasionally kicking her at seven parts of her body and locking her up in a room—Her traumati experience such that she refused sexual intercourse—Husban gudty of acts of cruelty—Decree nisi granted. The parties to this petition got married before a Regisu Office in England in
- The petitioner was a Greek Cyprh 1 born and raised in Cyprus. The respondent was a Britishsu ject resident and domiciled in the United Kingdom, born ο Greek Cypriot parents and was born and grew up in England Both parlies adhered to the Greek Orthodox faith. Upon a petition by the wife for divorce on the grounds ο cruelty there was uncontradicted evidence that the conduc of the husband towardsher was from ihc beginningbrutal an< progressively grew worse; that he was habitually assaultinghe with his fists and occasionallykicking her at several parts ofth 279 Tooky v. Tooley
(1984)body;thatviolencewasassociatedwithotheractsofill-treatment that made cohabitation with the respondent impossible; lhat when in England he frequently locked her up in a room while he went out and amused himself with friends, often reTurning home drunk; and that such was her traumatic experience in 5 the hands of her husband that she refused sexual intercourse notwithstandingthefactthatsuchintercoursetook placebetween them before marriage. Held, (I) that since the petitioner has been a resident in this country throughout herlifeshesatisfiestheprerequisites for the 10 assumption ofjurisdiction, laid down by section 18(l)(b) of the English Matrimonial CausesAct, 1950whichconferredjurisdiction on the Court to take cognizance of a matrimonial matter if the wife was a resident of this country and had been ordinarily resident in Cyprus for a period of three years immediately pre- 15 ceding the commencement of the proceedings; accordingly the Court possesses jurisdiction to entertain the petition.
(2)That the application of theprovisions of Article 111.1 is confined tocaseswherebothpartiesarenot only membersofthe Greek Orthodox Church but domiciled in Cyprus as well; and 20 that since respondent is not domiciled in Cyprus the marriage is valid.
(3)Thatlegalcrueltyisconduct ofsuchacharacter astohave caused danger to life, limb or health (bodily or mental) or asto give rise to a reasonable apprehension of such danger; that 25 whereconduct isof iischaracter cruel asseriousacts ofviolence are, the Court may infer at least reasonable apprehension of dangertothe life, limbor health ofthevictim; that on areview of the uncontested evidence the inescapable inference isthat the respondent was guilty of acts of cruelty; accordingly a decree 30 nisi of dissolution will be granted. Decree nisigranted. Cases referred to: Krzentz v. Krzentz
(1971)I C.L.R. 168; Papasavva v. Johnstone
(1984)I C.L.R. 38: 35 Hadjijovanni v. Hadjijovanni
(1969)1 C.L.R. 207; Bastadjian v. Bastadjian.1962 C.L.R. 308; Morphi r, Mashini
(1981)1 C.L.R. 253; Jabbour r. Jabbour
(1981)I C.L.R.
- 280 1 CX.R. 5 Tooley τ. Tooley Matrimonial Petition. Petition by the wife for the dissolution of the marriage on grounds of cruelty. St. Stylianou, for the petitioner. Ζ. M. Joannou,for the respondent. Cur. adv. vult. PIKIS J. read the following judgment. Marina Chris Tooley is a Greek Cypriot born and raised in Cyprus. Anthimos Tooley is a British subject born of Greek Cypriot parents who 10 was born andgrew upin England,a resident of the-United King dom. Both adhere to the-Greek Orthodox,faith. They met during a trip of Anthimos to Cyprus,in
- After a brief love-affair they decided-to marry. They went'to England wherethey got married a-week later before a-Register Office, on 9th 15 June
- The marital venture was short-lived-and ill-fated. Within about ten days they returned to Cyprus apparently in the hope of striking a happier relationship. All in vain for not only their relations failed to improve but worsened consider ably. 20 25 Γη' about a month's time-cohabitation ended in acrimony. The husband left what was, be it temporarily their matrimonial home. On their arrival they set up residence at Cris' parental home. When, the husband,left it was the last his wife saw of him. Eversince relations between them were severed. Marina petitioned the Court for a decree, of dissolution of the marriage on grounds of cruelty. She-alleged in her petition and-testified-before me, the conduct of the-husband towards her was. from the-beginning brutal and progressively 30 grew worse. He-was habitually assaulting her- with his fists and-occasionally kicking her.at several parts of the body. Vio lence was associated-with other acts of ill-treatment that made; in her contention,cohabitationwiththe respondent impossible. When in England he frequently locked.her up in a-room while35 he went out and-amused.himself with friends, often returning home-drunk. Such was her traumaticexperience in thehands of her husbandthat she refused sexual intercourse notwithstanding the fact that such intercourse took place between them before marriage. 281 Pikis J. Tooley \. Tooley
(1984)In his defence the respondent refuted the charges of cruelty. In his allegation he was himself the victim of cruelty resulting from fits of jealousy of the petitioner. He admitted theTe was no sexual intercourse between them after marriage implying, if one reads his defence as a whole, that fault laid with the 5 petitioner. At the trial he withdrew his defence. Counsel stated on his behalf he does not oppose the petition. Neither the evidence of thepetitioner nor that ofher father directed towards establishing cruelty, was challenged in cross-exarnination. Another development that has taken place since the institution of the proceedingsisthat respondent left Cyprusand moved back tothe United Kingdom where he presently resides. 10 Thefollowing questions must beanswered inorder to determine the petition; (a) theexistence ofjurisdiction to entertain the 15 proceedings inview of thefact thatrespondent isa domiciliary of the United Kingdom; (b) the validity of the marriage in view of the provisions of Article 111.1 of the Constitution and in the event of holding that the Court is possessed ofjurisdiction and the marriage is a valid one; (c) adequacy of the evidence to 20 sustain charges of cruelty. Thejurisdiction of the Supreme Court in matrimonial matters is governed and regulated by sections 19(b) and 29
(2)(
- b)of the Courts of Justice Law. The Law applicable isthe Law that was in force on the day preceding independence in relation to ma- 25 trimomal causes. One such Law was section 18(l)(
- b)of the English Matrimonial CausesAct, 1950that conferred jurisdiction on the Court to take cognizance of a matrimonial matter if the wife was a resident of the country and had been ordinarily resident in Cyprus for a period of threeyears immediately preced- 30 ing the commencement of the proceedings. (See Ellada Krikor Krzentz v.Krikor Krzentz
(1971)1C.L.R. 168). The petitioner inthiscasesatisfies theaforesaid prerequisitesfor the assumption of jurisdiction having been a resident of the country throughout her life. Hence the Court possessesjurisdiction to entertain the 35 petition. The validity of the marriage depends on the applicability of the provisions of Article 111.1 to the marriage under consideration. That both parties are members of the Greek Orthodox 282 1 C.L.R. Tooley \ . Tdolcy I'tkis .1. Church isnot, in myview, conclusive. Recently I had occasion to examine the applicability of the provisions of Article 111 to civil marriages contracted abroad between members of the Greek Orthodox Church where one of the parties was not do5 miciled in Cyprus. I decided the application of the provisions of Article 111.1 is confined to cases where both parties are not only members of the Greek Orthodox Church but domiciled in Cypius as well. Any other construction would offend the rule of Private International Law that lays down that the laws of the "JO country of domicile define personal status. Also, it could lead to some strange results that could not have been intended by the makers of the Constitution, such as nullification of marriages contracted indistant parts of theworld between a Greek Cypriot member of the Orthodox Church of Cyprus and a Greek Ortho15 dox domiciled on that part of the world. (See Papasawa v. Johnstone- Matrimonial Petition 20/83, decided on 23rd January 1984, not yet reported*- see also Hadjijovanni v. Hadjijovanni
(1969)I C.L.R. 207). In myjudgment the marriage of the parties was valid and for 20 the reasons earlier given the petition iscognizable by this Court. There remains to decide whether allegations of cruelty wcic substantiated by the uncontradicted evidence of the petitioner and her father. The legal definition of cruelty was debated by Vassiliades, J.. 25 as he then was, in Angeliki Bastadjian then Angeliki Riyou v. Krikor Bastadjian, 1962 C.L.R. 308. From the authorities it appears that a variety of acts may constitute cruelty in the context of Matrimonial Law. The definition of legal cruelty supplied by Rayden on Divorce is apt to embrace most acts that 30 give rise to cruelty in Law "legal cruelty may be defined as conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger." 5th Edition p. 80**. Where conduct is of its character cruel as serious acts of violence are the 35 Court may infer at least reasonable apprehension of danger to the life, limb or health of the victim. Following the quotation of legal cruelty in Rayden above, the author gives examples of conduct that evidently amounts to cruelty in Law. Such con* Now reported in
(1984)1 C.L.R. 38. ·* Referred to by Vassiliades J „ with approval in Bastadjian supra. 283 PikK J. Tuoley v. Tooley
(1984)duct includessevereassaults, kickingatvariouspart;of the body and striking at sensitive parts of the body. The learned Judge in Bastadjianabove, expressed the opinion that even isolated act of physical violence may support a petition founded on cruelty if suchinference isjustified in the light of the 5 matrimonial history of the parties. By way of reference to examples of legal cruelty, one may usefully refer to two decisions of A. Loizou, J., in Morphi v. Mashhti
(1981)1C.L.R. 253 and Jahbour v. Jabbour
(1981)I C.L.R. 315. On a review of the uncontested evidence before me the ine- It) scapable inference isthat respondent wasguilty of acts of cruelty in the sense explained. The petitioner was not only the victim of serious assaults in the hands of the respondent, but life was made impossible in view of his tendency to isolate her in her misery as well. The evidence of her father tends to support her 15 allegations of cruelly. Her disinclination in consequence of his conduct to have sexual inte.course with him is but an indication of her mental strain and suffering. And alt this at the outset of the marriage when she could look with confidence to a relationship of love and affection. 1 find thepetition proven. A decree 20 nisi of dissolution of marriage is granted. Order accordingly. Decree nisi granted. 284