Wakilii

Turner v Turner (Cause No. 29 of 1942)

East African Court of Appeal · [1943] EACA 76 · 1943 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for dissolution of marriage on the ground of desertion
Decision
Petition for dissolution of marriage dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the facts proved did not establish desertion. The petitioner and respondent continued to live together at the Avenue Hotel, occupying separate rooms but associating together, having meals together, and maintaining the appearance of a married couple. Mere refusal of sexual intercourse while parties continue to live under the same roof and discharge other marital duties does not constitute desertion. Desertion requires abandonment and living apart, not merely abstinence from sexual relations. The petition for dissolution of marriage was dismissed.

Outcome

Petition for dissolution of marriage dismissed

Facts

The petitioner filed a petition for dissolution of marriage on 29 October 1942, alleging desertion by his wife for at least three years under section 7(b) of the Matrimonial Causes Ordinance 1939. In 1938, the petitioner went to Tanganyika for business purposes and asked his wife to accompany him, which she refused. He returned in February 1939 and joined the respondent at the house where she had been staying. The parties then decided to live at the Avenue Hotel in Nairobi, occupying separate rooms but maintaining appearances for friends and family. They associated together, had meals together, and were seen together as husband and wife, but did not share a bed or have sexual intercourse. This arrangement continued until November 1941, when the respondent left the hotel following a discussion about the husband's insistence on his marital rights, meaning sexual intercourse.

Issues

  1. Whether the facts proved constituted desertion under section 7(b) of the Matrimonial Causes Ordinance 1939.
  2. Whether a wife's refusal to accompany her husband to Tanganyika in 1938 amounted to desertion.
  3. Whether parties living under the same roof and associating together but occupying separate rooms and not having sexual intercourse constitutes desertion.

Orders

  • Petition dismissed.

Rules and key headnotes

Family Law — Divorce — Desertion — Definition and Elements
Desertion in matrimonial law means abandonment and implies an active withdrawal from cohabitation that exists, including the abandonment by one spouse of the other or causing the other to live apart.
Family Law — Divorce — Desertion — Refusal of Sexual Intercourse
The mere refusal or abandonment of sexual intercourse while the parties continue to abide under the same roof and discharge other duties of the married state does not constitute desertion, as it is not abandonment and does not amount to living apart.
Family Law — Divorce — Cohabitation Distinguished from Sexual Intercourse
Sexual intercourse is not an essential ingredient of cohabitation or living together; parties may be cohabiting even if they occupy separate rooms and do not have sexual relations, provided they continue to live as one household and discharge other marital duties.
Family Law — Divorce — Desertion Under Same Roof
There may be desertion though the parties continue to live under the same roof, but in such cases the facts must be very strong and must show that one party really caused the other to live apart against their will, not merely to sleep apart.

Legislation cited (1)

  • Matrimonial Causes Ordinance 1939 s.7(b)

Cases cited (19)

  • Powell v Powell (1922) L.R. P. 278
  • Pulford v Pulford (1923) L.R. P. 18
  • Fitzgerald v Fitzgerald L.R. 1 P. & M. 694
  • Jackson v Jackson (1924) L.R. P. 19
  • Reg v Leresche (1891) 2 Q.B. 418
  • Synge v Synge (1900) L.R. P. 18
  • Forester v Forester (1790) 1 Hagg. Cons. 145
  • Diver v. Diver
  • Williams v Williams (1864) 3 S. & T. 547
  • Thompson v Thompson 164 E.R. 706
  • Kay v Kay (1904) P. 382
  • G v G (1930) L.R. P. 72
  • Germany v Germany (1938) L.R. P. 202
  • Spence v Spence (1939) 1 A.E.R. 52
  • Smith v Smith (1940) L.R. P. 49
  • Slawson v. Slawson Sol. Jo.
  • Mummery v Mummery (1940) 2 A.E.R. 424
  • Littlewood v. Littlewood, Weekly Notes 31-10-42 p. 188
  • Wilkes v. Wilkes (Law Journal 21-11-42 p. 370)

Full judgment

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Turner v Turner (Cause No. 29 of 1942) [1943] EACA 76 (1 January 1943)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.