Estelitha Homer Appellant v David Homer Respondent [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeActing Chief Justice
Judgment Date22 May 1973
Neutral Citation[1973] ECSC J0522-1
Docket NumberMagisterial Criminal Appeal No. 1 of 1973
[1973] ECSC J0522-1

IN THE COURT OF APPEAL

Before:

The Honourable The Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louisy (Ag.)

Magisterial Criminal Appeal No. 1 of 1973

Between:
Estelitha Homer
Appellant
and
David Homer
Respondent

K. John for appellant

A. Williams for respondent

CECIL LEWIS, C.J. (Ag.)
1

This is an appeal from a decision of the Magistrate of the Second District dismissing the appellant's application for maintenance.

2

The appellant and the respondent are wife and husband. They were married in 1968, and lived together at a place called Farm. There are six children of the marriage living. On the first of June, 1971, the respondent left his wife and went to live with a woman called Chelita Pompey and when the wife's application was brought he was still living with this woman at Hopewell.

3

In August 1971 the wife went to an hospital where she had another baby. There her husband came to see her and met her already dressed about to leave the hospital. She went to live with her mother as she had nowhere else to go. She subsequently attempted to return to the house in which herself and husband originally lived but her husband told her if she did so he would either kill her or pay someone to kill her. He has not maintained her since he left her. She gave evidence that he works as a contractor and has a car which he lets out on hire. She asked the magistrate on that evidence to make an order that her husband pay a "reasonable" sum for her maintenance.

4

Section 3 of the Maintenance Ordinance No. 1/1949 states that it shall be the duty of every man to provide reasonable maintenance for his wife. Section 13 of this Ordinance sets out various grounds on which a maintenance order may be granted by the court and these include the case where a husband who is under a duty to maintain his wife willfully neglects or refuses to do so, and also the case where he has deserted her. The wife's complaint was based on both of these grounds which the magistrate found established, but she dismissed the wife's application because in her opinion no evidence was adduced to show that the husband was possessed of sufficient means to provide reasonable maintenance for his wife. I shall return to this later. I must however comment on the magistrate's findings as regards desertion. She said she found the respondent guilty of constructive desertion but the circumstances of this case do not reveal any...

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