Bechu v Wati [1976] FJHC 1; Divorce Action 43 of 1975 (18 February 1976)

HIGH COURT OF FIJI
AT LAUTOKA

Divorce Action No. 43 of 1975

BETWEEN:

BECHU alias BECHU PRASAD s/o Shiu Narayan
Petitioner

AND:

SATYA WATI d/o Sarju Prasad
Respondent

Mr. C. Gordon, Counsel for the Petitioner.

JUDGMENT

This is a husband's petition for the restitution of conjugal rights.

The parties were married on 22nd January, 1973 and there are no children of the union. They cohabited normally until July 1973 and at the end of July the respondent left the petitioner and returned to her parents.

The respondent has entered no appearance and did not appear at the hearing.

In evidence, the petitioner said that he wanted his wife to return to him. He had written to her through his solicitor but she had ignored his request. He had been to her home but she had refused to return to him and her parents had supported her attitude.

The petitioner said that there was trouble between them because the respondent did not bother to cook lunch for him from time to time. But there was, he says, no trouble in regard to normal sexual relations. I asked the petitioner what he thought this Court could do by way of an order for restitution of conjugal rights. He replied asking if the Court could not settle the matter. Then he continued to say that he understood that if she disobeyed the order, provided one was made, he could then divorce her.

If divorce is the object which the petitioner seeks to attain then he already has grounds for divorce, according to his evidence, by way of desertion. Under s. 15(b} of the Matrimonial Causes Ordinance, No. 22/68, he has grounds for divorce if he has been deserted for 2 years or more by his wife. She left him at the end of July 1973 and by the end of July 1975 he had grounds for divorce. The petition for restitution of conjugal rights was filed on 1st August 1975, by which time grounds for divorce had arisen by way of two years’ desertion.

Prior to the recent legislation which has substantially reduced the period of desertion a petition for restitution of conjugal rights could, if successful, place the petitioner in a position to abridge the time he had to wait before filing a petition on the ground of desertion. By s. 15(k) failure to comply for a whole year with an order for restitution of conjugal rights is a ground for divorce. Had the petitioner filed this petition 6 months after his wife left him then if a decree were obtained within a further 6 months he would have grounds for divorce within a further 12 months, i.e. two years after the marriage which would be by January, 1975.

However, by S. 31 (1) the petition could not be filed within 3 years of the marriage i.e. before January, 1976, whether it is based on failure to obey an order for restitution of conjugal rights or on desertion for upwards of 2 years.

It is now 2½ years since the respondent withdrew from the petitioner and one is bound to wonder as to the efficacy of an order for restitution of conjugal rights in the circumstances. The respondent is not bound to obey any such order and her behaviour hitherto would suggest that she is not likely to do so. She has refused to heed the petitioner's requests and his solicitor's request in a letter, which is Ex. 2.

In Bromley's Family Law, 3rd edition page 165 it is pointed out that the number of cases where the petitioner sincerely desires restitution of conjugal rights is rare. The learned author points out that such a decree could abridge the term of 3 years (as it was at one time) desertion on which to base a petition for divorce. He says-

"Up till 1949 almost every petition brought by the wife had as its ultimate object her obtaining an order for maintenance, but since the Law Reform (Miscellaneous Provisions) Act 1949 the High Court has power to make such an order on the wife's application without her applying for any other matrimonial relief and the number of wife's petitions has dropped considerably."

If I made such an order and if the husband wished to use non-compliance therewith as a ground for divorce he would have waited twelve months from now. But, as I have said, he has already got grounds for divorce and could file a petition forthwith on the grounds of desertion.

A further problem which arises in these proceedings is the age of the respondent. She was 17 years and 3 months when she was married and was still under 18 years when she left the petitioner, and under 20 years when the petition was served. Under the matrimonial Causes (Supreme Court) Rules 1969 (L.N. 101 of 1969) there are special provisions for the service of infants in matrimonial proceedings. R. 68 (a) provides that an infant shall be served in the same way as an adult but R. 68 says that in addition a sealed copy of the petition and a notice of proceedings must be served on the parent of the infant or person with whom the infant is residing. In this case, the infant respondent resides with her parents and one of her parents should also have been served and this was not done. Failure to comply with this rule must, I feel, effect the validity of the service. If the petitioner wished to effect service on the respondent on the ground that she was old enough to act on her own initiative he could have applied ex parte to the Registrar under R. 68 (5) for an order under R. 68 (4) dispensing with compliance with these requirements.

A failure to comply fully with the requirements as to service would not be a justifiable reason for dismissing a petition. I therefore order that if the petitioner is still desirous of going ahead with these proceedings he should re-serve the respondent and the respondent's father if she is still living with her father within six weeks of the date hereof.

I have to pointed out to the petitioner that he does not have to petition for restitution of conjugal rights in order to obtain grounds on which to base a divorce petition. I have also pointed out to him that a decree for restitution of conjugal rights cannot be enforced and to contain with these proceedings may well amount to nothing more than an exercise in futility.

J.T. WILLIAMS
JUDGE

LAUTOKA
18^TH FEBRUARY 1976.