Chand v The State [1997] FJHC 122; Haa0039j.97b (28 August 1997)

Fiji Islands - Chand, P v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 39 OF 1997

BETWEEN:

PREM CHAND
s/o Ami Chand
Appellant

STATE
Respondent

Appellant in Person
Ms. A. Driu for Respondent

JUDGMENT

On 7 July 1997 the appellant was on his own plea convicted of the offence of assault occasioning actual bodily harm on his wife contrary to section 245 of the Penal Code and was sentenced to six months' imprisonment by Magistrate Moses Fernando Esq. at Magistrate's Court Labasa.

The appeal is against severity of sentence.

The appellant is 28 years old and has two children aged 3 years (daughter) and a son 5 years old. He told this Court that he has now reconciled with the complainant who is his wife.

As the learned Magistrate has stated when sentencing him, this was a very bad case of domestic violence. The injuries inflicted covered various parts of the body.

The wife wants the appellant to be released from prison and requests the Court to give him a suspended sentence of imprisonment. She says that she finds it very difficult to look after the children and that she is not even wanted at her brother's home. She said that if freed the husband will be able to harvest cane and earn some income to support them.

The learned State Counsel submitted that the fact of reconciliation at the time of sentencing was not before the learned Magistrate. She submits that if reconciliation is accepted the sentence could be varied by a long suspended sentence bearing in mind the extensive nature of the injuries inflicted on the wife.

I find this to be one of the worst types of domestic violence to come before the Court. The learned Magistrate has quite rightly imposed an immediate custodial sentence. This kind of behaviour will not be tolerated by the Courts. The appellant should realize that the fact that the complainant is his wife does not give him a licence to assault her and inflict injuries on her and then expect leniency from the Courts. He has to be given an appropriate sentence.

Recently the Honourable the Chief Justice had occasion to hear an appeal in the domestic violence case of DIVENDRA BIJAY v STATE (Crim. App. No. HAA0030J.97B). That was a case where reconciliation was effected but the learned Magistrate did not approach it the way he should have. Now that the fact of reconciliation is before this Court each case should be judged on its own facts and as the Chief Justice in DIVENDRA BIJAY (supra at p.6 to 7) said "each case must be assessed and evaluated in its true merits" and that "the best guidance, as always, is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle".

Now, putting on my 'hat' of a marriage officer, I must say that it is quite obvious that when the appellant assaulted his wife he had forgotten the marriage vows which he took when he went through the religious ceremony of marriage. The taking of sacred vows is called in Hindi PANI-GRAHANA and PRATIJYNA and this is done with the right hand of the bride clasped by that of the bridegroom. One of the vows is the "taking of the seven steps" called SAPTA-PADI towards the end of the marriage ceremony. With a knot tied between the clothing of the bride and the bridegroom to indicate fusion of two hearts and the union of two different families, the bride and bridegroom take seven steps symbolising entry into married life. As they take each step they invoke the blessing of God for: food and nourishment, strength, wealth, education and knowledge, children, health and love and friendship. Thus the bride and bridegroom are no longer two independent beings but one integrated personality united by firm resolve to supplement and complement each other in every aspect of life. For a successful marriage you two have to move together in the same direction like the wheels of a chariot. You cannot have the wheels going in different directions.

I think I have said enough to bring home the point for the benefit of the appellant and others minded to deviate from the right path.

The appellant has served about seven weeks of his sentence and now realizes how tough the Prison life is and now he wants his wife to come to his rescue by having him released. Seeing her own difficulties and the plight of the appellant on the one hand and those of the children on the other, she is a brave and forgiving woman willing to take him back with a warning from the Court that he should "live like a husband". Those sentiments are typical of an Indian woman. According to Hindu Religion women should be respected in society and a society which does not respect them is heading towards its downfall. I will tell the appellant a bit of history. It was Swami Dayanand Saraswati, the founder of Arya Samaj Organisation in India on 10 April 1875, who brought Indian women out of bondage when women were regarded as chattels and fit to be trampled upon. That is what you the appellant have done in this case. Swamiji gave equal right to women as men.

To conclude, I have digressed a little by not sticking strictly to legal principles but I feel that for you as an Indian some of these Indian customs and traditions should be followed and the society's norms and expectations cannot be ignored if there is to be peace and happiness in one's married life. What I have said above should have far-reaching influence on those who fall foul of the good and accepted practices in one's matrimonial life.

The following words of Chief Justice in MOSESE GAUNAVOU and STATE (Crim. App. No. HAA0011J.96B) are pertinent and I would apply them here:

"It is always a concern for the court to try and help any family experiencing domestic difficulties to resolve its problems as much as possible. It is for that reason that this court believes that it would be in the best interest of this family if the appellant, the man of the house in this case, is not kept away from his family for too long."

In the outcome, bearing in mind the fact of reconciliation and the wife's plea, I consider that the appellant has already served sufficient time in prison. He has paid for the folly of his ways and has as a consequence inflicted long enough punishment on his two infant children.

Bearing in mind the interests of the children and the need for the father to be with his family, I vary the sentence by setting it aside and substituting it with a sentence of 9 months' imprisonment suspended for 18 months. The appellant is explained his liability. He is now ordered to be released from Prison forthwith.

D. Pathik
Judge

At Labasa
28 August 1997

Haa0039j.97b