Raj v Prasad [2000] FJHC 124; Hba0031d.1999s (23 November 2000)

Fiji Islands - Raj v Prasad - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

MATRIMONIAL APPEAL NO.HBA0031 OF 1999

Between:

ANIL Rpan>

f/n Man Raj

Appellant

- and -

SHOBNAAD

f/n Jai Prasad

Respondent

Mr. E. Veretawatini for Petitioner

MrGB>Mr. A. Singh for Respondent

REASONS FOR DECISIOan>

On 10th April 2000 after hearing extensive argument from both Counsel for the appellant and for the respondent in reply, this Court dismissed this appeal as being ‘wholly meritorious’. On that occasion the Court reserved the reasons for its decision which it now publishes.

This was an appeal against a decision of the Nausori Magistrates’ Court refusing the Appellant’s petition for a dissolution of marriage based on the respondent’s alleged desertion of the appellant. I say ‘alleged’ advisably because the learned trial magistrate in the course of his judgment wrote (at pp.43 of the record):

‘Weighing both evidence on the balance of probabilities

ass=MsoNormal style="text-aext-align: justify; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> this Court is of the view that the respondent during her

entire marriage with the petitioner, was living in a snake’s

pit, without mercy both from her husband, i.e. the petitioner

and his family.’

and later at p.44 his Worship said:

‘There is ficient evidence to find the respondent blameworthy,

for deserting the petitioner, other than constructive desertion

on her part, if she wishes to file her petition for divorce against

her husband she may do so at anytime.’

Quite plainly the learned trial magistrate in arriving at his decision preferred the evidence of the respondent to that of the petitioner and his witness. Such a preference based as it is on the trial magistrate’s assessment of the relative credibility of the appellant and the respondent ought not to be lightly over-turned by an appellate Court except for convincing and compelling reasons. (see: Chandrika Mishra v. Goberdhan 18 F.L.R. 116).

At the hearing of the appeal counsel for the appellant highlighted various passages in the apnt’s evidence (at pp.30 p.30 and 31 of the record) which indicated firstly, that the respondent had wilfully refused to return home after her short confinement in hospital and then, after the Social Welfare Officers had intervened to reconcile them and she had agreed to return home. All of this was noted in the learned trial magistrate’s judgment and it must be said that he was aware of the same.

The learned trial magistrate also carefully detailed the respondent’s evidence in his judgment (at pp.41 to 43) in which she instanced several incidents which were indicative of the life she had been living with the appellant and her in laws before she went to hospital, and from where she returned to her parent’s home. Notable by its absence from the record, are any notes of the respondent being cross-examined on her evidence by the appellant albeit that his counsel was temporarily absent during the respondent’s evidence.

Be that as it may therebe no doubting that the learned trial magistrate, in the absence of a formal answer to the the petition, was left to consider the case on the basis of the evidence led before him while bearing in mind that the appellant, as the petitioner, bore the burden of establishing the proffered ground for dissolution.

In that regard it was common ground that the parties were physically separated for the required length of time 2 years) and all that rema remained was for the appellant/petitioner to establish an intention to desert on the part of the respondent in causing their separation. That he plainly failed to do to the reasonable satisfaction of the trial magistrate and, given the absence of any cross-examination of the respondent, by the appellant, this Court is reluctant to differ with the trial magistrate’s assessment although no specific findings were made in that regard as they should have been.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In this latter regard and for future guidance I would draw attn to the carefully

researched judgment of Mills-Owen CJ in Dhiraj Lal v. Savitri Ben 12 F.L.R. 47. Furthermore Section 15 of the Matrimonial Causes Act (cap.51) makes it patently clear that it is the ‘spouse’s conduct and not anyone else’s conduct ( such as in-laws) that can support a finding ‘constructive desertion’. Equally such conduct of the spouse may be either active or passive in circumstances that called for action.

In the final analysis after hearing counselas not at all satisfied that this was a case where I could properly differ from the learnedarned trial magistrate’s preference and the appeal against the dismissal of the appellant’s petition was accordingly refused.

The appellant’s second and third grounds of appeal challenges the trial magies order at the end of his judgment wherein he said (at p.4t p.44):

‘The Petitioner is hereby ordered to pay $20 per week for his maintenantil the child attains the the age of 18 years or this order is vary (sic) by the Court.’’

This particular challenge is two fold beinfirstly, on the basis that no application had been made for maintenance; and secondecondly, for want of jurisdiction or power to order maintenance on a dismissed petition.

In this regard there is not the slightest doubt that the custody (and therefore maintenance) of the ‘chi the marriage’ was was a matter plainly before the learned trial magistrate at the hearing of the proceedings and properly dealt with by him.

Firstly, Prayer 3 of the appellant’s petition sought an award of custody of the ‘child of the marriage’ to the respondent with reasonable access to the appellant; secondly, the respondent had previously unsuccessfully sought a maintenance order after the birth of the child; and thirdly, the respondent in her evidence had testified that ‘to date the petitioner did not maintain the child at least’.

Significantly, the petitioner did not mention or offer any maintenance, either in his petition or in his evidence, for the child which he had plainly acknowledged was a ‘child out of the marriage’.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Be that as it may, Section ) of the Matrimonial Causes Act relevantly provides (inter alia):

‘In proceedings in which application has been math respect to the custody ....... welfare ........ of childchildren of a marriage -

(a) & p; &bsp; Tue Cohat shall regl regard the interest of thedren

as the paramount consideration; and

(b) &nnsp;&&nsp;;&nspp;&nssp;&nsp; subjo patagrapagraph (a) the Court may make such

order in respect ose ms as it thinks prks proper.oper.”

Then Section 87 (1) expressly empowers the Court, in exercising its powers under Part XIII of the Matrimonial Causes Act in which Section 86 occurs to, amongst other things;

‘(a) & ordat adat a ............ weekly ..ly ......... or other periodic sum be paid;’

&nbB>

Plainly the learned trial magistrate had the necessary power to make a maintenance order, an appeal on this ground must must also be dismissed.

For the above reasons the appeal was dismissed with Costs summarily assessed at $150 ordered against the apnt to be paid within 14 day4 days.

D.V. Fatiaki

JUDGE

At Suva,

23^rd November, 2000

HBA0031D.99S