Kumar v Kumar [2000] FJHC 43; Hba0024j.1999s (17 March 2000)

Fiji Islands - Kumar v Kumar - Pacific Law Materials

IN THE HIGH COURT OF FIJIn>

AT SUVA

APPELLATE JURISDICTION

CIVIL APPEAL NO: HBA 0024 OF 1999

BETWEEN:

RAFIA NAAZ KUMAR

Appellant

AND:

RAKESH KUMAR

: 1"> Respondent

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel: Mr S. Parshotam with Ms A. Neelta for Appellant

:No appearance for Respondent

Hearing: 13th March 2000

Judgment: 17th March 2000

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JUDGMENT

On 4th July 1999 the Appellant filed a petition for the dissolution of her marriage in the Suva Magistrates Court. The matter was set for formal proof on 18th August 1999. The Court was told that the Respondent did not object to the divorce or the custody of the one child of the marriage. The only issue was of maintenance.

The issue of maintenance was set for hearing on 15th September 1999. The Learned Magistrate then ordered as follows:

“Respondent to pay $10.00 interim maintenance for the child with effect from today.”

This appeal is from this decision to award $10.00 as interim maintenance. The grounds of appealas follows:

B. ;&nspp;&nssp; &nbbsp; &nsp;&nbsp Tha Worship erred ired in law in making the said award for interim maintenance when henot hny suions the ps on ssue of interim maintenance.”

The Petition seeks an order setting aside ther for interim maintenance, an order for a re-hearing on the issue of interim maintenance afce after hearing submissions from the parties, and costs.

At the hearing of this appeal, there was no appearance by o the Respondent. Counsel for the Appellant informed me that on 2nd December 1999, consent oent orders in the substantive maintenance matter had been made. The Respondent had agreed to pay $50.00 per week from 2nd December 1999 to 30th June 2000, to be increased to $75.00 thereafter. However counsel wished to pursue this appeal in respect of interim maintenance.

The court record is silent on the matters taken into account by the Learned Magistrate when he made rder for interim maintenance. Section 14 of the Maintenancenance and Affiliation Act Cap. 52 provides as follows:

“(1) Where on the hearing of an application for an order of maintenancch application is adjourned for any period exceeding 7 days days the court may order that the husband do pay to the wife or to the officer of the court or third person on her behalf, with effect from the date of service of the application a weekly sum not exceeding such an amount as might be ordered to be paid under a final order for the maintenance of the wife or any child or children in her custody until the final determination of the case.”

The operation of this provision was considered by the Fiji Court of Appeal in Ajit Narayan -v- Renuka Sharma [1978] 24 FLR 137. In that case the Respondent had sought interim maintenance from the Appellant in respect of their child. The Magistrate made an order for interim maintenance. The High Court, on appeal upheld the order. The Court of Appeal considered the nature of the hearing that should be held before an interim maintenance order is made. At page 140 the Court said:

“It is plain that, before making such an order a magistrate must have some material b him......... It is equallyually plain in our opinion ..... that the material is not necessarily evidence on oath.”

At page 141, the Court went on to say:

“To sum up, in our judgment a magistrate at the stage of an application for an interim order under sectioand for the purposes of sucf such order will give the parties an opportunity of being heard. The material which he may or should consider will vary according to the circumstances of the case but is not on this particular issue limited to evidence in the narrow sense of sworn evidence. Inter alia it may include facts agreed or admitted by the parties.”

In this case the Divorce Petition reads as follows, at paragraph 9:

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“I also seek maintenance for myself. I am presently employed by Carpenters Fiji Ltd. as an Asst Salaries Clerk and earn aarn a gross income of $10,000.00 per annum. The Respondent is a senior bank officer with ANZ Banking Group Ltd. and earns a gross income of approximately $25,000 per annum. He is in a position to meet an order for reasonable maintenance for the child and I.”

Having these assertions before him, what shoul Learned Magistrate have done? He should have asked counsel for the Petitioner, if he wishewished to make submissions on the quantum of interim maintenance. He should have considered the financial circumstances of the Petitioner and of the Respondent. He should have considered the age of the child, and the question of the necessary expenses in the maintenance of a child of that age. He should then have considered the effect of section 14(1) of the Maintenance and Affiliation Act which purports to set a ceiling on the weekly amount ordered.

The court record fails to show that counsel orrespondent, were given an opportunity to be heard on any of these matters. Nor does the rece record show that the court considered any of these matters.

The award of an interim maintenance order, is a judiciacretion, to be judicially exercised. All relevant matters must be taken into account beforeefore an order is made. Failure to do so results in an error of law. In this case it justifies the quashing of the decision to award interim maintenance.

I allow the appeal accordingly. I order the matter to be re-heard in the Magistrates Court.Respondent must pay the Appellant’s costs of this appeal whal which I set at $150.00.

Nazhat Shameem

JUDGE

At Suva

March 2000

Hba0024j.99s