Shamim v Dean [2001] FJHC 131; Hbd0006D.2000 (30 January 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)
FAMILY JURISDICTION

MISCELLANEOUS APPLICATION NO. HBD 6 of 2000

Between:

FAUNAAZ SHAMIM
(f/n Mohammed Shamim)
Applicant

and

MOHAMMED RIAZ UD DEAN
(f/n Sayed Mohammed Nizam Ud Dean)
Respondent

G. O’Driscoll for the Applicant

DECISION

This is an application by the wife for leave to present a petition for divorce within 3 years of her marriage. Under the provisions of Section 30 (3) of the Matrimonial Causes Act (Cap 51):

“the ... Court shall not grant leave ... to institute proceedings [for a decree of dissolution of marriage] except on the ground that to refuse to grant that leave would impose exceptional hardship on the applicant or that the case is one involving exceptional depravity on the part of the other party to the marriage”.

This application is brought ex parte pursuant to Rule 20 of the Matrimonial Causes (High Court) Rules (Cap 51 – Subs).

Mr. O’Driscoll accepts that there is no question of depravity here and that therefore the only question is whether the Applicant’s supporting affidavit discloses exceptional hardship.

As recently explained in Khan v. Shakeel (HBD 4/2000) the hardship advanced must be truly exceptional and not the type of hardship which is typically incidental to the breakdown of a marriage.

This marriage was obviously quite unhappy from the start. There have been allegations of violence on both sides. The husband applied to the Magistrates’ Court for a non molestation order. The parties who are Muslims have been living apart for some time and on 31 July 00 they were granted a talaaq or Muslim divorce.

In her affidavit the Petitioner says that she fears that the Respondent may assault her if she is not legally divorced but she offered no ground for holding this opinion, and with respect I do not follow her logic.

In discussion with Mr. O’Driscoll it emerged that the principal reason for wanting to commence proceedings for a civil divorce was the Applicant’s wish “to get on with her life”, a sensible wish with which one can readily sympathise.

As the law presently stands I am satisfied that the reasons advanced by the Applicant do not amount to exceptional hardship. For this reason the application fails and is dismissed.

M.D. Scott
Judge

30/1/01