Safikh v Ali [2005] FJHC 297; HBM0033.2005 (22 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBM0033 OF 2005

BETWEEN:

MOHAMMED SHAHEED SAFIKH
son of Mohammed Safikh of Waimari, Rakiraki, Fiji, Labourer.
APPLICANT/PETITIONER

AND:

YASHMIN BI ALI
daughter of Ashik Ali of Vomo Street, Lautoka, Fiji,
Engaged in Domestic Duties.
RESPONDENT

Mr M. Naivalu o/i Mr D. Kumar for the Petitioner
No appearance for the Defendant

Date of Hearing: 28 October 2005
Date of Ruling: 22 November 2005

RULING OF FINNINGAN J

The issue here is what amounts to cruelty for the purposes of Section 14 (d) of the Matrimonial Causes Act Cap 51.

On 26 September 2005 the Petitioner filed by ex parte a motion application for leave to issue a petition for dissolution of her marriage within three years after the date of her marriage to the Respondent. I issued a Minute stating that the grounds disclosed in the intended petition do not amount in my view to cruelty. I invited Counsel to file a submission showing legal authority for holding that the facts as shown amount to cruelty. A submission has now been filed and with it a Supplementary Affidavit.

Preliminary findings of fact from the affidavits are that the parties married on 25 September 2003. They held a customary religious ceremony on 10 January 2004. Thereafter they lived together until 13 August 2005 when the Respondent left the Petitioner who since that time has been living with her parents. Both parties live in Fiji.

The Petitioner sets out specifically eight grounds upon which she relies to establish that “the Respondent has habitually been guilty of persistent cruelty to the Petitioner”. These grounds are as follows:

(a) That the Respondent throughout the marriage constantly, insulted and quarrelled with me for no apparent reason thereby causing much mental anguish to me;

(b) That the Respondent always had arguments and quarrelled with the Petitioner over petty matters. She abused and insulted the Petitioner in presence of his family, friends and other relatives. This caused much embarrassment and distress to the Petitioner;

(c) That the behaviour displayed by the Respondent has caused serious effect on the Petitioners health and mentally disturbed him from time to time;

(d) The Respondent would not talk to the Petitioner for days and at times for weeks for no apparent reason;

(e) That the Respondent refused to cook food for Petitioner. The Petitioner washed his own clothes;

(f) That the Respondent refused to have regular sex with the Petitioner;

(g) That on the 13^th day of August, 2005 the Respondent without any just cause deserted the Petitioner and moved away from the Matrimonial home. She now leaves with her parents in Lautoka;

(h) That there is no likelihood of any reconciliation between the parties.

The Supplementary Affidavit sets out the details of those allegations. Assuming acceptance of all claims of fact, this is a classic unhappy marriage, for which some causes are perceptible. There are disagreements and dissatisfaction and apparent desertion by the Respondent. There has been effort made by the Petitioner to save the marriage.

A written submission has been filed on the Petitioner’s behalf. It traverses the facts. Counsel concludes by noting that (in his opinion) “the wife has now made her final decision not to return to the husband. There is therefore no point trying to drag this marriage any further. We therefore submit that the best option for this young couple is to get divorced, chose a new partner of their own choice, remarry and settle down”.

Conclusion:

That might be so but it is not a decision for me to make. The Petitioner seeks leave to have the marriage dissolved within three years. Under Section 30 of Cap 51 he needs the leave of the Court. Subsection 3 is as follows;

(3) The High Court shall not grant leave under this section to institute proceedings 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.

Counsel does not appear to have considered this. The word “exceptional” appears twice in that provision and it has a clear meaning in statutory interpretation. There are no exceptional circumstances here. Neither in my view is there any evidence of cruelty.

The grounds in this are not exceptional. The Petitioner must wait until time establishes proper grounds. The marriage itself may revive in that time. That is the reason for the law’s delay.

This application for leave is refused. I made no order for costs.

Counsel should consult the new Matrimonial Legislation. The Petitioner might make progress more quickly if this application is withdrawn and a new application is made under the Family Law Act 2003. It came into effect on 1 November 2005.

D.D. Finnigan
JUDGE

At Lautoka
22 November 2005