Munni ats. Singh [1936] FJLawRp 3; [1875-1946] 3 FLR 189 (23 April 1936)

SUPREME COURT OF FIJI

Appellate Jurisdiction

RAM MUNNI

ats

RAM SINGH

Thacker, C. J.

April 23, 1936

Marriage Ordinance 1918^[1] s. 45 — unlawfully harbouring — Meaning of unlawful harbouring — Onus of proof.

A case stated by the Chief Police Magistrate on dismissal of a charge of "unlawful harbouring" was as follows:—

"Upon the hearing of the said charge the following facts were proved before me:—

(i) That the appellant was lawfully married at Suva to Vedkumar on the 12th day of October, 1935, a certified copy of the marriage certificate having been produced before me which is attached herewith.

(ii) That the appellant and his wife Vedkumar lived together from the date of their marriage till the 14th January, 1936.

(iii) That during this period the appellant maintained his wife according to his means and did not give her any cause to leave him.

(iv) That on the morning of Tuesday, the 14th day of January, 1936, at about 9 30 a.m. the appellant allowed his wife to go and stay at the house of the respondent situate in Bridge Street, Suva, for a day or two, and in fact himself took her to the doorstep of the respondent's house.

(v) That on the morning of Thursday, the 16th January, 1936, at about 9.30 a.m. the appellant went to the said house of the respondent, in the absence of the respondent, to fetch his wife back but the latter refused to return to and live with him.

(vi) That on Tuesday, the 21st day of January, 1936, Sergeant-Major Indar Singh of the Fiji Constabulary was deputed to execute a warrant issued under s. 14 of Ordinance 2 of 1889 at the instance of the appellant authorising him the said Sergeant-Major Indar Singh to search for Vedkumar at the house of the respondent in Bridge Street and produce her before me.

(vii) That the said Sergeant-Major Indar Singh before he proceeded to search at the said house of the respondent went to the business premises of the respondent where he saw the respondent and explained to him the nature of the search-warrant and that he was going to his house to search for Vedkumar. The respondent told him to take the girl away.

(viii) That on Tuesday the 21st day of January, 1936, the said Sergeant-Major Indar Singh went to the house of the respondent at Bridge Street and having found Vedkumar therein he brought her before my court from where she went back to the respondent. On the part of the respondent it was contended that there was no case to answer and the respondent did not elect to lead any evidence. The fact that the woman Vedkumar did stay at the house of the respondent was not denied but his counsel, Mr. Crompton, K.C., argued that there was no unlawful harbouring within the meaning of s. 45 of the Marriage Ordinance No. 2 of 1918. He argued that the wise Vedkumar was at liberty to live apart from her husband and unless the prosecution proved that the wife was influenced by the respondent to leave her husband so that her will was overborne by the stronger will of the respondent, which in this case had not been done, it must fail. He further argued that there was no evidence to show that the wife had left the appellant without just cause. He read extracts from an unreported case of the Supreme Court of Fiji decided by Chief Justice Young in 1925 and submitted that the present case fell within the purview of the said case. On the part of the appellant it was contended that the prosecution had amply made out its case. Mr. Hasan, on behalf of the appellant, argued that if the wife was staying away from her husband without his consent and a third party harboured or sheltered her under those circumstances, he will be harbouring her unlawfully within the meaning of s. 45 of the Marriage Ordinance No. 2 of 1918. He pointed out that from and after the 16th January, 1936, when the wife, who was allowed by the appellant to stay at respondent's house temporarily, refused to return to live with the appellant, her staying away was unlawful. He admitted that a wife could live apart from her husband but a third party had no right to harbour her if she was so living without her husband's consent. He did not agree that it was necessary for the prosecution to prove that the wife had been influenced in any way by the third party to leave her husband. He further argued that the prosecution had led evidence to show that the wife left the appellant without any just cause, and that that evidence stood unchallenged. The defence ought to have led evidence in rebuttal to prove that there was just cause for the wife to leave the appellant and this the defence had failed to do. He drew my attention to paragraph 957 of the Laws of Halsbury (new edition), p, 611.

My attention was called to the reported cases hereinafter set out:—

On behalf of the respondent:—

Sanderson v. Hudson, [1923], Times, January 29.

The Queen v. Jackson, [1891], I QB 671.

On behalf of the appellant:—

Griffiths v. Teetgen, English Reports Vol. 139, P. 456.

"OPINION.

I formed the opinion that although the girl Vedkumar did remain at the house of the respondent Ram Singh, without her husband's consent, there was no proof of unlawful harbouring within the meaning of s. 45 of the Marriage Ordinance No. 2 of 1918, inasmuch as there was no evidence that the respondent had in any way influenced the girl Vedkumar to leave her husband, or to remain away. The respondent had been the girl's guardian and had maintained her since infancy and she is his wife's sister. Her father is dead. I accordingly dismissed the charge. I was influenced also by the judgment of His Honour Chief Justice Young referred to by the respondent's counsel and by the fact that the girl is 15 years and 9 months of age, and she eloped with her present husband and that she refused to return to him. The question upon which the opinion of the said Court is desired is whether I, the said District Commissioner, upon the above statement of facts came to a correct determination and decision in point of law, and if not, what should be done in the premises."

HELD.—Following judgment in Joseph v. Appana [1925] 3 Fiji LR—that the prosecution must prove interference on the part of defendant or some influence used by him to prevent the wife returning to her husband.

Cases referred to:—
(1) Joseph v. Appana [1925] 3 Fiji LR
(2) Place v. Searle [1932] 12 KB 497.
(3) Philip v. Squire [1791] Peake 114; 170 ER; 27 Dig. 81.
(4) Sanderson v. Hudson [1923] Times, January 23.
(5) Winsmore v. Greenbank [1745] 125 ER 1330; 27 Dig. Si.
(6) R. v. Tolson [1889] UKLawRpKQB 85; [1889] 23 QBD 168; 58 LJMC 97; 60 LT 899; 5 TLR 465; 16 Cox. CC 629; 15 Dig. 743.
(7) Griffiths v. Teetgen [1854] EngR 842; [1854] 139 ER 456; 24 LJCP 35; 34 Dig. 172.

APPEAL by case stated by a private prosecutor. The facts are fully set out in the stated case.

Said Hasan for appellant.

R. A. Crompton, K.C., for respondent.

THACKER, C.J.-To constitute the offence of "unlawful harbouring" within the meaning of s. 45 of the Marriage Ordinance No. 2 of 1918, there must be evidence "that the defendant used some influence against the wife returning to her husband."

These are the words of Chief Justice Sir Alfred K. Young in Joseph v. Appana, unreported in the Fiji reports.^[2] We have however a copy of the learned Chief Justice's judgment. I see no reason why I should not adopt this view of the law. In the case before me on appeal, there was no evidence given by the prosecution that the defendant used any influence or interference to prevent the wife returning to her husband. The onus is on the prosecution to prove that influence or interference. Indeed the evidence is that the defendant first of all sent her back to her husband, but that she later returned. The defendant's conduct may amount to "harbouring" but it has to be more than that—it must be "unlawful harbouring." I cannot find in the facts that there was any such unlawful harbouring if I adopt, as I do, the view taken by Sir Alfred Young in his judgment, supra.

Appeal dismissed with costs.

---

^[1] Now s. 46 of the Marriage Ordinance (Revised Edition page 1189.)
^[2] Repealed in this volume.