Mati v Prasad [1960] FJLawRp 4; [1960-1961] 7 FLR 28 (21 March 1960)

[1960-61] 7 FLR 28

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction
Miscellaneous Civil Appeal No. 9 of 1959

Between:

RAJ MATI
Appellant

AMIKA PRASAD
Respondent

Separation and Maintenance (Summary Jurisdiction) Ordinance (Cap. 31) - wife requiring independent matrimonial home away from husband's parents - whether an unreasonable condition in offer to resume cohabitation.

The appellant sought a maintenance order against the respondent, her husband, on the grounds of desertion and wilful neglect to maintain. The appellant, who had left the respondent because she was unhappy at his parent's home where they were living, had offered to return to him on condition that he set up a matrimonial home away from his parents. The Magistrate held that this was an unreasonable condition and that the respondent had therefore no case to answer.

Held.-(1) It would be quite absurd for it to be held by the courts that once a woman had agreed to live with her husband at his parent's home at the time of their marriage it was unreasonable of her at any later stage in their married life to desire to set up an independent matrimonial home.

(2) The Court below must decide whether or not, on the whole of the evidence, the appellant's stipulation was a reasonable or an unreasonable condition.

Appeal allowed. Case remitted to the lower Court.

Case cited:
Dunn v. Dunn (1949) P. at p. 103.

A. Lateef for the appellant.
A.I.N. Deoki for the respondent.

HAMMETT, J. [March 21, 1960]-

This is an appeal from the decision of the Magistrate's Court of the First Class sitting at Suva dated 15th October, 1959, whereby the complainant appellant's application for a Maintenance Order under the Separation and Maintenance (Summary Jurisdiction) Ordinance against her husband on the grounds of desertion and wilful neglect to maintain her was dismissed.

The parties were married on 10th March, 1956. After the marriage the parties cohabited first at the home of the husband's parents, then for a time at that of the wife's parents and finally at the husband's parents' home again.

The wife was not happy at the home of her husband's parents owing to differences with his mother. She left and returned to live with her own parents. In 1958 she claimed maintenance from her husband on the ground that she left her husband because his mother way continuously criticizing her and he would not set up a home for her away from that of his parents. Her claim was dismissed on 21st March, 1958, on the ground that the failure of her husband to intervene on her behalf with his mother could not be classified as persistent cruelty or any other ground justifying her leaving her husband.

On 5th July, 1958, the appellant's solicitors wrote to her husband on her behalf offering to return to live with him if he would set up a home independent of either his parents or her parents. To this letter the husband made no reply. The wife having awaited in vain for some 6 weeks for a reply then issued the summons in this case claiming maintenance on the ground of her husband's desertion of her on 5th July, 1958, and his wilful neglect to provide reasonable maintenance for her since that date.

The case was heard by the Magistrate's Court at Nausori on 3rd September, 1959, when the Court ruled that the defendant had no case to answer. It is against that ruling that the wife now appeals.

In the course of his ruling the learned trial Magistrate first held as fact that the wife appellant's offer to return to her husband was genuine and bona fide. Later in the judgment however, he said that the offer to return could not be said to be genuine or sincere because it was conditional upon the husband setting up a matrimonial home away from his parents. It appeared that the learned trial Magistrate considered this to be an unreasonable condition for the wife to impose in view of his predecessor's ruling in the previous maintenance case between the same parties.

With respect to the views of both the learned Magistrates who have dealt with this case, I do not think that either of them have had sufficient evidence before them to enable them properly to arrive at a finding of fact on the reasonableness of the wife's contention that her husband should set up a matrimonial home away from his parents.

In this case it is clear that the parties to this marriage both being young at the date of their marriage, (they were aged 19 and 22 years respectively), contemplated that the practice, not uncommon among the Indian community in Fiji, of setting up a matrimonial home at the home of the husband's parents would be followed. If, having agreed that this would be the case, the wife had, as soon as she was married, refused to go to her husband's parents' home but had at once insisted on him setting up a separate matrimonial home, I think it might have been open to the Court below to say that she was imposing an unreasonable condition upon her husband.

In this case however the wife did co-operate with the husband by setting up a matrimonial home with him at his parents' home immediately after the marriage but after some years has found life there uncongenial. It would be quite absurd for it to be held by the courts that once a woman had agreed to live with her husband at his parents' home at the time of their marriage it was unreasonable of her at any later stage in their married life to desire to set up, an independent matrimonial home.

In my opinion, in these days, it is not unreasonable for any spouse to wish to set up an independent matrimonial home away from their relatives, irrespective of the fact that their personal relations with those relatives may have become uncongenial. Where a wife finds she is not happy living in the same house as her "in-laws" whether the fault be hers or theirs, and whether there be good reason or not for her unhappiness I think it is quite reasonable for her to wish to set up an independent matrimonial home away from them.

But whilst this may be a reasonable wish on her part, it might in certain circumstances be quite unreasonable of her to insist upon her wish being granted immediately and going to the lengths of leaving her husband unless he satisfied this wish at once. For example, the means of the parties and the expense involved in setting up an independent home would have to be considered.

Once the Court below was satisfied that the wife's offer to return was bona fide, it had to consider whether the condition imposed that the husband should set up an independent matrimonial home was a reasonable condition or not. As I have already said, I do not think the wife's wish to live apart from her in-laws was, per se, unreasonable. In Dunn v. Dunn (1949) P. at page 103 Denning L.J. dealt with this question and said:-

"I want to say a word also on the proposition that a husband has the right to say where the home should be, for, indeed, it is the same fallacy in another form. If the proposition were a proposition of law it would put a legal burden on the wife to justify her refusal; but it is not a proposition of law and I am sure Henn Collins J. in Mansey v. Mansey ⁽²⁾ did not intend it as such. It is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage earner and has to live near his work. It is not a proposition which applies to all cases. The decision where the home should be is a decision which affects both the parties and their children. It is their duty to decide it by agreement, by give and take, and not by the imposition of the will of one over that of the other. Each is entitled to an equal voice in the ordering of the affairs which are their common concern. Neither has a casting vote, though to be sure they should try so to arrange their affairs that they spend their time together as a family and not apart. If such an arrangement is frustrated by the unreasonableness of one or the other and this leads to a separation between them, then the party who has produced the separation by reason of his or her unreasonable behaviour is guilty of desertion. The situations which may arise are so various that I think it unwise to attempt any more precise test than that of unreasonableness. Views as to unreasonableness may vary, and the decision is essentially one for the trial judge with which this Court should not interfere, unless the conclusion is one which could not reasonably be drawn. If a wife refuses to join her husband at a place where he is ready to receive her, that is, of course a factor of great weight, but it is not necessarily decisive. In this case the judge has held that the wife's refusal was not unreasonable".

The ruling of the trial Court that the respondent had no case to answer because his wife accompanied her bona fide offer to return with a condition that they set up a matrimonial home away from his parents, was based on the view that this was an unreasonable condition for the wife to make. In my opinion the learned trial Magistrate erred in so ruling, since this was not an unreasonable wish on the part of the wife. It is a reasonable request that the husband should have been willing to grant unless he could show cogent reasons for refusing to grant it.

I do not, however, think the learned trial Magistrate was in a position properly to adjudicate upon the reasonableness of the wife's condition of residence in this case, without hearing both the parties.

For these reasons I allow this appeal and set aside the ruling of the trial Court that the respondent husband has no case to answer. I direct that the case be returned to the Court below and that the respondent be called upon to make his defence. After hearing the defence the Court below must then decide whether or not, on the whole of the evidence, the appellant's condition that the parties set up an independent matrimonial home away from the parents of both parties was in the circumstances of this case a reasonable or an unreasonable condition bearing in mind the considerations referred to in Dunn v. Dunn which I have cited in this judgment.