Khan v Khan [1975] FJLawRp 19; [1975] 21 FLR 122 (24 October 1975)

[1975] 21 FLR 122

SUPREME COURT OF FIJI

CIVIL JURISDICTION

HAFIZUD KHAN

v

ARIETA KHAN

[SUPREME COURT, 1975 (Williams J.)., 24th October]

Husband and wife—custody of child—whether parent fit and proper person to have such custody. Practice and procedure—welfare report of Probation Officer—powers of courts to request such reports—Maintenance & Affiliation Act 1971 s. 15—Matrimonial Causes Act 1968 ss. 65, 86.

On the hearing of a summons under the Maintenance & Affiliation Act 1971 by a wife on the grounds of her husband's cruelty, desertion and adultery, the wife also asked for custody of the child of the marriage. The hearing was adjourned to another date by the Senior Magistrate who called for a Probation Officer's report as to the circumstances of the parties. At the adjourned hearing the Senior Magistrate declared that he was not prepared to adjudicate upon the case for personal reasons. He removed the report from the record and stated that the whole matter, including the relevance and admissibility of the report should be decided by the trial Magistrate.

At the subsequent trial, the wife failed to prove her allegations of cruelty, desertion and adultery, but the Magistrate did award her custody of the child. The original probation report was not produced or considered.

On appeal by the husband against the award of custody to his wife.

Held: There was ng in the evidencidence to suggest that the wife was not a fit and proper person to have custody except for the fact that she had been married before and had hadllegitimate child. The welfare of the child was the paramouramount consideration and it was impossible to say that a mother who had committed adultery was not a fit and proper person vis-à-vis one who had not, to look after the child.

Per curiam: Proceedings were insed unde under the Maintenance & Affiliation Act 1971 which only allowed a Magistrate to request a Probation Officer to effect a reconciliation, and if unsuccessful to report thereon to him, but such report was not receivable in evidence. In addition, there was the power for a Magistrate to request the Probation Officer to enquire into the means of the parties; such report to be evidence. Matrimonial Causes Act 1968 s. 86 empowered the Supreme Court to call for a welfare report, but there was doubt whether this power extended to the Magistrate's Court. The point of law was left undecided as the Magistrate had never, in fact, even mentioned or considered the report.

Cases referred to:

Willoughby v. Willoughby [1951] P. 184.
Allenlv. Allen [1948] 2 All E.R. #160; 64 T.L.R. 418.
Kamchan Singh v. Police (1953) 4 F.L.R. 69

Appeal against the awa the Magistrate's Court of custody of the child of the marriage to the wife.

B. C>B. C. Patel for the appellant. for the respond/p>

WIWILLIAMS J.: October 1975]-

>

This is a husband's appealnst a Magistrate's order granting custody of a child to the wife.

The husband, an Inan Indian, was 21 years old and the wife a Fijiho had been married before,fore, was 27 & 1/2 years old.

They are both bank officers employed by the First National City Bank, but at different branches.

A female child was born on 28.5.74 and on 13.10.74 the parties separated.

On 15/10/74, after a mere two days of separation, the wife took out a summons, under the Maintenance and Affiliation Act 1971, for maintenance, alleging cruelty, desertion and adultery and which was returnable on 24/10/74.

On that date, the wife was unrepresented and Mr Reddy appeared for the husband who denied the charges. The wife then asked for custody of the child. Mr Reddy, for the respondent, stated that it would be alleged that the wife was not a fit and proper person to have custody of the child. The hearing was deferred to 14.11.74 to await a Probation Officer's report and then the hearing date was fixed for 16/12/74.

On 16/12/74 Mr D. S. Sharma represented the wife and Mr Reddy appeared for the husband. The Senior Magistrate declared that this was a case which for personal reasons he felt he should not adjudicate upon. At the time there was in the court file the Probation Officer's report which had been requested by the Magistrate. He decided later to remove the report from the court file, and he stated that the whole matter, including the relevance and admissibility of the Probation Officer's report, should be decided by the trial Magistrate.

On 26/3/75 the trial was conducted by another Magistrate. The wife was represented by Mr J. R. Singh and Mr B. C. Patel appeared for the husband.

The wife failed to prove her allegations of adultery and cruelty and desertion. The Magistrate decided that she had deserted the husband. The record of evidence shows that in the early stages of the marriage, the couple lived with the husband's parents in Suva. It appears that the life in an Indian household did not suit the wife who, not unnaturally, wanted a home of her own. As a result there were brief separations and re-unions until the husband was transferred to Nadi and the couple lived in a furnished house provided by the bank. The wife was transferred to the Lautoka branch.

Some trouble developed when they were visited by the husband's parents who were returning from a trip to Canada. The wife adopted an uncompromising and unfriendly attitude towards them which upset the husband. It led to a dispute as a result of which the wife left home on 13.10.74.

Although there may not have been any lawful excuse for her leaving the matrimonial home one could not say on the evidence that her behaviour was inexcusable and quite unjustified. The husband had nothing to say about the domestic quarrels and he did not deny the wife's allegations that he threatened to beat her and ordered her out of the home, nor is there any evidence that he has tried to be reconciled.

The Magistrate observed that the wife's conduct involved no moral turpitude or depravity of a kind which indicated that she was unfit to have custody of the child. He awarded custody to the wife.

The husband appeals against that decision. The grounds of appeal, are not very satisfactory. With respect to the draftsman it seems to me that he gave very little consideration, if any, to setting out proper grounds of appeal. They were far too general and vague to be of much assistance to the Court or to the respondent's counsel who is entitled to know at least the fundamentals which are to be argued. I set out the purported grounds of appeal for convenience:-

1. That the decision of the learned trial Magistrate is against the welfare and interests of the child.

2. That the learned trial Magistrate should have considered the Probation Officer's report in coming to his decision.

3. That the decision of the learned trial Magistrate is against the weight of the evidence.

I observed to Mr B.C. Patel, in relation to ground one, that the very issue before the Magistrate was as to what was best for the welfare and interest of the child, and that he had purported to consider it and decided accordingly. Therefore ground one was simply a way of saying that the Magistrate's decision was wrong which of course does not constitute a ground of appeal.

Mr Patel concurred but said that the draftsman really meant that the Magistrate had acted on wrong principles. Even if that were so, it would be necessary to set out in what way the Magistrate had erred or misdirected himself. I ordered that ground one be struck out.

With regard to ground two, I have already referred to the receipt by the Senior Magistrate of a Probation Officer's report. Mr B.C. Patel, for the husband, stated that he was under the impression that the report was before the trial Magistrate and would be considered by him. I cannot see why Mr B.C. Patel should have been under such a misapprehension because it was at the instigation of the husband's counsel that the report was called for. When I say " instigation ", I do not mean that the report was obtained at the husband's request, but when the wife told the Senior Magistrate she wanted custody, Mr Reddy, for the husband, said he could allege the wife was not a fit and proper person to keep the child. The Senior Magistrate then recorded,

"Since the Respondent is alleging these matters I’ll call for a Probation Officer's Report to see who should have custody."

For personal reasons the Senior Magistrate did not conduct the trial and he removed the Probation Officer's report from the record. In dissociating himself from the hearing, he referred to the report and that he had adjourned to consider whether he had authority to call for and use the report, but had decided that he should not rule on its admissibility. The Magistrate's recorded words are clear and unambiguous:-

"Another Magistrate will be assigned to hear this application. The Probation Officer's report will be taken out of the file and the whole matter will be determined by another Magistrate."

He made it clear, and in my opinion he was right in so doing, that he was not able to tie down another Magistrate to his own views on the admissibility of the report.

At the trial it was for the parties to decide what evidence they wished to rely upon. Whoever wanted to introduce the Probation Officer's report should have asked the trial Magistrate to rule on its admissibility. That was not done. Therefore it could not have been before him for he had neither admitted nor rejected it. There was an arguable issue on its admissibility because the proceedings were instituted under the Maintenance and Affiliation Act, 1971, which only permits the Magistrate to request a Welfare (Probation) Officer, under s.15, to effect a reconciliation, and if unsuccessful to report thereon to the Magistrate, but such r is not receivable inle in evidence. The only other power under the section is for the Magistrate to request the Probation Offic inqund report into the means of the parties; such report to be evidence.

HowevHowever, ter, the report in question appears to have been called for under s.86 of the Matrimonial Causes Act 1968, which empowers the Supreme Court to call for such reports. The question which appears to have exercised the minds of the advocates and the Senior Magistrate was whether a Magistrate could under s.86, call for and consider such a report. Part XI of the Matrimonial Causes Ordinance, 22/68, empowers Magistrates to conduct proceedings under the Ordinance and make recommendations thereon to the Court (which by definition means " the Supreme Court ".) Section 65 states that in hearing such proceedings Magistrates have the powers vested in them under the Magistrates' Courts Ordinance. It could be argued that such a precise reference to a Magistrate's powers excludes any implied extension of those powers so as to include the authority specially created by s.86. The said Part XI comprises sections 64 to 76; it does not include s.86 and it is arguable whether the Senior Magistrate had power to call for the report or whether such power is limited to the Supreme Court.

I am not purporting to decide that point of law. The learned Senior Magistrate told the advocates that he was making no ruling and he deliberately left that point to be decided by the trial Magistrate. The latter could not decide whether or not to admit the report unless his attention was drawn to it. Neither party mentioned it. If the husband had endeavoured to put it in as evidence the wife may have raised the question of its admissibility.

Mr B. C. Patel cannot say that the trial Magistrate should have considered a report which was never admitted or even mentioned, and which the Magistrate may have felt was beyond his power to consider.

Mr B. C. Patel says that he did not raise the question of the report because he thought it was in the Magistrate's file. He could not have been under that misapprehension had he concerned himself with the Senior Magistrate's record and directions therein.

Had Mr B. C. Patel thought the record was in the file why did he not seek a decision as to its admissibility? No reference was made to its contents during cross-examination of the wife although she was extensively cross-examined, nor in Mr Patel's final submissions to the trial Magistrate; yet if he were relying upon the report he must surely have said so and explained to the Magistrate how and in what manner it supported the husband's claim to custody.

Ground two of the appeal is not made out.

The third ground of appeal takes a form which has been repeatedly complained about by Appellate Courts. To what extent does the husband allege that the decision is against the weight of the evidence? Would he put the ratio as 51 (husband) and 49 (wife); or something a little stronger, say (60 to 40). What appellate court can possibly purport to balance the recorded evidence and submissions in such a way? In Kamchan Sin Police,&/i>, (1953) 4 F.L.R. 69, Hyne said:

" It is not sufficient merely to allege that that the verdict is against the weight of t of the evidence. In order to succeed the appellant must show that the verdict is unreasonable or cannot be supported having regard to the evidence. It is necessary for him to show that there was no evidence on which the Magistrate could reach the conclusion which he did reach if he properly directed himself."

There is no doubt in my mind that the trial Magistrate properly directed himself. Mr B. C. Patel, for the husband, submitted that the Magistrate's statement that there was no indication of that sort of moral turpitude or depravity which made the wife unfit to have custody was a misdirection, in stating that it was only a certain degree of moral turpitude or depravity which would defeat the wife's claim. I feel that one has to go back to the pre-trial stages in order to follow the gist of the Magistrate's statement. As I have said, the husband's advocate informed the Senior Magistrate before the trial that they would seek to show that the wife was not a fit and proper person to look after the child. The trial Magistrate no doubt had that in mind, and was seeking the evidence, if any, which would support that contention. Apart from her admissions that she had had a "night out" with a friend, and enjoyed a drink at social gatherings and occasionally got "merry", there was nothing to support any allegation that she was unfit to care for the child. As the Magistrate put it, the evidence did not indicate the kind of moral turpitude or depravity which reveals her as unfit to have custody. It is pertinent to observe that the husband, in evidence, did not say a single word to suggest that the wife was not a fit and proper person to have custody.

It was argued by the husband that his mother, in Suva, could devote the greater part of her time to the child's upbringing, whereas the wife, who works from about 9 a.m. to 6.00 p.m., is away from home during the day.

However, the wife worked before her marriage and after it; before the birth of the child and afterwards. The husband worked similar hours to those of the wife. Consequently the child would get no less maternal attention following the separation of its parents then it received when they were together.

The income of the wife is as substantial as that of the husband and she can afford to provide it with a good home. Although she would have to rely considerably on the paid services of a housegirl in helping with the home and the child, this is a situation which existed before the parties separated.

Reference was made to the fact that the wife had been married before and has had an illegitimate child.

In Willoughby v. Wilby& L.R. 1951. P. 184 the, who who was the guilty party in divorce proceedings and who had committed adultery, sought the custody of the 2 year old daughter of the marriage. At pCohen said,

"Thp>"The real difficulty is this: in a mattematter which is a matter of discretion, we must not interfere with the judge's discretion unless we are satisfied that he went wrong in principle, or, possibly, this being a custody case, that the evidence clearly shows that the order of the judge would be detrimental to the infant."

In that case custody had been awarded to the father because in the opinion of the trial judge, the wife who had committed adultery might do so again. Cohen L.J. at p. 190 quoted from the judgment in Allen v. Allen&#1608[1948] 2 All E.R. 414 which referred to a similar state of affairs,

"That was not the proper test to apply. The welfare of the child, both moral and physical, was the paramount considen. It was impossible to sayo say, because a woman had once committed adultery she was not a fit person, vis-à-vis one who had not, to look after a child."

He continued on the same page,

"............. we are dealing with a girl of two years, and to a child of that tender age I do not think a step-mother, however anxious to do her best for the child-and it is accepted that the father's second wife can be so described-can take the place of the mother."

The appellate court allowed the wife's appeal and awarded custody to her.

In my view the trial Magistrate's considerations have not deviated from the sentiments expressed by Cohen L.J.

I am unable to accept that on the evidence the Magistrate's decision was unsupportable in being contrary to the best interests of the child.

The appeal is dismissed with costs to the wife.

Appeal dismissed