Shakuntala v Karan [1978] FJLawRp 21; [1978] 24 FLR 87 (28 July 1978)

[1978] 24 FLR 87

COURT OF APPEAL OF FIJI

RITA SHAKUNTALA

v

SHIU KUMAR KARAN

[COURT OF APPEAL, 1978 (Gould V.P., Henry J.A, Spring J.A.), 17th, 28th July]

Family Law - divorce - ancillary relief - whether respondent's entitlement to relief sought by Answer lapses following dismissal of the Petition - Matrimonial Causes Ordinance 1968 ss. 56, 86 and 89. - Matrimonial Causes (Magistrate's Court) Rules 1969 Rr. 17, 18 and 19.

Following dismissal of the husband's Petition for divorce the Supreme Court ruled that the effect of the dismissal was to terminate the wife's right to continue to seek ancillary relief by way of her Answer.

Held: The filing of an Answer, whether or not, the Petition be dismissed, entitles the respondent to be heard on all matters in respect of which relief is sought.

Meyer v. Meyer (1963) F.L.R. 284 (Australia)

Appeal against decision of the Supreme Court declining to entertain respondent's application for ancillary relief.

Mrs M. L. Billeam for the appellant
K. C. Ramrakha and A. Singh for the respondent

Judgement of the Court (read by HENRY J.A.):

This is an appeal by a wife who successfully defended a petition for divorce brought by her husband on the ground of adultery. The proceedings were taken in the Magistrate's Court. There were three children off the marriage, viz.-

Jyoti Karats born on the 4th day of November 1960

Veena Kumari born on the 20th day of November 1961

Rajesh Kumar Karan born, on the 12th day of February 1969

In this petition the husband sought custody orders in his favour.

The wife filed an answer denying adultery. She also asked for relief as follows;

"(a) Maintenance for myself at the rate of Twenty-five dollars ($25) per week.

(b) Maintenance for each of the said children at the rate of Ten Dollars ($10) per week.

(c) A declaration that the property at 24 Padam Lala Street, Namadi Heights belong jointly to the Petitioner and the Respondent; and the Petitioner and Respondent be further ordered to execute all documents necessary to effect a transfer of this property into the joint ownership aforesaid and the Petitioner be further ordered to register and pay for the cost of the said transfer."

After the hearing, the learned Magistrate recommended the dismissal of the petition. He also made the following recommendation, namely,

"(b) On the question of the custody and maintenance it is recommended tat the Court ask for Welfare Officers report. The Court has power to all for such report under Section 86(2) of the Matrimonial Causes Ordinance 1968, Two children are living with the Petitioner while the eldest child is now living with her uncle. Respondent has also moved to live at another place. It is also recommended that the question of the settlement of the property be adjourned pending the determination of the custody of the children."

When the petition came before the Supreme Court the learned Judge dismissed the petition. There is no appeal against the dismissal. The learned Judge, in dealing with the wife's claim for relief gave a short judgment in the following terms:

"The Magistrate also made recommendations regarding custody of the children and maintenance and as regards the family house.

The respondent in her answer alleged no grounds on which any order for ancillary relief could be made. With the dismissal of the petition that is the end of the matter. If the respondent has grounds for claiming maintenance for herself site will have to seek relief in a properly constituted action. The Magistrate's recommendations regarding ancillary relief are not accepted."

From this judgement, the wife has brought the present appeal.

Section 90 of the Matrimonial Causes Act 1968 was much canvassed before us. It provides solely for orders which the Court may make in favour of a petitioner where a petition has been dismissed in respect of the principal relief sought, that is in respect of dissolution of marriage, nullity, separation, restitution of conjugal rights or jactitation of marriage. Section 90 gives a limited right for a petitioner to get ancillary relief. It has no effect so far as concerns the present appeal which deals solely with the rights of a respondent to get ancillary relief applied for in an answer.

Section 56(2), as amended by the Matrimonial Causes (Amendment) Ordinance 1969, reads:

"56(2) A respondent may in the answer to the petition seek any decree or declaration that the respondent could have sought in a petition or any relief referred to in paragraph (c) of the definition of 'matrimonial cause' contained in subsection (1) of section 3 of this Ordinance."

Paragraph (c) of subsection (1) of section 3 reads:

"3.-(1)(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two proceeding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Ordinance;"

Section 85 sets out the powers of the Court in respect of maintenance proceedings; section 86 in respect of custody and related proceedings concerning children; and section 87 in respect of settlement of property. "The Court" means the Supreme Court: vide section 3(1).

Rules 17, 18 and 19 of the Matrimonial Causes (Magistrates' Courts) Rules 1969 provide for the filing of an answer and for the procedure for applying for ancillary relief. In the present case, the wife had filed an answer asking for ancillary relief as earlier stated. This, in our opinion, entitled her to be heard on all matters in respect of which relief was sought. By section 56(4) the Court and the Magistrate's Court shall, so far as is practicable, hear and determine at the same time all proceedings instituted by the one petition.

The legislation in Fiji follows substantially provisions made in the Matrimonial Causes Act 1959-1966 in force in the Commonwealth of Australia. The relevant provisions in Fiji are put in brackets to show how the respective sections correspond. Thus: section 83(84), section 84(85), section 85(86), section 86(87), section 87(88), section 88(89) and section 89(90). In dealing with the Australian authority cited, we shall refer to the relevant sections in a similar manner.

In Meyer v. Meyer (1963) F.L.R. 284 it was held that although section 89(90) prevented an order for a settlement of property, (section 86(87)) where a petition for principal relief has been dismissed on its merits, nevertheless a respondent, may claim, by answer, an order for a settlement of property. The point was that the relief obtainable under section 89(90) did not extend to settlements whilst the other provisions of the Act enabled such an application to be made by answer. Section 89(90) was later amended in the Commonwealth Act to make it clear that it applied, as in Fiji, only to petitioners who were unsuccessful in obtaining the principal relief sought. The Fiji section 90 does not inhibit the powers of the Court except in relation to an application by an unsuccessful petitioner which is not the present case which concerns a successful respondent claiming ancillary relief. We have considered other decisions in Australian Courts, which support the view we have taken, but find no occasion to refer to them, because, in our view, section 90 has no relevance to the application made by the wife but section 56(2) does expressly give the Court jurisdiction to make the orders sought in her answer.

We turn now to the decision of the Supreme Court. The learned Judge first said that the wife had alleged no grounds on which any order for ancillary relief could be made. So far as concerns custody, the claim appears to be in the usual form and the proposed arrangements were set out. Relief in respect of property was asked in the following terms:

"(c) A declaration that the property at 24 Padam Lala Street, Namadi Heights belong jointly to the Petitioner and the Respondent; and the Petitioner and the Respondent be further ordered to execute all documents necessary to effect a transfer of this property into the joint ownership aforesaid and the Petitioner be further ordered to register and pay for the cost of the said transfer."

Evidence was given in support which we do not intend to review in the present circumstances.

The learned Judge went on to say that, with the dismissal of the petition, that was the end of the applications for ancillary relief. With the greatest respect, we do not agree for the reasons already given in considering the jurisdiction of the Court on an answer praying relief. Section 56(2) does confer jurisdiction.

In view of section 56(4), we are of opinion that the Supreme Court should have dealt with the applications far ancillary relief when the petition far divorce was being considered. We do not agree with the submission, made on behalf of the husband, that these applications have been dealt with on their merits or in any way other than on the ground that the dismissal of the petition was the end of the matter. Such dismissal did not preclude the wife from proceeding with her claims for ancillary relief.

The appeal is allowed and the judgement in the Supreme Court is set aside. The case is remitted to the Supreme Court for such further action as may be just in accordance with the claims for relief made by the wife. As we advised counsel for the wife, this Court will not embark an inquiry into what, if any, orders ought to be made. Appeal allowed with costs and case remitted accordingly.

Appeal allowed: matter remitted to Supreme Court for disposal of respondent's Application for Ancillary Relief.