Mahendra v Wati [1992] FJLawRp 9; [1992] 38 FLR 90 (22 May 1992)

[1992] 38 FLR 90

HIGH COURT OF FIJI

Appellate Jurisdiction

ELVIS MAHENDRA

v

SATYA WATI

And

TABSU NADAN GOUNDER

Sadal J

22 May 1992

Family law - divorce proceedings - ancillary relief - intervention by the Attorney-General - when available - Matrimonial Causes Act (Cap 51) Sections 76, 77 & 81.

A Resident Magistrate referred a contested custody application the Attorney-General. On appeal the High Court HELD: (i) that only the High Court could request the Attorney-General's intervention and (ii) such intervention was not possible after a decree of divorce became absolute.

M K Sahu Khan for the Appellant
Dr. M S .Sahu Khan for the Respondent

Sadal J:

The appellant filed a petition for divorce on 8th August 1990 at the Ba Magistrate's Court on the ground that the respondent had committed adultery with the co-respondent, Tabsu Nadan Gounder.

On 8th September 1990 the respondent swore an affidavit admitting that she had committed adultery with the co-respondent. The respondent is a school teacher and she stated in her affidavit that she was agreeable for the appellant to have the custody of the female child, Anjulesh Mahendra, and she would have the custody of the male child, Amit Mahendra. These are the only two children of the marriage. The daughter was born on 22nd February 1981 and the son was born on 18 August 1982. She did not want any maintenance for the children. It must be noted that the affidavit was sworn before S D Sahu Khan who was not representing the respondent at that time.

The co-respondent did not file any answer but on 23rd August 1990 when the case was first called both the respondent and the co-respondent were represented by counsel.

On 20th September 1990 the petition was heard in the absence of the respondent and the co-respondent. Their counsel was not present either.

On 26th September 1990 the Magistrate pronounced the decree nisi dissolving the marriage on the ground of respondent's adultery with the co-respondent. The court also ordered that the petitioner have the custody of the daughter while the respondent was granted the custody of the son. There was no order made for maintenance.

On 15th October the respondent made an application that the decree nisi be set aside. She also filed an affidavit in support of this application. A reply was file by the appellant.

On 12th December 1990 the Magistrate extended the time for the decree nisi to become absolute by a month.

On 19^th March 1991 the respondent’s application to have the decree nisi set aside was struck out and the Magistrate ordered that the decree nisi be made absolute forthwith.

On 22nd May 1991 the respondent made an application for the custody of both the children. She also asked maintenance for the two children. An affidavit was filed in support of this application.

On 16th July 1991 the Magistrate ordered that the respondent to have custody of both the children and the appellant pay $12.50 per week maintenance for each child. The court also ordered the appellant to have reasonable access to the children. These orders were made in the absence of the appellant. The court record shows that his counsel, Mr. G P Shankar, was present when these orders were made.

On 19th August 1991 the appellant made an application that the order made on 16^th July 1991 be set aside and that he be given custody of both the children. This application was made in person with a supporting affidavit.

The court record shows that this application came before the court about seven times before the Magistrate made an order on 13th January 1992 "the motion on custody be not heard and the matter be referred to the Attorney-General." The court also made orders for interim access to the children.

It is against this order of 13th January 1992 the appellant has lodged the appeal. The grounds of appeal appear to be-

a) that the Magistrate was wrong in referring the matter to the Attorney-General

b) that the Magistrate was wrong in varying the order for custody on 16th July 1991

c) that the Magistrate erred in refusing to hear appellant's application to have the order made on 16th July 1991 be set aside.

Dealing with the first ground the Magistrate's order to refer the matter to the Attorney-General was made more than nine months after the decree nisi had become absolute and at the same time he has given no reasons as to what kind of matter he was referring to Section 76 of the Matrimonial Causes Act (Cap. 51) deals with the question of intervention by the Attorney-General on request from the High Court (formerly Supreme Court). Section 76 states -

"In any proceedings under this Act where the Supreme Court requests him to do so, the Attorney-General may intervene in, and contest or argue any question arising in, the proceedings."

Under this section a Judge has no authority to require the Attorney-General to intervene and where he directs that the papers in a suit be sent to the Attorney-General for investigation he is not purporting to require the Attorney-General to intervene.

Under Section 77 of the Matrimonial Causes Act the Attorney-General cannot intervene after a decree nisi has become absolute. Section 77 states -

"77. In proceedings under this Act for a decree of dissolution or nullity of marriage, judicial separation or restitution of conjugal rights or in relation to the custody or guardianship of children, where the Attorney-General has reason to believe that there are matters relevant to the proceedings that have not been, or may not be, but ought to be, made known to the court, he may, at any time before the proceedings are finally disposed of, intervene in the proceedings."

The term "before the proceedings are finally disposed of simply means that intervention can take place at any time up to decree absolute but not thereafter.

Further, Section 81 of the Matrimonial Causes Act appears to prevent any kind of intervention envisaged by Section 77 after decree absolute, therefore, no intervention appears possible on matters of custody, or other ancillary relief in proceedings after decree absolute. Section 81 states-

"81. For the purposes of this Part, where a decree nisi has been made in any proceedings, the proceedings shall not be taken to have been finally disposed of until the decree nisi has become absolute."

In my view the order of the Magistrate to have the matter referred to Attorney-General cannot stand.

As far as ground two is concerned the variation application was served on the solicitors for the appellant and Mr. G P Shankar was present when the order was made on 16th July 1991. It is admitted that when this order was made the Magistrate did not have any affidavit of the appellant filed in reply to respondent's application for variation of the custody order. Mr. Shankar was [sic] the solicitor on record and his instructions where not terminated until well after the making of the order.

The order that the matter be referred to the Attorney-General is revoked and it is ordered that the Magistrate without any further delay proceed with appellant's application dated 19th August 1991 regarding the setting aside of the order of 16th July 1991 and until then the order of July 16 continues.

No order as to costs.

(Appeal allowed.)