Chand v State [1997] FJLawRp 33; [1997] 43 FLR 217 (28 August 1997)

[1979] FCA 30; [1997] 43 FLR 217

HIURT OF FIJI ISLANDS

PREM CHAND

v

STATE

[HIGH COURT, 1997 (Pathik J) 28 August}

Appellate Jurisdiction

Sentence- domestic violence- Penal Code (Cap 17) Section 245.

The Appellant was sentenced to 6 months imprisonment after pleading guilty to a &#822 case” of domestic viic violence. The Parties having reconciled, the High Court, allowed the appeal and ordered the release of the Appellant who had already served 7 weeks in prison. The Court also imposed a further suspended term of imprisonment and reminded the Appellant of his duty to respect his wife.

Caseed:

Divendray vjay v. State ( 43 FLR 144

Mosese Gese Gaunavou v. State (Crim. App. No. HAA0011
)

Appeal against sen impo imposethe Mrates7; Cour Court.

Appellant in Personerson
Ms. A. Driu for ;for Respondent
Pat:#160;
On 7>On 7 Jul7 July 1997 the appellant was on his own pown plea convicted of the offence of assault occasioning actual bodily harm on ife cry to section 245 of the Penal Code and was sentenced tomonths&nths’ imprisonment by Magistrate Moses Fernando Esq. at Magistrate’s Court Labasa.

The appeal isnst sty ofty of sentence.

Thellant is 28 years olrs old and has two children aren aged 3 years (daughter) and a son 5 yeld. He told this Court that he has now reconciled with the complainant who is his wife.
.

e learned Magistrate hate has stated when sentencing him, this was a very bad case of domestic violence. The injuries inflicted covered various parts of the bod>
The wife wants the appellant to be released from from prison and requests the Court to give him a suspended sentence of imprisonment. She says that she finds it very difficult to look after the children and that she is not even wanted at her brother’s home. She said that if freed the husband will be able to harvest cane and earn some income to support them.

The ed State Counsel suel submitted that the fact of reconciliation at the time of sentencing was not before the learned Magistrate.submits that if reconciliation is accepted the sentence could be varied by a long suspendedended sentence bearing in mind the extensive nature of the injuries inflicted on the wife.

I this to be one of thef the worst types of domestic violence to come before the Court. The learned Magistrate has quite rightly imposed an immediate custodial sentence. This kind of behaviour wot be tolerated by the Cour Courts. The appellant should realize that the fact that the complainant is his wife does not give him a licence to assault her and inflict injuries on her and then expect leniency from the Courts. He has to be given an appropriate sentence.

Recently thourable the the Chief Justice had occasion to hear an appeal in the domestic violence case of &#1u> (43144). That was a case whse where reconciliation was effected but the learned Magistrate didapproach it the way he should have. Now that the fact of reconciliation is before this Cour Court each case should be judged on its own facts and as the Chief Justice in Divendra Bijay (suprp.6 to 7) said “8220;each case must be assessed and evaluated in its true merits” and that “the best guidance, as always, is for the courts to grasp the essence of estabd genprinciples of senf sentencitencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle”.

Now, putting on my haa of a marriage officer, I must say that it is quite obvious that when the appellant assaulted his wife he had forgotten the marriage vows which he took when he went through the religious cereof marriage. The taking of g of sacred vows is called in Hindi Pani-Grahana and Pratijyna and this is done with the right hand of the bride clasped by that of the bridegroom. One of the vows is the “taking of the seven steps” called Sapta-Padi towards the end of the marriage ceremony. With a knot tied between the clothing of the bride and the bridegroom to indicate fusion of two hearts and the union of two different families, the bride and bridegroom take seven steps symbolising entry into married life. As they take each step they invoke the blessing of God for: food and nourishment, strength, wealth, education and knowledge, children, health and love and friendship. Thus the bride and bridegroom are no longer two independent beings but one integrated personality united by firm resolve to supplement and complement each other in every aspect of life. For a successful marriage you two have to move together in the same direction like the wheels of a chariot. You cannot have the wheels going in different directions.

I think e said enough tugh to bring home the point for the benefit of the appellant and others minded to deviate from the right path.

The appellant has served about seven weeks of his sentence and now realizes how tough the prison life is and now he wants his wife to come to his rescue by having him released. Seeing her own difficulties and the plighthe appellant on the one hane hand and those of the children on the other, she is a brave and forgiving woman willing to take him back with a warning from the Court that he should “live like a husband”. Those sentiments are typical of an Indian woman. According to Hindu Religion women should be respected in society and a society which does not respect them is heading towards its downfall. I will tell the appellant a bit of history. It was Swami Dayanand Saraswati, the founder of Arya Samaj Organisation in India on 10 April 1875, who brought Indian women out of bondage when women were regarded as chattels and fit to be trampled upon. That is what you the appellant have done in this case. Swamiji gave equal right to women as men.

To concludhave digresseressed a little by not sticking strictly to legal principles but I feel that for you as an Indian some of these Industoms and traditions should be followed and the society’s norms and expectations cans cannot be ignored if there is to be peace and happiness in one’s married life. What I have said above should have far-reaching influence on those who fall foul of the good and accepted practices in one’s matrimonial life.

The following wor ChiefChief Justice in Moseseavou and Statee (Crim. Ao. HAA0011J.96B) arB) are pertinent and I would apply them here:

&#82 is a a concern for the court to try and help any fami family experiencing domestic difficultieslties to resolve its problems as much as possibt is for that reason that this court believes that it would be in the best interest of this this family if the appellant, the man of the house in this case, is not kept away from his family for too long.”

Bearing in mind the interests of the children and the need for the father to be with his family, I vary the sentence by setting it aside and substituting it with a sentence of 9 months’ imprisonment suspended for 18 months. The appellant is explained his liability. He is now ordered to be released from Prison forthwith.

(Appelowed; sentencetence varied).