RL v UN [2013] FJMC 111; Family Case 447.NAS.2012 (14 March 2013)

IN THE FAMILY DIVISION OF THE MAGISTRATE'S COURT
AT NASINU

Family Case No. 447/NAS/2012

BETWEEN:

R. L.
[Applicant]

AND:

U. N
[Respondent]

BEFORE: RESIDENT MAGISTRATE: MR. SUMUDU PREMACHANDRA

APPLICANT : Mr. Raman Prathap Singh
RESPONDENT : appeared in person

Trial Details

Date of Hearing: 31st January 2013
Judgment : 14th March 2013 at Nasinu, Fiji

JUDGMENT ON DIVORCE

A. The Application

1. This is an application (form 1) for Divorce by the applicant lady.

B. The Response

2. The Respondent has filed his response form 4.

C. The Issues

3. (i) Whether the parties have separated over one year;
(ii) Whether their marriage has irretrievably broken down?
(iii) If so, will Form 1 for the Respondent succeed?

D. The Evidence

4. The Applicant and the Respondent gave sworn evidence under oath.

5. The applicant lady gave evidence first. In her testimonies she told the court briefly that she married to the respondent on 23.7.1996 at Suva in Fiji. The marriage certificate has already tendered as Exhibit 1. They have separated on 18th of July 2011. After the separation they did not stay back again. There are two (2) children of the marriage. Both are under 18. They are Ashneel Narayan and A. Priya Narayan. The custody of the children are in with the applicant. She supports the children by herself. She does not want any maintenance from the respondent. Children are attending school and One in Form 3 and one in Form 4. She does not want to reconcile and she does not want to go back to him.

6. In cross examination, the applicant question whether she had extra marital affair with one Rinesh, but she admits that she met Rinesh just Hi and Hello but she denied that she had extra marital affairs with him. The Applicant said that she did not ignore cooking and washing but she is not his servant.

7. Thereafter the Applicant closed his case.

8. Then the Respondent's rights were explained and he opted to remain silence

E. Law on Divorce:

9. Grounds for dissolution of marriage have been given in section 30 of the Family Law Act 2003. I reproduce it for clarity.
   

"30.-(1) An application under this Act by a party to a marriage for an order for dissolution of the marriage must be based on the ground that the marriage has broken down irretrievably.

(2) Subject to subsection (3), in a proceeding instituted by an application, the ground will be held to have been established, and an order for dissolution of the marriage must be made, if, and only if, the court is satisfied that the parties have separated and have thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.

(3) An order for dissolution of marriage will not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed."

F. The Findings

10. I now consider the evidence. The date of separation is not disputed by the Applicant or the Respondent. They have separated on 18th of July 2011. and by then they had separated more than one year before filing the application. The Respondent is inviting unconditionally. But the Applicant lady does not want to reconcile. She vigorously refuses him. They were separated over misunderstanding and the Applicant says she can look after her children.

11. Family law simply allows divorce whether party is a guilty or innocent. Any party can get divorce after one year continuous separation. It may be unfair by innocent party which the court cannot help. As this case the Applicant does not want to maintain her marriage ties. The date of the separation is not disputed. It is apparent, the parties have separated continuous period of 12 months before the application. The refusal of the Applicant is unreasonable and the given reasons are common in all marital problems. But they have separated over one year. I therefore hold there is no chance for reconciliation of this marriage. I further hold this marriage has been broken down irretrievably. The Applicant was in hurry to get the divorce but there are formalities to be followed by the court.

12. Considering all these facts, I make following orders;

1. I grant conditional order for dissolution of marriage and it will absolute after one month.
   
2. Orders with effect from today
   

Orders Accordingly

30 days to appeal

SUMUDU PREMACHANDRA [Mr.]
RESIDENT MAGISTRATE
14-03-2013