Nisha v Singh [2018] FJMC 99; Civil Case 33 of 2018 (5 November 2018)

IN THE RESIDENT MAGISTRATE’S COURT OF FIJI
CIVIL JURISDICTION
WESTERN DIVISION AT LAUTOKA

Civil Case No. 33 of 2018

BETWEEN : Nazmin Nisha of Tauvegavega, Ba, Domestic Duties.
PLAINTIFF

AND : Rajend Singh of Yalalevu, Ba.
1^st DEFENDANT

AND : Kusma Wati of Yalalevu, Ba.
2^nd DEFENDANT
______________________________________________________________________________________________________
Before : The Resident Magistrate

Mr. Jeremaia N. Lewaravu

Date of Hearing: 1^st of November, 2018

Counsel
Nazeem Lawyers for the Plaintiff
Dayal Lawyers for the Defendant
______________________________________________________________________________________________________

Judgement
Introduction

1. The Plaintiff herein had initially filed a Writ of Summons along with an exparte motion and supporting affidavit seeking an interim injunction against the Defendant(s) at the Ba Magistrate Court on the 26^th of October, 2018. On the said day, the Court granted an interim injunction sought under order 6(vi) of the motion. On the 29^th of October, 2018, the Defendant(s) sought time to file a Statement of Defence and Affidavit in Opposition to the motion filed herein. Given the urgency of the matter and the pending official engagement overseas of my Brother Magistrate Qica, the matter was transferred to this Court for a determination of the substantive matter on the 1^st of November, 2018.
   
2. This case is a rarity by its very nature. It is a highly sensitive case and a difficult decision to make knowing that no matter what decision is made, one party is likely to be distressed by the result. Nevertheless, a decision is still required to be made. It is the fervent hope of this Court that the parties will find peace regardless of the outcome.
   
3. The subject matter of dispute herein relates to the custody, possession and disposition of a deceased person, namely the late Mr. Ranjeet Singh who died in a motor vehicle accident on the 25^th of October, 2018. The Plaintiff herein was his defacto wife while the Defendant(s) are his elder brother and mother respectively. The issue for which the Court must decide under the Order 6(vi) is ‘the determination as to the rightful custodian of the corpse and by who and under which religious faith the corpse last funeral rites of the deceased is to be conducted and/or until further Order’. The issue is important to the parties because the Plaintiff wishes to have her late defacto husband’s body buried under his Islamic belief as he had converted to Islam and married the Plaintiff in a traditional Islamic wedding ceremony whilst the Defendant(s) wish to cremate their late brother and son respectively according to Hindu rituals. The religion of his birth.
   
4. The Court file herein was finally delivered at around 7pm on the 31^st of October, 2018 for a Hearing the next day. Given the time limit and the urgency of the application, the initiation option of such proceedings in Court are paramount. I will explain in course of this judgement.
   

The Preliminary Issue

5. During the Hearing of the matter, Counsel for the Defendant raised a preliminary issue. He stated that the amount claimed under the heading damages exceed the jurisdiction of the Court and that the Plaintiff has failed to properly highlight the provisions relied upon given that under common law there is ‘no property in a dead body’.
   
6. In reply, Counsel for the Plaintiff stated that the claim under the heading damages is not inclusive of legal cost which is a relief sought outside the monetary jurisdiction of the Court. Secondly, the Plaintiff is relying on section 16(h) of the Magistrates Court Act. Counsel further stated that there is an Australian case authority that there is property in a dead body. When prompted to provide a copy of the said case authority, Counsel sought leave to provide the same at a later date.
   
7. Section 16 (h) of the Magistrate Court Act refers to preservation of property. In the case of Public Trustee v Bibi [1997] FJCA 27, the Court cited with approval the principle laid down in the case of Williams v Williams (1882) 20 Ch.659 at page 664 that:
   

‘There is by the common law no property in a dead human body’.

8. It is for this reason, section 16(h) of the Magistrates Court Act is not applicable. Whilst I have my doubts as to the powers of this Court in deciding matters involving a dead body. In the case of Calma v Sesar [1992] Northern Territory of Australia Supreme Court No. 17, the Court held;
   

‘It is clear that there is no property in human corpse held for the purposes of burial. What the law recognises as incident to the duty to dispose of the body is the right to the possession of the body until it is disposed of’.

9. I accept that in the Magistrates Court, there is a limited jurisdiction under the Burials and Funerals Act, Cap 117 of Fiji. In any event, there is a dispute before the Court. The main function of any Court of law is to resolve disputes that come before it. As correctly stated by Counsel for the Defendant, the issue herein is which of the two parties have the right to dispose of the body of the deceased. For the reasons stated, the preliminary issue was therefore dismissed and the matter proceeded to a substantive hearing.
   

The Law

10. Section 12 of the Burials and Funerals Act, Cap 117 of Fiji refers to restrictions on burial and cremation of dead bodies. It provide that:
    
    • (a) ‘No person shall bury or cremate or cause to be buried or cremated any dead body, unless there is delivered to and be held by him either- (a) a death certificate and at (c) an Order of a Magistrate’.
      

The Hearing

11. Despite the urgency and the expedited nature of the proceedings, both parties called a total of twelve witnesses, 6 witnesses on either side. At the heart of this dispute is the Plaintiff, the defacto wife and her in laws as Defendants. This dispute has led to what I would describe as an undesirable situation that being, in that the body of the deceased is yet to be disposed of by either burial or cremation. It is disrespectful of the deceased and offensive to ordinary standards of common decency.
    
12. I have read all the documents filed herein and I have heard the oral testimonies of all the witnesses. The Affidavits were lengthy given the short reading time and the oral testimonies full of assertion and counter assertions. The reliability of all witnesses is an issue given the circumstances. All the parties involved are grieving, emotions are high that individuals have taken sides. I suspect that some of the testimonies were down right dishonest while some were sugar coated with half-truths. In saying this, I adopt the sentiments of his Honour, Hargrave, J in the case of Keller v Keller [2007] Victoria Supreme Court No. 118 that:
    

‘The Court ought not, in an application such as this, embark upon a lengthy adversarial hearing to resolve the various claims and counter claims. This would delay the decision for an unacceptable period whilst the body remained undisposed of. Accordingly, cross examinations will usually be inappropriate’.

13. In the case herein, it seems to me that the Court was being invited to adjudicate the issue based on religious and/or spiritual matters. In the case of Calma v Sesar (supra) the Court observed that:
    

‘issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found, not one based on competing emotions and the wishes of the living, except as they reflect a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values’.

14. The Court further stated:
    

‘The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the Court resolve the argument in a practical way, paying due regard to the need to have a dead body disposed of without unreasonable delay but will all proper respect and decency’.

15. I hold the view that the approach advocated by both Counsel at the Hearing of this matter place undue emphasis on religious and spiritual matters that the parties were in danger of losing sight of what was important under the circumstances that being the disposal of the body of the deceased with proper respect and decency.
    

Legal Analysis

16. Both parties agree that the deceased died intestate, meaning that there is no Will of the deceased. How then should the Court proceed to determine the dispute?
    
17. In the case of Jones v Dodd [1999] South Australia Supreme Court No. 125, the Court at first instance, stated that ‘in the absence of a Will, the right to burial vests in the next of kin in order of their relationship to the deceased, that is, children of full age, parents, brothers and sisters or more distant kin’. In the case herein, I am of the view that the ‘kinship rule’ is practical, consistent, precise and appropriate under the circumstances.
    
18. Counsel for the Plaintiff submits that the Plaintiff and the deceased were in a defacto relationship. This relationship is recognised under the Family Law Act of Fiji 2003. Therefore, the deceased should be buried under Islamic Rites. Secondly, the deceased had converted to Islam, was married in a traditional Islamic wedding ceremony and has 3 Islamic children. On the other hand, Counsel for the Defendant(s) submits that the relationship between the Plaintiff and the deceased has broken down and they have separated. Secondly, he has returned home and was practicing Hindu. Lastly, it is the wish of their mother, the 2^nd Defendant for the deceased to be cremated in a Hindu ceremony.
    
19. The relevant issue to consider at this stage is whether the deceased and the Plaintiff were still in a defacto relationship at the time of his demise?
    
20. I am convinced that the deceased and the Plaintiff did fell in love about 10 years ago. I accept that, at that point in his life, the deceased was so in love with the Plaintiff that he did left his home, his mother and siblings to go live with the Plaintiff. I also accept on a balance of probability that out of love for the Plaintiff, he did convert to Islam and was married in a traditional Islamic wedding ceremony with the Plaintiff. I also accept that the union produced children, all of who are still of tender years.
    
21. It is also clear from the documents filed and the oral testimonies of some of the witnesses that the deceased and the Plaintiff had marital problems. It started around six years ago. The two were not able to resolve their marital problems that finally came to a head on the 23^rd of May, 2017 when the Plaintiff lodged a complaint to the Police at the Ba Police Station for assault. At the hearing, the Plaintiff denied lodging a complaint and signing the complaint. I find that hard to believe. The deceased was taken to the Police Station for questioning and was finally charged for the criminal offence of Common Assault. On the 24^th of May, 2017, an interim non domestic violence restraining order was also issued against the deceased.
    
22. At this point, the parties separated. The Plaintiff remained at Tauvegavega with the children while the deceased was living at a Mr. Dean’s residence. It is probable that the deceased did visit Tauvegavega in the last 12 months, however, I believe that it was to visit the children. It is also clear that the deceased resided at the home of Mr. Dean until the day of his demise. In light of the facts, I find on a balance of probability that the deceased and the Plaintiff had marital problems that had adversely affected their married life. He was in the process of returning to his family, the Defendant(s) and was also returning to his Hindu roots.
    
23. In his record of interview with the Police attached as annexure 4 in the Affidavit of Rajend Singh, the deceased was asked the question ‘how is the relationship between you and your wife? He answered that ‘we are having problems’. He was further asked, ‘what kind of problems you having? He answered that ‘my wife is having affair with another man’. During her oral testimony, the Plaintiff simply stated that she and the deceased had marital problems. When she was asked in cross examination to explain the problems she was evasive and did not give a straight answer. The main thrust of her testimony was that the two of them had reconciled and were back together. I cannot accept her testimony.
    
24. It is apparent that the deceased sacrificed a lot in the name of love to be with her and to marry her. I find it rather strange that the Plaintiff omitted to reminiscent about the day the two of them met, the love that they had for each other, the pain and regret of not being able to resolve issues amicably and confessions of a love lost in her testimony. On the other hand, the recorded statement given to the Police by the deceased is indicative of his deep feelings of betrayal. I therefore have no doubt in my mind that the deceased and the Plaintiff were no longer in a defacto relationship at the time of his demise. The two of them were living separately and were leading separate lives. The only common denominator between them is the children.
    
25. Finally, I note that the notification of death of the deceased is in the possession of the 1^st Defendant. In applying the provisions of Section 12 of the Burials and Funerals Act, it is the 1^st Defendant who is entitled by law to dispose of the body of the deceased.
    
26. In light of the foregoing, I hereby issue the following Final Orders, that:
    
    1. The interim injunction dated 26^th October, 2018 is hereby dissolved.
       
    2. The Officer in Charge at the Hospital Morgue whether it be Ba and/or Tavua and/or Lautoka to release the body of the deceased herein to the Defendant(s) who are hereby given a specific undertaking of disposing the body of the deceased as soon as practical (if possible within the next 48 hours but no later than the 9^th of November, 2018) with due respect and decency.
       
    100. The Plaintiff and the children are at liberty to attend and be present at the funeral to farewell the deceased with a condition not to interfere with the rituals adopted and/or chosen by the Defendant(s) for the purpose of (b) above.
         
    4. The Police are to be present with every step of the procession beginning from the Mortuary to the Cemetery under the pretext of crowd control.
       
    5. Any party aggrieved by this decision is entitled to lodge an appeal.
       

Ordered Accordingly,

..........................................
JEREMAIA N. LEWARAVU
RESIDENT MAGISTRATE
5^th of November, 2018.