Narayan v Rukmani [1979] FJSC 24; Civil Appeal 19 OF 1979 (21 December 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Civil Appeal No. 19 of 1979

BETWEEN

NARAYAN
s/o Yankanna
(Appellant)

AND

RUKMANI
d/o Gopal
(Respondent)

Messrs. Stuart, Reddy & Co. for the Appellant
Respondent in person

JUDGMENT

The appellant and respondent were married and had 5 children of the marriage. They were divorced and in 1973 a maintenance order was made in respect of the respondent and the children amounting to $30 per month.

In 1975 there was an application by the respondent to increase the amount of maintenance resulting in a new order for maintenance amounting to $36 per month; $36 per month; $12 of which appears to have been for the respondent herself and the rest for the children.

In July 1979 there were counter applications by the appellant and the respondent. The appellant sought a reduction in the amount of maintenance he should pay and the respondent sought an increase in the amount payable to her.

It is an agreed fact that all the children of the marriage are at an age where maintenance is no longer payable for them so in fact the whole of the proceedings was concerned with the $12 per month maintenance then being paid to the respondent.

Variation of maintenance orders is covered by section 8(1) of the Maintenance and Affiliation Act 1971 which reads as follows:-

"A magistrate having jurisdiction in the place in which an order under the provisions of this Part of this Act has been made may, upon the application of either spouse and upon cause being shown upon evidence of a change in circumstances not occasioned by the default or neglect of the applicant, to the satisfaction of the magistrate, at any time alter, vary or discharge and such order and may upon any such application from time to time increase or diminish the amount of any weekly payment order to be made."

It will be seen from the wording of this provision that a pre-requisite for varying a maintenance order is a change of circumstances in the parties, and it surely follows from this that any variation must be made in the light of such change of circumstances. In respect of similar provision in the laws of England Wilmer LJ said in Foster v Foster (1964) 3 AER 541

"Two things seem to emerge from that. The first is that the jurisdiction is a jurisdiction to vary and basically what the court has to do is to consider whether an order to vary should be made, and if so, by how much the order should be varied. Prima facie, it is not a jurisdiction to refix de novo the amount of maintenance. Secondly the court is specifically directed to take into consideration any increase or decrease in the means of either of the parties."

The law in Fiji may not be quite so specific with regard to the second point, but it is a reasonable inference that a similar line of approach is necessary here.

The main ground of appeal to this court is that instead of approaching the problem this way the magistrate really dealt with it as though deciding the question of maintenance de novo. There are some grounds for this argument. What the magistrate said at the beginning of the proceedings was "I will first consider whether the Respondent (present appellant) should pay anything at all, then whether he should increase the present amount." This is not quite the same thing as taking the existing order and then in the light of the changed circumstances considering whether and to what extent it should be varied.

In the event he ordered the appellant to pay $6 per week maintenance to the respondent for herself, the order in respect of the children lapsing.

So in effect he doubled payment to the respondent, which can in no way reflect the change in each's circumstances. So far as the respondent was concerned the only reason for increasing her maintenance was the rise in the cost of living. On the other hand in her favour was the fact that the children are all grown up and presumably will be helping her instead of vice versa, and the fact that she has let one of the rooms in the house given to her by the appellant for about $20 a month.

The appellant's position has already improved. For medical reasons he has obliged to leave his regular employment and cannot take similar employment. According to the appellant he hasn't been able to take or get another job, but the magistrate was not very impressed with this evidence and seemed to think that the appellant has been exaggerating his difficulties for the purpose of these proceedings and could with a little effort find himself a worthwhile job. And of course he has been relieved of the burden of paying maintenance for his children. That I think is a reasonable conclusion, but in the absence of rather more conclusive evidence of an increase in the appellant's financial position I don't think there can be any justification for doubling the amount to be paid to the respondent. I think there are no grounds for increasing the amount to be paid to the respondent, though I agree that there are no good grounds for reducing it. The appeal is therefore allowed to the extent that the original maintenance order to pay $3 per week to the respondent will remain. Appellant to have costs - to be agreed or taxed.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
21st December, 1979.