Rai v Jyoti [1979] FJSC 94; Civil Appeal 6 of 1978 (10 January 1979)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Civil Appeal No. 6 of 1978

BETWEEN

NAVIN RAI s/o Hans Raj Rai
(Appellant)

AND

CHANDRA JYOTI d/o Brij Bhushan Lal
(Respondent)

Mr. K.C. Ramrakha for the Appellant
Mr. S. M. Koya for the Respondent

JUDGMENT

This is an appeal from the Suva Magistrate's Court wherein following the hearing of a complaint brought by the respondent under the Maintenance and Affiliation Act, 1971, the appellant was found to be in desertion of his wife and children, guilty of persistent cruelty and of wilful neglect to provide reasonable maintenance and was ordered to pay maintenance in the sum of $20 per week for the respondent and of $10 per week for each of the two children of the marriage, making a total, payment of $40 per week.

The facts appearing on the record and accepted by the learned Magistrate can be set out fairly briefly.

The parties were married on 3rd March, 1975 in India where they had met as students in that country. Theirs was a marriage of love as opposed to the customary arranged marriage under which romantic feelings do not often prevail. On their return to Fiji they lived with appellant's father in Ba who runs an aerated water factory. Within a short period problems started for them. The respondent and her mother-in-law did not get on well together and whenever there was a difference of opinion between them which was not infrequent the appellant would openly take his mother's side. Respondent was made to do more than her fair share of work in the house. As a result the relationship between the parties soon began to deteriorate. The appellant became obnoxious in his conduct towards his wife and would assault her at the slightest or with little provocation. This went on more or less persistently over a period from about February 1976. Once the appellant came home drunk in the early hours of the morning and assaulted the respondent causing injuries to her shoulder and face. As a result of that incident the respondent got her father to take her away to Suva. In July following a reconciliation in Court the respondent returned to live with the appellant at Ba but no sooner had she settled down she was again violently assaulted by the appellant and as a result of which she received a black eye. She was assaulted several times afterwards and at a time when she was pregnant. She was not given adequate food nor was she given money to see a doctor. She gave birth to her first child on 7th April, 1977 at Ba Mission Hospital. Appellant went to see her once or twice at the hospital but none from his family. Her life of drudgery did not stop during her pregnancy. The respondent had been doing all the housework and washing for the family up to the day before she gave birth. In December 1976 she had a dispute with her mother-in-law about the purchase of a washing line and pegs and afterwards when appellant came to know about it he severely assaulted the respondent inflicting cuts to her face. The scar from these injuries is still visible on her face. This was at a time when she was three months' pregnant with her second child. After that following another assault on her by the appellant she sent words her father to take her and the child away from Ba. This her father did in January 1978. She has been staying with her parents in Suva ever since. Her second child was born on 16th May, 1978. The appellant did/provide any form of subsistence for the respondent and their first child on the first occasion the respondent was forced to leave him and this was repeated on the second occasion when circumstances drove the respondent away from appellant.

From the facts in this case it is clear that one of the major reasons for the difficulty in the parties' marriage was the inability of the respondent and her "in laws" to get along together. However that might not have been crucial if the appellant had not taken sides with his parents to the extent of turning himself into a pugnacious husband. The appellant had shown throughout his relationship with his wife an utter lack of compassion and sympathy for her welfare and happiness. Although theirs was a "love" marriage it struck disaster mainly because the appellant failed to display conjugal kindness towards his wife.

Under the first ground of appeal it is contended that the learned Magistrate erred in law and fact in finding the appellant guilty of persistent cruelty, when the evidence led by the respondent fell far short of this grave and serious charge, and there was no evidence led that her health was being undermined. In regard to this contention it is only necessary to refer to Gollins v Gollins [1963] UKHL 5; [1963] 2 All E. R. 966 where at page 992 Lord Pearce describes the main elements in the legal concept of cruelty. He states:

"When the two parties and the evidence are before the court it is easier to form a view than to pronounce in the abstract. That view, though it makes allowance for the subjective emotions, temperament and excuses of the individuals, judges the conduct by its probable consequences, and thus decides the question of fact and degree whether this conduct between these spouses was cruel. It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness caused injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it."

Such conduct has also been described in this connection as grave and weighty. There is ample evidence that the appellant consistently ill-treated his wife throughout the period they were together. Apart from this his wife was subjected to a life of physical drudgery without objection from the appellant. Although there is no direct evidence on the matter I think it is fair and reasonable to infer that from the evidence in this case that the respondent's health was being injured or at least ran a real risk of being injured by the kind of conduct meted out upon her by the appellant. On any view the appellant's conduct towards the respondent was most reprehensible and grave indeed. I am satisfied that on the evidence before him the learned Magistrate was justified in holding that the appellant had been guilty of persistent cruelty. Therefore I find no substance in this ground of appeal.

Two other grounds of appeal may be dealt with together as under them it is contended that the learned Magistrate erred in law and fact is finding the appellant guilty of desertion, inasmuch as the complaint gave evidence that she did not wish to bring cohabitation to an end but imposed conditions for the resumption of their married life and in these circumstances it is contended that the respondent acted unreasonably and should have been held in desertion herself. The learned Magistrate found constructive desertion against the appellant. He based his finding on the evidence of cruel conduct by the appellant towards his wife. The basis of the finding was that appellant's conduct towards his wife was of such grave and weighty nature that the respondent was left with little choice but to live apart from the appellant. The appellant by his conduct had put his wife in a situation which was not only most humiliating for her but also inimical to her state of health that she was obliged in her own best interests to stay away from her husband. Viewed in the context of their worsening marital relationship I do not think there could be anything unreasonable in her offer to resume cohabitation only on condition her husband leave the Western area. It was obviously done in the sincere hope of salvaging their marriage. However, her husband did not see fit or have the inclination and will to comply. Thus given the background of ill-treatment to which the respondent was subjected coupled with a life of humiliation I do not think a reasonable person would expect her to continue to endure it. There is little doubt from the circumstances of this case that the overall effect of appellant's conduct was expulsive. I am satisfied that the learned Magistrate was correct in finding constructive desertion against the appellant. Accordingly I find no merit in these grounds of appeal.

Under the remaining grounds of appeal it is contended that the quantum awarded in maintenance, namely $40 per week was exorbitant and punitive and was arbitrarily assessed without taking into account the current or true potential income of the appellant. It is said that the learned Magistrate based his assessment on mere speculation with regard to the appellant's means. Counsel for appellant submits that in order that a sum of $40 per week could properly be levied the appellant must be shown to be in receipt of an income of at least $100 (free of tax) per week. He says that the respondent on whom the onus of proof lies has not been able to show that appellant was earning or capable of earning such an amount. According to counsel, apart from the fact that the evidence as to means was unsatisfactory, whatever evidence there is shows quite clearly that the appellant was not in fact earning $100 per week nor could it be shown that he was potentially capable of earning that much.

With respect this court is inclined to agree that upon the evidence, such as it is, which was placed before the learned Magistrate an award of $40 per week would appear to be somewhat on the high side. There is no evidence that the appellant was receiving a fixed or regular income on which a proper assessment for maintenance could be made. Even if he was in receipt of a regular income, such an amount is not known. According to information in his income tax return for 1976 his last known income before tax was $1541. We do not know what his incomes have been during the years 1977 and 1978. What is clear however is that the appellant has been working with his father in running the aerated water factory but there is no information as to what he was getting by way of wages. No attempt was made by the appellant to apprise the Court about his current income and this failure had caused the learned Magistrate to observe, not unjustly I think, that the appellant had tried to conceal his income with a view to evade his responsibilities to his wife and children. Be that as it may I think it would be wrong for a court to impose an ostensibly heavy maintenance without the necessary supporting evidence of means. In these circumstances I think it is only fair and proper to make some adjustments to the award made in this Court below. In varying the award this Court is anxious to strike a figure which, bearing in mind the appellant's age, educational background and family connections, will leave one reasonably satisfied that the appellant should be able to afford. Accordingly I set aside the award of $40 per week and in lieu thereof it is ordered that the appellant shall pay maintenance in the sum of $15 per week for his wife and $5 per week for each of his two children. In case this assessment may appear to be less than fair to one or other of the parties, it should be pointed out that either of them is at liberty to apply for further variation on the basis of fresh and new evidence of means. This order shall take effect from the date of adjudication in the court below, namely 1st September, 1978. Credit must of course be given for all monies paid under the interim order for maintenance. The respondent will have her costs of this appeal.

T.U. Tuivaga
JUDGE

Suva
10th January, 1979