Geni v Hiove [2003] PGDC 19; DC168 (19 August 2003)

DC168

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

NO 97 OF2003

Dona Geni
Complainant

V-

Orila Hiove
First Defendant

Linda
Second

Port Moresby: Gauu, Dcm.
2003: 19 August.

DECISION OF THE COURT

This is a trial in which the Complainant sued the Defendant for committing Adultery. The matter is heard ex parte.

The brief facts as based on the evidence of the Complainant are as follows. The Complainant is from. Kalapa Village in Rigo District. The Defendant is from Koiari in the Sogeri District both from the Central Province. They were married in 1993 at Kupiano by custom. They had two children namely Jimmy and Kila. The Defendant was working for Landwell Company in Kupiano when they met and got married.

In 1999 the Defendant left Kupiano in search of better job in Port Moresby. Since then he never returned to the Complainant. The Complainant has brought up the two children on her own at Kalapa Village in Kupiano. In March 2003 the Complainant learnt of the Defendant been married to another lady namely Linda from Kerema. They are now both living at Inilea in Bereina, as wife and husband.

The marriage between the Complainant and the Defendant was a defector relationship. There were no Bride Price payment made. According to the Kalapa custom before the girl leaves her parental home, the husband to be must prepare a small feast plus small amount of cash to the girl's parents or relative. After performing this customary requirement the girl leaves her parents and she goes and lives with her husband. This custom had not been performed. The Defendant has not appeared in Court to give his Koiari Customary Marriage. I will therefore consider the Customary marriage of Kalapa people.

There are three types of marriages, these are - Registered marriage pursuant to the Marriage Act, the Customary marriage and the Status marriage.

The Customary marriage is based on the customs of certain ethnic groups. Some customs require bride price payment as in the Central Province and the Highlands Region. Most part of the Country perform bride price payment. In other parts of the country they will only required exchange of cooked food and gifts as in the Milne Bay Province. So Customary marriage varies from custom to custom.

In our present case the Kalapa custom require a small feast with some cash payment first before the payment of the bride price. Both these requirements have not been performed. Thus according to the Kalapa customary there was no Customary marriage, they were just living in a defector relationship.

Judge Injia said in the case of COPLAND OA & ESTHER KORUA -V- NELSON KORUA N1871 of 1999 unreported National Court judgement: "The payment of bride price is a district payment which has some public ceremonial significant".

In other words payment of bride price could not be paid secretly. It is done in a public ceremony. Justice Injia also said in ELMA JOHN & LUKE MANE -V-JOHN NAKE in the unreported National Court judgement delivered in Lae on 14th May 1999 that:

"the payment of bride price is an essential pre-requisite to the existence and recognition of a customary marriage Bride Price is the fundamental pillar of a customary marriage. If the woman's parents waive their rights to demand bride price for their daughter that may be permissible".

There is no evidence before this Court that the complainant's parents have waived their right to demand pride price. In areas were payment of bride price is performed, there can be no customary marriage where bride price has not been performed. Justice Brown, in the case of PAULINE TITUS & NATHAN KIGOLENA -V- SALIAU MOLEAN in Appeal No. 137 of 1992 in the unreported National Court judgement had this to say:

"There is no marriage by mere acceptance in accordance without custom as the parents of both parties may agree and accept the relationship between the man and a woman living together but that in itself is not a customary marriage as the woman's parents still expect the payment of bride price in future to fulfill the customary requirement of marriage".

The action for adultery can be brought to Court by the spouse of the person who committed adultery under SA of Adultery and Enticement Act. The term "spouse" is defined under s.1 of the Act as:-

"Spouse includes a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage".

Justice Brown in the TITUS & KIGOLENA -v- MOLEAN (as above) very clearly expressed what "Status of marriage" is to be. He said:

"The status of a marriage would seem to me, in the context used by the legislative, to be a situation where a valid marriage has been contracted but the formalities for instance have not been satisfied. Where pride price is paid by installments or where reciprocal feasting between the respective marriage partners clans have not been completed but will in time then there is in my view a relationship having a status of a marriage although in custom it has not finally been legitimized".

I quite agree with Justice Brown. The relationship between the couples can take many years before bride-price is paid in most part of the country. However there must be some other customary obligations performed before the bride-price payment to customary recognize the marriage as a legal binding. According the Kalapa custom neither the first required minor feast plus some cash nor the actual bride price had been met by the defendant. Under these circumstances I could not be satisfied that there was a valid customary marriage entered into by the parties.

The other matter that I need mention of is the length of separation by the parties. The defendant has left the complainant in 1999. Since then both parties have never lived together as wife and husband. In March 2003 the complainant became aware of the defendant's relationship with the other woman namely Linda of Kerema. In between this period of about four years, there had had no contact between the parties. There was no support payment of bride-price is a pre-requisite to our customary marriage coming from the defendant. The relationship has totally broken down.

The parties did not have the status of a marriage. The complainant since their relationship had been living at her own Kalapa village in Kupiano until now. And since 1999 she had never lived in the defendant's village at Koiari. Under these circumstances the parties no longer have the status of a marriage. In my view where the husband has sexual intercourse with another woman after there was a break down of the status of a marriage, there can be no adultery committed. The same can be said of the woman as well.

Having considered the evidence before me and the reasons given above I find that the defendant could not be found guilty of committing adultery. Case be dismissed and the defendant discharged forthwith.

In Person: Complainant
In Person: Complainant