Olwen v Tiso [2003] PGDC 34; DC432 (13 March 2003)

DC432

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO186 OF 2003

Senan Ess Olwen
Plaintiff

V

Lucy Tiso
Defendant

Mendi: Tat Akali, Dcm.
2003: 13 of March

District Courts Act section 22. Application by husband to order wife to come back to him. Custom considered. Custom repugnant to principles of human dignity. Application misconceived.

Counsel
Complainant; In person
Defendant; No Appearance

TAT AKALI, DCM. This is an application under section 22 of the District Court Act to order the defendant who is the wife of the complainant to come back to the complainant. The wife has left the complainant for some time. Among the orders sought as stated in the summons are

1. That the court orders the defendant to come back to the complainant.

2. That the court orders the defendant to explain why she is doing that.

3. That the court order the defendant to be placed on good behavior bond which if she breaches will be considered for imprisonment, and

4. Any other orders that this court deems appropriate.

BRIEF FACTS

The complainant and the defendant were married in 1994 in a church ceremony by a pastor Noah Jay of the United Church. From this marriage they have two children. Some 6 years later, in early 2001 the defendant left their matrimonial home at Nipa and went back to her home village of Tente in the Mendi District of the Southern Highland Province. The complainant has made considerable effort to reconcile with his wife. This is evident from the numerous village court orders and warrants of arrests that are attached to this application.

This application is another one of these attempts to get the District court to order her return to their matrimonial home at the Nipa District in the Southern Highlands Province.

Law

22. General ancillary jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it

(a) grant such relief, redress or remedy, or combination of remedies,

whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

In essence this is an application to force the defendant to remain in a relationship of marriage with the applicant, in default be imprisoned at the Corrective Institution.

Is this court able to exercise such powers under section 22 of the District Court Act? Even if the court does have such powers is the application proper and correct?

Here the defendant has left the matrimonial home and basically called it quits and just walked out of their marriage, for whatever reasons known only to themselves, and these reasons can be as numerous and as complicated as any that anyone can create in this day and age. The complainant husband runs to court seeking the courts favour to re-establish this relationship on the mistaken understanding that just because they were married in a church ceremony their relationship is enforceable by law.

This application is basically to punish a lady who has by her own choice walked out of this marriage. In the church marriage ceremony during the solemnizing under section 5 of the Marriage Act words to this effect are used

41. Explanation of marriage relationship.

(1) Subject to Subsection (2), before a marriage is solemnized by or in the presence of an authorized celebrant who is not a minister of religion of a recognized denomination he shall say to the parties, in the presence of the witnesses, the words....

"Marriage, according to law, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life", or words to that effect.

The key word is voluntarily. This then is clear that either of the parties can choose at any time to walk away. This relationship is there as long as both parties choose to maintain it and not because of any other factor.

The Advanced learners Dictionary defines Voluntary as

Doing or ready to do things, willingly, without being compelled

A relationship that ceases to have this essential element of voluntaries automatically ceases to be classified as a marriage in the liberal sense.

Custom

In the customary sense in the PNG highlands wives are considered as the property of the husbands and are in that marriage relationship because the women were bought at a considerable price. I have also become aware of many village court orders that have been made forcing women to return to their husbands, when for all civilized purposes such marriages would have long become deceased for all practical purposes.

This application is made from this angle [that women are the property of the husband].

Under the Custom Recognition Act where custom is to be recognized and applied in appropriate cases it is clear that such recognition of custom is to be qualified.

3. Recognition of custom.

(1) Subject to this Act, custom shall be recognized and enforced by, and may be pleaded in, all courts except so far as in a particular case or in a particular context –

(a) its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or

In this case the recognition of this custom that women are the property of men, would be an injustice and is certainly not in the public interest of the right and liberal thinking members of the public. This custom and practice is repugnant and must be discouraged wherever and whenever we are able to.

In the preamble of our constitution we acknowledge the worthy customs of our peoples. ...And acknowledge our noble tradition and further embrace the Christian principles that are now ours.

Our first National goal and directive principle is

1. Integral human development.

We declare our first goal to be for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others.

Will recognizing this custom that women are the property of men be assisting these women to free herself from every form of domination or oppression so that this defendant will have the opportunity to develop as a whole person? I think not, in actual fact this custom is repugnant to the general principals of human dignity and must be discouraged wherever it rears its head.

In the preamble of our constitution we acknowledge our noble traditions. Is this tradition that women are the property of men noble? We further embrace the Christian principles that are now ours. Is this tradition congruent with our adopted Christian principles? I think not.

This should not be misconstrued to mean that women in any unhappy relationship of marriage should take off at any time, but that women should never be imprisoned in a relationship that is oppressive and inhuman just because it is the custom of that area, when for all purposes the continuation of such a relationship offends against the very principles which our nation is founded upon, such as our first National goal and Directive principle.

The answer to the question of whether this court is able to make such orders as sought is obvious. The court must therefore find that this application is against the principles of human dignity and that the defendant has failed to establish his case.

Court Order
Application Misconceived
Matter struck out.