Nap v Nap [2006] PGDC 22; DC583 (24 January 2006)

DC583

PAPUA NEW GUINEA
[District Court of Justice]

DCCi 472 of 2005

NAP

v.

NAP

Tabubil: P. Monouluk
2005: 28th, 29th December; 2006: 24th January.

Ruling

District Courts – Protection order application – Section 210 District Courts Act Chp. 40 – Applicant must show that the respondent is of evil fame – Distraught wife seeks additional order that respondent husband not have sexual intercourse with her pending a HIV test – Further application that the husband undergoes a HIV test before sexual intercourse can take place.

HIV/AIDS Management and Prevention Act 2002 – Application by distraught wife to have husband undergo HIV test – Subject to the Act, HIV test must be voluntary –Tests done outside the spirit of the Act may be unconstitutional – Whether the courts do have the power to order tests in situations other than those prescribed under the Act – Unlike the District Courts, the Supreme and the National Courts do have inherent powers to order tests where the justice of the case warrants.

Applicant in person
Respondent in person

24th January 2006.

1. P. Monouluk: The applicant wife is seeking a protection order against her respondent husband. The wife seeks to have her husband placed on good behaviour bond and also be restrain from having sexual intercourse with her because she claims that he has maintained sexual relationships with other women elsewhere and such conduct by him has created in her a fear of her contracting the dreaded HIV virus. In addition to that she also prays for an order that her husband be directed by this court to undergo a HIV test in order to ascertain his real medical status before she can allow him to have sexual intercourse with her. This fear by the wife is based on the fact (which is not denied by her husband) that in 2002 she had contracted a sexually transmitted disease (STD) from him.

2. In respond the husband does not deny his involvement with other women however he insists that he is HIV free and to prove that he voluntarily underwent a HIV test soon after the case was adjourned for the day. The next day the parties indicated to the court that such a test was held the previous day and the preliminary result returned indicates negative. Despite that the wife insisted that the result itself is merely preliminary and a further test is required to fully confirm her husband’s actual status in order to put her at ease. In the mean time she pleaded that he be ordered to keep the peace and not to interfere with her as far as sex is concern. It seemed to me the use of condom offers her no guarantee at all.

3. This particular application is made pursuant to Section 210 District Courts Act Chp.40. Under this provision the wife is required by law to show that her husband is a person of evil fame; that he has a record of past bad behaviour towards her and such conduct has created in her a reasonable fear of her own safety therefore he be ordered by the court to find sufficient sureties to keep the peace.

4. The order sought by the wife is twofold. Firstly for her husband to keep the peace and further be restrain from having sexual intercourse with her, and secondly; that he be ordered to undergo a HIV test. For our purposes I will firstly deal with the wife’s bid to have her husband undergo a HIV test. While the husband had taken upon himself and underwent a test (which returned negative) the plea by the wife does raise an issue that needs clarification.

5. According to the HIV/AIDS Management and Protection Act 2002 (the HAMP Act) a court does not have the power to order a person to undergo a HIV test except in a situation where that person is charged with an offence either under S. 298 or 340 Criminal Code Act Chp. 262 where the accused is alleged to have intended to transmit HIV virus to another. This is clearly spelt out under S.23 HAMP Act. In any other situation a court, whether it be the Supreme or the National or the District Court, cannot order a person to undergo such a test. This is not to say that the effect of S. 23 of the Act (supra) removes power from the Supreme and the National Courts. Pursuant to S. 155(4) Constitution the Supreme and the National Courts do retain an inherent power and can order a test despite S.13 as demands the justice of the case, unlike that of the District Courts which has no such extra-ordinary jurisdiction.

6. As far as the HAMP Act is concern a HIV test must be voluntary. Of course, there are certain circumstances under the Act where tests can be done without consent. For a court to order a test outside those provided by the Act may amount to an interference of an individual right and be deemed unconstitutional. In my belief the present situation does not fall safely into the category that can warrant an order from this court to coerce the husband into submitting to a HIV test. It is now a matter entirely up to the husband’s own conscience, and in this case we have seen him voluntarily underwent a test for the convenience of his wife.

7. The next issue is whether the situation faced by the wife does warrant an order to retrain her husband from having sexual intercourse with her. I have never come across an application where a distraught wife seeks such an order pending a confirmation HIV test to first take place. The question I must ask myself now is whether the wife can be granted an order under S. 210 of the Act to stop her husband from having sexual intercourse with her prior to that second test result?

8. I believe this court can. As far as the law is concern it is possible. S. 210 refers to a situation where the respondent is said to have a history or a widespread reputation of negative behaviour and the possibility of a reoccurrence is high if nothing is done. In the present case there is no denial that the husband has and continues to maintained sexual relationships with other women and in 2002 he was responsible for his wife contracting a STD.

9. Firstly, there is no law in place that the she can find assurance, protection, safety and security from as a wife. Even S. 347Criminal Code Act Chp. 262 which deals with the offence of rape, cannot offer any help to a wife who refuses sexual intercourse with her husband for fear of being infected with a STD or HIV virus. Under this provision it is no rape at all if a sexual intercourse between a husband and wife was done without the consent of the latter. The lack of consent is immaterial. As long as the woman is proved to be the wife of the accused that alone is sufficient to have the case thrown out hence the wife is basically at the mercy of the husband. Ss. 349 of the Act (supra) and 6(3) Summary Offences Act Chp. 264 which deals with assaults may not be the best options for the wife either. The effects of these provisions are curative in nature.

10. It is clear that the wife is seeking an order the nature of which is preventive rather than curative. The wife, it seemed, is more interested in the prevention aspect of an act of sexual intercourse upon her person that she views as real possible and such act may be a life threatening one to her. If an act of sexual intercourse is allowed to take place prior to the subsequent follow up test then her fear is that she may be infected with HIV virus which we all know will inevitably lead to an early death. To her prevention is better than cure therefore as a safety measure she must be absolutely sure that she is at no risk before she can consent to sex with her husband. In the meantime she desires her husband to respect her wishes and she believes a court order will help him do just that.

11. Secondly, this application is a matter of life or death. It is based on the fear of a possible risk of HIV infection which usually leads to an early loss of life. This is the fear that caused the wife to come to court in the first place to plead her course oblivious to the embarrassment and ridicule that may follow. The wife says in her affidavit that she once contracted a STD from her husband who has since not change his behaviour for the better. Since he has continued to maintain his affairs it is her fear that she now faces a real risk of a possible HIV infection which we know has no cure. She makes it clear that she still loves her husband however for the sake of her life and that of their three young children he be restraint until the confirmation test result is out.

12. I must say that the husband’s sexual behaviour outside of his marriage is certainly a cause for concern and is unacceptable especially when such behaviour poses or creates dangers or risks to the lives of his wife and that of their children. When that happens then it is only right that the husband be held accountable for his actions or the lack of it. I believe a spouse must take all reasonable actions to avoid contracting the HIV virus and, if infected, must take all necessary precautions to prevent the actual transmission to his/her partner. Any behaviour that falls short of the expected standard set by the law and the society as a whole, and exposes innocent spouses to a significant risk of HIV infection is deplorable and the perpetrators of such reckless behaviour must be dealt with severely bearing in mind the consequences of such indiscretion. In the present case the husband’s actions directly place at risk the lives of his wife and that of their three young children therefore he is now call upon to change his attitude for the better in order to ensure safety for himself and that of his family.

13. Thirdly, this application is about respect for a spouse. A husband must respect his wife and vice versa. Many a times selfishness has crept into marriage relationships and blinded us to the needs of our spouses to the point that our needs, wants, and desires, no matter how wrong they may be, takes precedent over those of our spouses. Many of us no longer value the emotions and feelings of our spouses. Our emotions and feelings are more important then those of our spouses. We have become self centered and lost respect for those nearer to us.

14. This is exactly what the wife is seeking from her husband. She wants her husband to respect her as an individual, a wife and a mother of his three young children. Presently she feels that she is not being accorded this recognition from her husband. By virtue of his relationship to his wife as her husband and the father of her children he is legally and morally obliged to conduct himself in a manner that portrays to others respect for himself and his family. It is the lack of respect and self centeredness that has seen the destruction of a lot of relationships because people value and love themselves more than their neighbours.

15. Based on these considerations I have briefly mentioned I hereby grant the wife’s application and order that her husband be placed on good behaviour bond and further ordered that he be refrained from having sexual intercourse with his wife until a further HIV test confirmation is returned.

Orders accordingly.