Mondiai v Mondiai [2007] PGDC 143; DC818 (1 April 2007)

DC 818

PAPUA NEW GUINEA
[IN THE FAMILY COURT OF JUSTICE]

FC 817 of 2007

BETWEEN

JULIAN MONDIAI
Complainant

AND

EMMA MONDIAI
1^st Defendant

RACHEL IBOLA
2^nd Defendant

Lae:E Mosoke

2007: 01 April

CIVIL – Case Details Adultery- Meaning of “spouse” – Customary marriage – Parties-A Chimbu man and Morobean woman. Customs vary – Bride price obligation a pre-condition to valid marriage and customary obligation to look after wife’s family and their needs when need arises.

-Adultery and Enticement Act (as amended) ss1,2,4.

Cases Cited

Copeland Oa & Esther Korua – V-Nelson Korua [Unreported] NC Decision APP No. 32 & APP 33 of 1999.

Elma John & Luke Mane –V- John Nake [Unreported] NC Decision APP No501 & 502 of 1999

References

List Legislation in Alphabetical Order

Counsel

Mr. Kebere, Morobe Provincial Government, Legal Division, For The First Complainant
Mr. Mondiai, In Person, For The Respondents

01 April 2007

JUDGMENT

E Mosoke: The proceedings were brought by Julian Mondiai under the Adultery and Enticement Act. Adultery is defined by s 2 of the Act as where “a spouse engages in a voluntary sexual intercourse with a person other than his spouse”. “The word spouse has broad definition and includes a party to a relationship between a man and a woman which can be reasonably be considered as a subsisting relationship having the status of a marriage”. It is a defence under s 9 (1) (c) of the Act if it can be shown that a person believed on reasonable grounds that the person with whom the act of adultery was committed was not married. Standard of proof is the civil standard – on the balance of probabilities. s 19.

2. In Copland Oa & Esther Korua –v- Nelson Korua Injia J. defines there are three kinds of marriages namely – a registered marriage under Part V of the Marriage Act, a customary marriage recognized by Part II of the Marriage Act, and “status marriage described in s 1 (definition) under the Adultery and Enticement Act.

3. In 1993 Julian was a self-employed business woman and the first defendant was the Provincial Police Commander in Kundiawa. The couple met and the first defendant invited the complainant to be his wife and she agreed. This was the beginning of their fifteen (15) years relationship until this court action. According to the complainant it was a life long relationship until death do them apart.

4. Nema Mondiai agrees he had lived with the complainant for fifteen (15) years but their relationship is only a de facto relationship rather than a marriage. The first defendant further argues that he did not pay bride price therefore there is no marriage. He also accused the complainant of marrying a German man in church but when asked to prove it, he declined to do so. Nema Mondiai claims he did not marry Julian because she was married to the German man. It is always the case that if someone makes such an allegation against the opposing party, the onus is on the party making the allegation to provide evidence to the contrary. Nema Mondiai has failed to do so and his statement is merely a speculation to discredit the complainant.

5. Nema Mondiai in his evidence when asked by the second defendant if he was married, said; “I told her I was married to Julian Mondiai. I also told her that my marriage to Julian is by custom”. I did not pay any pride price”. In December 2006 the first defendant took six months leave and went to his village in Chimbu Province to discuss his new relationship with Rachael Ibola. He said his family had agreed to allow him to let go Julian and marry the second defendant instead.

6. On the 04 August 2007 Nema Mondiai went to Madang and paid One Thousand Kina (K1, 000.00) cash, some store goods and garden foods to the second defendant’s family as bride price and it was accepted.

7. The question is Nema Mondiai went to Chimbu to seek support of his family for a new relationship with Rachael Ibola. Why then did he not invite any member of his family to be present on this occasion to make the bride price payment?

8. In Papua New Guinea bride price payment is a big event and every member of the man’s family and those of the female must be present to witness the occasion.

9. What is left to be seen is that the first defendant acted alone without the support of his family. He initiated the bride price payment in a hasty and suspicious manner. Has he ever considered Julian as a human being who had dedicated her fifteen (15) years of “service” to the man she called as her husband? In assessing the overall evidence there is not a single person on either side of the families who did not recognize the relationship between Nema and Julian as being married. Both the complainant and the first defendant lived in Chimbu for several years and the man’s family accepted them as a married couple. The complainant called several witnesses including her brother who gave evidence that they considered the couple as being married.

10. Now, bride price payments are paid upon demand or request by the woman’s side. In this case Julian’s parents did not request bride price to be paid by the first defendant because as part of their custom Julian’s parents expected Nema Mondiai to look after them in their old age. In accordance with Finschhafen custom bride price is not a demand but the man has a customary obligation to look after the welfare of the wife’s parents and family as the need arises.

11. Some of the relevant factors to be considered in deciding the issue of marriage are as follows:-

1. Cohabitation of fifteen (15) years
   
2. Their living together recognized and accepted by both sides of the families.
   

100. The cash and pigs contributed by the first defendant on the death of the complainant’s parents represent respect and recognition of his marriage to the complainant.
     

4. Regarded by the community the couple live in as husband and wife.
   

12. Having regard to the aggregate of all relevant factors the relationship between Julian and Nema Mondiai is one in which ordinary people in the community they live in and their own people regard as one of husband and wife relationship, which is a “marriage”.

13. In conclusion it is obvious the first defendant’s action in paying bride price in a rush and without the support of his family is initiated purposely to outlaw his relationship with Julian and legalize it with Rachael Ibola.

14. The relationship between Julian Mondiai and Nema Mondiai is reasonably considered as a subsisting relationship having the “status of marriage”.

15. Therefore the defendants Nema Mondiai and Rachael Ibola are committing adultery and continue to do so in an adulterous relationship.

Orders accordingly.

Counsel
Mr. Kebere First Complainant: Morobe Provincial Legal Division
Defendant in Person Respondents Name of law firm.