Alus v Pomalih [2007] PGDC 153; DC769 (29 August 2007)

DC 769

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS FAMILY COURT JURISDICTION]

FC 157 of 2007

BETWEEN

NAKI ALUS

AND

PETER POMALIH

Lorengau: G. Madu, PM

2007: August 29

CIVIL - Maintenance proceedings - Section 2 and 3 of Deserted Wives and Childrens Act - Leaving without means of support - Orders for allowances for use of wife and children.

CIVIL - Reasonable cause for leaving matrimonial home - Proof of mistreatment required - Proof of extra marital affair proven - Refusal to admit to matrimonial home - Maintenance justified for wife and children.

Cases Cited

Brennan -v- Brennan [1973] PNGLR 372 Winare -v- Winare (Port Moresby District Court No. 985 of 1981.

Legislation

Deserted Wives and Childrens Act, Chapter 277

G. Madu, PM: In this proceeding, the complainant is claiming maintenance against the defendant under Deserted Wives and Childrens Act, Chapter 277 for herself and their four (4) children of marriage.

1. The brief facts are as follows;

The complainant stated that her marriage to the defendant was a happy one until year 2004, he got married to the second wife. This brought about a lot of argument between herself and the defendant.

2. These argument results in fights and complainant gets belted and would suffer from pains to her body. This continued into year 2005. On 2 of March 2005, the defendant belted the complainant and inflicted serious injuries on her body, so she left for Wewak on 5 of March 2005 because she could not bear anymore of defendant’s violent behaviour.

3. The complainant returned on December 2006 to Manus. On her arrival, the complainant went to her matrimonial home but the defendant rejected her so she went to stay with her relatives.

4. This matter was then brought to the Village Court by way of summons. After deliberating the problem, the defendant still refused to allow the complainant to go back to live with him but wanted to see the children move freely between the complainant and himself.

5. The complainant claims that if the defendant is still refusing to accept her back into the house than the defendant should continue to pay maintenance to her and the children.

6. The issues to determine are:-

(a) whether there is constructive desertion?

(b) whether the defendant should pay maintenance to complainant and the children?

7. The law is stated under the Deserted Wives and Childrens Act, chapter 277.

Section 2 - Power of Court to issue summons or warrant

(1) where –

(a) a husband has unlawfully deserted his wife or left her without means of support; or

(b) a father has deserted his child or left him without means of support; or

(c) ......................

Section 3 - Hearing and order

(1) on the hearing of a complaint under Section 2, the Court shall inquire into the matter and -

(a) where it is satisfied that -

(i) the wife is left without means of support; or

(ii) ..................

The Court may -

(iii) order the defendant to pay such allowances as it considers reasonable for the use of the wife; and

(iv) commit the legal custody of a child of the marriage to a wife or some other person; and

(v) .....................

8. According to the law as stated, the complainant has quite appropriately taken action against the defendant for his refusal to allow her to live in the matrimonial home and failing to making any provision for welfare and well being of the children and herself.

9. I will address the first issue whether there is a desertion. The defendant contended in his evidence and in cross-examination that the complainant collaborated with her relatives and left for Wewak without his knowledge or consent. He argued that the complainant did secretly plan to leave Lorengau.

10. He further stated that she was away from 5 of May 2005 and returned to Lorengau in December 2006, a total of seven (7) months. During that period he was not sure of her movement in Wewak and therefore could not accept her back as his wife.

11. The complainant in her evidence stated that the defendant was of violent behaviour and use to continuously beat her up when there is an argument at home. On 2 of May 2005, it was one of the worse beating she had from the defendant where she sustained serious injuries.

12. It was for her safety from defendant continues beating that complainant decided to leave for her home. She stated, her reasons for leaving him was to allow him time to think over things and reconsider his violent behaviour.

13. The similar situation was discussed in the case of Brennan -v- Brennan [1973] PNGLR 372 where Minogue C.J held that the husband threats and intermitten acts of violence and brutality amounted to cruelty. Even though the attacks were sometimes several months apart, the husband’s conduct over a period of more than a year represented a persistent and continuing threats to the wife’s health. The requirement that the cruelty be “habitual” can be satisfied by showing to other party’s continuing disposition to cruel conduct and the effect of the conduct on petitioner’s health.

14. There is further evidence of defendant having an affair with another female whom the defendant regards as his second wife. The defendant in his evidence and in cross-examination stated that the complainant consented to his relationship with the woman.

15. This assertion may be true or false will very much depend on evidence he gives to the Court. This is not so as the defendant did not provide evidence to support his case. The complainant in her evidence stated that their relationship as wife and husband was good and lived a happy married life until the defendant started to have an affair with his now second wife.

16. This is when the defendant started to mistreat the complainant because of her disapproval of the relationship. It was on the 2 of May 2005 that she decided to leave after being belted badly by the defendant.

17. Her action of refusing to agree on defendant to enter into extra marital relationship justify her leaving the defendant and going to her home town Wewak because she could not bear anymore of such cruelty and continue to suffer the pains from defendant’s beating.

18. There is also further evidence given to the Court that when the complainant left the defendant and went to Wewak, the defendant then brought in his current wife to live with him.

19. In cross-examination, the defendant said that his present wife was brought into his home because the complainant left the bigger children with him. He brought the present wife during the complainant’s absence to look after the children.

20. This in itself is another clear indication of the defendant’s rejection of the complainant in resuming their marital relationship. From evidence addressed to the Court, it is my humble view that the defendant has constructively deserted the complainant and the children.

21. I shall now go into second issue of whether the defendant should pay maintenance to the complainant and the children? and what would be reasonable amount?

22. The complainant stated that since her return to Manus from Wewak, the defendant refused to accommodate her so she is living with her relatives. Since the evidence is very

clear that she is under another person’s roof, this justifies for defendant to be responsible for her welfare as well as the four (4) children who are with her.

23. The case in Winare -v- Winare (Port Moresby District Court No. 985 of 1981) discusses a different scenario to the one in issue. In Winare’s case, the husband and wife entered a statutory marriage in 1968. There were several children of the marriage. 1980, the wife went to the village to visit her parents. Subsequently when she heard that the husband had began living with another woman, she refused to return to him and went to live with relatives in Port Moresby.

24. She then began proceedings in the District Court seeking maintenance for herself and the two (2) children. The Court held that in view of the husband’s behaviour, it was not reasonable to expect the wife to return to him. He was found to be in constructive desertion and was ordered to pay fortnightly maintenance of K20.00 for the wife and K25.00 for the children.

25. Although the facts may not be similar but the principle held in Winare’s case is applicable in this instant case. Although the complainant knew that she had a matrimonial home and had gone there but the defendant could not accept her back. The complainant knew that her marriage to defendant was still intact and had not been dissolved.

26. Her action was reasonable whilst defendant acted unreasonably to refuse her and forcing her out of the house. This warrants the complainant to claim maintenance for her and the children. Since the four (4) children are living with the complainant, the custody of the children is awarded to the complainant with defendant given access to visit.

Orders accordingly.

For the Complainant - In Person
For the Defendant - In Person